People v. Trzeciak

2013 IL 114491
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 114491)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
JOSEPH TRZECIAK, Appellee.
Opinion filed November 15, 2013.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Thomas, and
Kilbride concurred in the judgment and opinion.
Justice Theis specially concurred, with opinion, joined by Justice
Karmeier.
OPINION
¶1 Defendant, Joseph Trzeciak, was convicted of the murder of
Donald Kasavich. The appellate court, with one justice dissenting,
reversed defendant’s conviction, holding that a threat made by
defendant to his wife, Laura Nilsen, that he would kill her and
Kasavich, was inadmissable under Illinois’ marital privilege, section
115-16 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-
16 (West 2010)), and that defendant was prejudiced by the
statement’s introduction at trial. 2012 IL App (1st) 100259. For the
reasons set forth below, we find that the threat was not barred by the
marital privilege and, therefore, reverse the judgment of the appellate
court.
¶2 BACKGROUND
¶3 On June 29, 2004, the victim, Donald Kasavich, was found dead
in his trailer in the Hegwisch area of Chicago. Kasavich suffered
three gunshot wounds to the head. His trailer was in disarray and a
window had been broken. Defendant, a resident of Hammond,
Indiana, was subsequently charged with Kasavich’s murder.
¶4 Prior to trial, defendant filed several motions to exclude various
pieces of evidence and testimony, including a motion to exclude
evidence of his prior acts of domestic violence against his wife, Laura
Nilsen, and a motion to exclude confidential communications made
to her. With respect to the former motion, defendant sought to
exclude his general pattern of violence and abuse toward Nilsen;
evidence that in April of 2004, defendant beat her and then drove her
to Kasavich’s trailer; and evidence that he was jealous Nilsen was
going to run off with Kasavich and, therefore, beat her. With respect
to the latter motion, defendant sought to exclude a statement made by
him to Nilsen in April of 2004, in which he threatened to kill both her
and Kasavich.
¶5 The circuit court of Cook County denied in part and allowed in
part defendant’s motion to exclude evidence of defendant’s violence
against Nilsen. The court ruled that some evidence of domestic
violence was relevant to defendant’s motive for killing Kasavich and
also relevant to intent. The trial court, however, limited the evidence
that was admissible, finding that the admission of all of the evidence
would be more prejudicial than probative.
¶6 The trial court denied defendant’s motion to exclude certain
testimony from Nilsen based on the marital privilege. The trial court
framed the issue as:
“whether or not [the] marital privilege prohibits the testimony
of defendant’s wife against defendant in defendant’s trial for
a murder committed against a third party, Donald Kasavich,
as to defendant’s actions toward his wife, and as to
defendant’s contemporaneous threats to kill his wife and
Kasavich when defendant was not charged with committing
an offense against his wife.”
After discussing several Illinois cases as well as cases from other
jurisdictions, and noting the purpose underlying the marital privilege,
the circuit court concluded that our legislature could not have
intended to protect the type of spousal abuse alleged in this case or
the communications made during such abuse as privileged. The court
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further found that defendant’s conduct in April 2004 and his threat
was admissible to show defendant’s motive to kill Kasavich because
Nilsen allegedly turned to Kasavich for help in escaping from
defendant. The court also found that defendant did not intend the
threat to be confidential in that he expected Nilsen to convey it to
Kasavich to convince Kasavich to stay away from Nilsen and to
dissuade him from helping her escape from defendant. The court
reasoned that defendant relied upon the fear produced by such threats
rather than upon any confidential relationship of the marriage.
Accordingly, Nilsen was permitted to testify regarding what she told
a detective on July 20, 2004, specifically:
“In April 2004, defendant threatened to kill Nilsen. Defendant
tied her up, beat her, threw her in his pickup truck, had a gun,
drove her to Donald Kasavich’s trailer, pointed at the trailer
and said he’d kill Kasavich and her, and then cut off
Kasavich’s dick and stick it in her mouth. She and defendant
were both outside the trailer for a few minutes, then defendant
drove her back to their home. Defendant continued to beat her
to get her to confess.”
¶7 At trial, Kellee O’Nions testified that she discovered Kasavich’s
dead body on June 29, 2004. O’Nions stated she had lived with
Kasavich from time to time for several years. O’Nions admitted she
had been a crack cocaine addict for more than 20 years but stated she
no longer used it. O’Nions also stated that she and Kasavich had
taken drugs together and she was aware Kasavich often purchased
crack from defendant.
¶8 O’Nions testified that she accompanied Kasavich on June 25,
2004, to Richard Roethler’s home in Hammond. O’Nions had known
Roethler for approximately 20 years and introduced Kasavich to him
because Kasavich was looking for a car to buy and Roethler had a car
to sell. Kasavich agreed to buy a red car from Roethler in exchange
for a combination of money and cocaine.
¶9 On June 26, O’Nions left with Kasavich to go to Pennsylvania to
visit some of Kasavich’s family. They drove Kasavich’s van and left
the red car parked at his trailer. When they returned on June 28, the
red car was gone. The next morning O’Nions and Kasavich went to
Roethler’s house, where they learned Roethler had taken the car back.
O’Nions overheard Kasavich and Roethler arguing about the car and
the cocaine. Kasavich left, but O’Nions remained to talk to Roethler
about giving the car back to Kasavich. After Roethler refused,
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O’Nions returned to Kasavich’s trailer. O’Nions and Kasavich argued
and he asked her to leave, which she did. At the time she left,
Kasavich had no injuries, the trailer was intact, and the window was
not broken.
¶ 10 Roethler was later interviewed by Chicago police Detective Kevin
Eberle, who concluded Roethler was not a suspect in Kasavich’s
homicide. In addition, Roethler was excluded as a suspect based on
physical evidence taken from the victim and the crime scene.
¶ 11 Patricia Madigan testified she met defendant through a mutual
friend, Danny Barnas.1 She bought crack cocaine from defendant,
which she had used on a daily basis in 2004. However, in 2009, when
the trial took place, she testified she had been clean for three or four
years. Madigan did not know Kasavich.
¶ 12 Madigan testified that, on June 29, 2004, she called defendant to
purchase crack from him. They made arrangements to meet at the
intersection of 129th Street and Commercial Avenue in Chicago,
between 1:30 and 2 p.m. that day. Defendant failed to show up.
Madigan again called defendant and when she finally reached him, he
agreed to meet her at 4 p.m. at the same intersection. Madigan drove
Michael Lesko’s car to the designated location. When she saw
defendant, his arm was bandaged and bloody and his clothes had
blood on them. Defendant told Madigan he had been involved in a
police chase with the Hammond police department and cut himself on
glass from his truck.2 Defendant then asked Madigan if she had heard
anything about a murder at a trailer court. She responded she had not.
¶ 13 Madigan drove defendant to another drug delivery, then defendant
took over driving Lesko’s car, and they picked up his daughter. After
his daughter got into the car, defendant asked her if she had heard
anything about a murder in a trailer court. When she responded she
had not, defendant told her to “mind her own fuckin business.” The
trio then went to Burger King and back to defendant’s house to eat.
¶ 14 When they got back to defendant’s house, he packed an overnight
bag and he and Madigan went to Lesko’s house. At Lesko’s house,
defendant asked Madigan to wash his clothes and give him a haircut,
which she did. Defendant also bathed, after which Madigan
1
Barnas was deceased at the time of defendant’s trial.
2
Testimony was offered at trial from a Chicago police detective that
there was no external damage to defendant’s truck or any broken glass.
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rebandaged his arm. While waiting for defendant’s clothes to dry,
Madigan, defendant and Lesko used drugs.
¶ 15 Thereafter, Madigan and defendant returned to his house in
Lesko’s car. Defendant exited the car, walked down an alley and went
over a fence into his yard. When he returned approximately 5 to 10
minutes later, he threw items wrapped in a blanket over the fence.
According to Madigan, the items appeared to be rifles or guns.
Defendant put the guns in the trunk. Defendant then drove down
130th Street with a pistol on his lap, throwing bullets out the window.
Subsequently, defendant drove to a landfill by the Calumet River.
Defendant gave Madigan crack cocaine to smoke and told her not to
watch what he was doing. Defendant exited the car and Madigan
heard a splash. When defendant returned, he did not have the gun that
was previously on his lap.
¶ 16 The two went to the house of their mutual friend, Barnas. Once
they arrived at Barnas’ house, Madigan smoked crack in the basement
while defendant and Barnas spoke privately. She overheard defendant
ask Barnas’ permission to leave some things at his house. Defendant
then brought the blanket from the trunk into Barnas’ house. After
smoking more crack in Barnas’ basement, Madigan and defendant
returned to Lesko’s home. The two stayed the night and in the
morning, defendant left with Lesko’s car. Madigan called her mother
to pick her up and she then learned about Kasavich’s murder.
¶ 17 The next time Madigan saw defendant was at Barnas’ house
sometime in July. She heard defendant asked Barnas if he could
remove the rifles he had left there. At this time, the rifles were in a
golf bag. On July 28, Madigan spoke with a Chicago police detective
and recounted these events in a handwritten statement. She also
testified before a grand jury.
¶ 18 Michael Lesko testified that he too used crack cocaine in 2004
and knew both defendant and Madigan. In 2004, he owned a white
Oldsmobile and would lend it to people, including Madigan and
defendant. According to Lesko, between 6 and 8 p.m. on June 29, he
was sitting in his kitchen when Madigan and defendant walked in
unannounced. Defendant’s arm was bandaged with some type of cloth
and there was blood on his clothes. Defendant told Lesko he had a
couple too many beers, fell down, and injured his arm. Defendant
asked if he could use Lesko’s bathroom to clean up, which Lesko
found unusual since defendant had never made such a request before.
While defendant took a bath, Madigan washed his clothes. When
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defendant was finished with his bath, Madigan rebandaged
defendant’s arm and then cut his hair, which was also unusual to
Lesko. The three talked for a bit and then Lesko went to bed. The
next day defendant left in Lesko’s car.
¶ 19 Lesko testified that when he got his car back a day or two later, it
was very clean. Lesko testified that in July, the police showed up at
his house and asked for consent to search his vehicle. He gave the
police consent and they took his car.
¶ 20 Laura Nilsen testified she was the estranged wife of defendant.
The trial was the first time she had seen defendant since June 24,
2004. Nilsen stated she knew Kasavich and used to live with him, but
she denied having a sexual or romantic relationship with him. Nilsen
admitted that in 2003 to 2004, she smoked crack daily. When she
lived with Kasavich, they would take drugs together, which they often
purchased from defendant.
¶ 21 Nilsen testified that she and defendant began dating in November
2003 and were married in January 2004. After she moved in with
defendant in Hammond, he immediately became very abusive toward
her, beating her daily. Nilsen testified that defendant beat her with his
fists, kicked her while wearing work boots, hit her with a gun, tied her
up using duct tape or rope, and locked her in the bathroom and closet.
¶ 22 Nilsen described defendant’s house as having multiple deadbolt
locks on the doors, with keys required to open them from both sides.
A two-by-four board was also propped against the front door to block
it. There were security cameras at both the front and rear of the house,
as well as a tall privacy fence surrounding the yard. The windows
were tinted and the curtains were usually closed.
¶ 23 Nilsen testified that one night in April 2004, defendant became
irate and violent because she received a phone call, as he always did.
They fought, and while beating her, defendant accused her of
planning to leave with Kasavich. She denied these accusations, but
defendant tied her up and put her in his truck. Once in the truck, he
drove to Kasavich’s trailer, which was approximately five minutes
from defendant’s home, while continuing to beat her and accusing her
of planning to leave him. Nilsen testified that defendant had a gun
with him and when they arrived at Kasavich’s trailer, defendant told
her “he was going to cut [Kasavich’s] dick off and put it in [her]
mouth and then kill [them] both.” Defendant exited the truck and
knocked on Kasavich’s door, but his knocks went unanswered.
Defendant then returned to the truck and drove home.
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¶ 24 After this incident, defendant repeatedly accused Nilsen of
planning to leave with Kasavich and of cheating and having affairs
with others. He regularly tried to beat a confession out of her, often
putting his gun in her mouth while threatening her.
¶ 25 Nilsen further testified that on the evening of June 24, 2004, she
received a telephone call from her sister and defendant began to beat
her while she was on the phone. She hung up as quickly as possible.
Eventually defendant stopped beating her and left the house.
¶ 26 In the early hours of June 25, the Hammond police arrived at the
house. Because the pit bulls were barking, the police yelled at her to
put them away. As she was doing so, she noticed defendant had left
the house keys. She let herself out and went with the police to the
Hammond police station, where she was interviewed and
photographed. The photographs showed bruises, both new and old, on
her face, arms, legs, and back. After being interviewed and
photographed, she was taken to a hospital. Thereafter, she went to her
mother’s house for a day and then went into hiding from defendant.
Nilsen testified that she did not talk to Kasavich after this day and
eventually learned he had been murdered. After the incident on June
24, a warrant was issued for defendant’s arrest on charges of domestic
battery.
¶ 27 Other evidence was presented at trial. Specifically, a piece of
glass with blood on it was recovered from a shed outside of
Kasavich’s trailer. Forensic testing showed the blood was
defendant’s. Following defendant’s arrest, a consensual search was
made at Barnas’ home. Officers recovered a .40-caliber Glock Model
27 handgun, a rifle, and prescription bottles bearing Kasavich’s name.
¶ 28 The handgun was tested by the Illinois State Police Crime Lab
and was identified as the weapon used to kill Kasavich. Three fired
cartridges and one live cartridge from a .40-caliber gun were
recovered inside Kasavich’s trailer. Also, the medical examiner
testified that one .40-caliber bullet was recovered from Kasavich’s
brain. All of these items were confirmed to have come from the
recovered handgun.3
3
After the handgun was tested, it was returned to the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF). In September 2008,
unbeknownst to the Chicago police department, the ATF destroyed the gun
as a matter of routine since a federal firearms case against defendant was
complete. Two photographs of the handgun had been taken before its
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¶ 29 At trial, Nilsen was shown a photograph of the handgun. She
testified the gun in the photo was the gun defendant used to threaten
her and beat her. She did not know the make or model, but knew it
was the gun defendant kept with him “all the time.”
¶ 30 Detective Eberle of the Chicago police department testified that
the police began looking for defendant in connection with Kasavich’s
murder on July 3 after they received an anonymous tip.
¶ 31 Hammond police officer Matthew Porter testified that on July 22
he was aware there was a warrant for defendant’s arrest and was
surveilling defendant. At approximately 12:30 a.m., Porter observed
defendant pull out of his driveway with his lights off, pull into a gas
station across the street, and get out. Porter drove up behind
defendant. As Porter called in his location, defendant jumped back
into his vehicle and sped away. Porter activated his lights and siren
but defendant did not stop. After driving through several alleys and
streets, defendant drove through a fence, across a Little League field,
and then through a second fence. Defendant then drove through
Hammond into Chicago, with Porter in pursuit. Approximately three
miles into Chicago, Porter was ordered by his superiors to return to
Hammond and end his pursuit of defendant.
¶ 32 On July 26, Porter was still searching for defendant. At
approximately 1:30 a.m., as he was driving down an alley parallel to
defendant’s driveway, he observed a van pull out of defendant’s
driveway and then pull back in. The driver was a female and
defendant was in the passenger’s seat. Porter pulled behind the van,
activated his lights, and called for backup. Porter then exited his
vehicle, remaining next to it with his firearm drawn, and ordered the
occupants to stay in the vehicle.
¶ 33 Defendant opened the passenger door and began yelling, “What’s
the problem?” Porter again told defendant to remain in the vehicle.
However, defendant jumped out and ran toward the front of the van.
Defendant then leaned over the front hood of the van and pointed a
silver pistol in Porter’s direction. Defendant continued to move
around, keeping the female driver between himself and Porter. Porter
ordered defendant several times to get to the ground and drop his gun.
Instead, defendant began running down the alley beside his garage
toward his house.
destruction and were used at trial.
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¶ 34 Several officers arrived and set up a perimeter around defendant’s
house. SWAT officers also arrived. At this point, there were
approximately 30 police personnel present on the scene, including
Hammond police officers, special agents from the ATF, and ATF task
force agents, as well as other state and local authorities and
negotiators. Even after teargas was shot into every window of
defendant’s house, he refused to come out. The officers then made the
decision to go in and the rear door was rammed down.
¶ 35 Lieutenant Ralph Bogie of the Hammond police department
entered the house first. Bogie testified that when he entered,
immediately in front of him was a staircase to the basement. His
flashlight illuminated a person pointing a silver gun at him at the foot
of the stairs. Bogie yelled to the person between six to eight times to
drop the gun. Finally, Bogie heard a metal object hit the floor.
Defendant was subsequently arrested.
¶ 36 Based on all of the above evidence, the jury found defendant
guilty of first degree murder. Defendant was sentenced to 50 years’
imprisonment for the murder conviction and 40 years’ imprisonment
for the firearm enhancement, to run consecutively. These sentences
also were to run consecutively to a 10-year federal firearm sentence
defendant was already serving.
¶ 37 Defendant appealed, raising seven challenges. The appellate court
addressed only the first issue, whether Nilsen’s testimony should have
been excluded under the marital privilege. The appellate court found
that none of the exceptions in section 115-16 were applicable. 2012
IL App (1st) 100259, ¶ 26. Therefore, the appellate court concluded
the communications between Nilsen and defendant were protected by
the marital privilege because they were made during their marriage
and were made privately. Thus, the trial court should have applied the
privilege and excluded the evidence of abuse and defendant’s threats
against Nilsen and the victim. 2012 IL App (1st) 100259, ¶¶ 28-29.
The appellate court further held that the record clearly showed
Nilsen’s testimony contributed to defendant being found guilty and
therefore reversed and remanded for a new trial. Justice Murphy
dissented, reasoning that defendant did not intend for his conduct and
threat to remain confidential.
¶ 38 We granted the State’s petition for leave to appeal.
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¶ 39 ANALYSIS
¶ 40 This case requires us to determine the scope of Illinois’ marital
privilege, which is found in section 115-16 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115-16 (West 2010)). The primary
objective of statutory construction is to ascertain and give effect to the
legislature’s intent. Citizens Opposing Pollution v. ExxonMobil Coal
U.S.A., 2012 IL 111286, ¶ 23. The best indicator of the legislature’s
intent is the language of the statute itself, given its plain and ordinary
meaning. Id. It is axiomatic that when construing a statute, we
“cannot allow formality to trump substance where the result would be
contrary to the purposes for which the statute was enacted and lead to
consequences which the legislature could not have intended.”
Township of Jubilee v. State of Illinois, 2011 IL 111447, ¶ 35. A
cardinal rule of statutory construction is that a court can consider the
reason for the law, the problems sought to be remedied, the purposes
to be achieved, and the consequences of construing the statute one
way or another. People v. Gutman, 2011 IL 110338, ¶ 12; People v.
Garcia, 241 Ill. 2d 416, 421 (2011). In interpreting a statute, we
presume the legislature did not intend absurdity, inconvenience, or
injustice. Citizens Opposing Pollution v. ExxonMobil Coal U.S.A.,
2012 IL 111286, ¶ 23.
¶ 41 In Illinois, one spouse may testify for or against the other spouse
in criminal cases. However, section 115-16 of the Code provides that
neither “may testify as to any communication or admission made by
either of them to the other or as to any conversation between them
during marriage, except in cases in which either is charged with an
offense against the person or property of the other.” 725 ILCS 5/115-
16 (West 2010). The purpose of this privilege, derived from common
law, is to promote marital harmony and stability. People v. Foskey,
136 Ill. 2d 66, 94 (1990). See also Jaffee v. Redmond, 518 U.S. 1, 11
(1996); Trammel v. United States, 445 U.S. 40, 53 (1980). It is
intended to further marital harmony, mutual understanding and trust
by encouraging full disclosure, free communication, and confidential
communications between spouses. People v. Simpson, 39 Ill. App. 3d
661, 669 (1976), rev’d on other grounds, 68 Ill. 2d 276 (1977). See
also 81 Am. Jur. 2d Witnesses § 284, at 307 (2004) (“The purpose of
this doctrine is to promote and encourage the utmost confidence
between spouses and, thus, aid in the preservation of the marriage
status.”); McCormick on Evidence § 86, at 340 (John W. Strong ed.,
5th ed. 1999) (“The argument traditionally advanced in support of the
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marital communications privilege is that the privilege is needed to
encourage marital confidences, which confidences in turn promote
harmony between husband and wife.”); 8 John Henry Wigmore,
Evidence § 2332, at 642 (McNaughton rev. ed. 1961) (“[t]he policy
which should lie at the foundation of every rule of privileged
communications *** appears to be satisfied” in the case of spousal
communications: i.e., the communications originate in confidence,
the confidence is essential to the relation, the relation is a proper
subject of encouragement by the law, and the injury that would inure
to the relation by disclosure probably exceeds the benefit that would
result from ignoring the privilege in the “judicial investigation of
truth”).
¶ 42 We have rejected the argument that section 115-16 applies to
“any” conversation or communication and, instead, have held that the
statutory privilege, like the similar common law privilege, applies
only to communications which are intended to be confidential. People
v. Palumbo, 5 Ill. 2d 409, 415 (1955). See also Foskey, 136 Ill. 2d at
89; People v. Sanders, 99 Ill. 2d 262, 267 (1983). There is a
presumption that communications between spouses, privately made,
are intended to be confidential. However, where it appears from the
nature or circumstances under which the communication was made
that confidentiality was not intended, the communication is not
privileged. Palumbo, 5 Ill. 2d at 414. See also Wolfle v. United States,
291 U.S. 7, 14 (1934); Sanders, 99 Ill. 2d at 267.
¶ 43 Moreover, not all acts are regarded as communications. Implicit
in the term “communication” found in section 115-16 is the idea of
speech. People v. Derr, 316 Ill. App. 3d 272, 278 (2000). See also
People v. Krankel, 105 Ill. App. 3d 988, 991 (1982). Certain acts,
however, may be deemed a communication, such as a nod of the head
or wave of the hand. See People v. Murphy, 241 Ill. App. 3d 918, 924
(1992); Krankel, 105 Ill. App. 3d at 991. In order to fall within the
privilege, the nonverbal conduct must clearly be intended as a
substitute for, or in lieu of, an oral communication, i.e., it was
intended to convey a message. Simpson, 39 Ill. App. 3d at 670. See
Derr, 316 Ill. App. 3d at 278. See also Paul F. Rothstein & Susan W.
Crump, Federal Testimonial Privileges § 4:12 (2d ed. 2012) (“the
communication should include at least a gesture that is
communicative or is intended by one spouse to convey a message to
the other”). The mere description by one spouse of general,
noncommunicative conduct is not protected by the marital privilege.
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Derr, 316 Ill. App. 3d at 278; Krankel, 105 Ill. App. 3d at 991;
Simpson, 39 Ill. App. 3d at 670.
¶ 44 Thus, two elements must be met before a communication between
spouses falls within the privilege. First, the communication must be
an utterance or other expression intended to convey a message.
Second, the message must be intended by the communicating spouse
to be confidential in that it was conveyed in reliance on the
confidence of the marital relationship.
¶ 45 The appellate court below, after quoting section 115-16, found
that none of the exceptions in the statute were applicable. The
appellate court stated, “[a]cts as well as statements are regarded as
communications for the purposes of marital privilege.” 2012 IL App
(1st) 100259, ¶ 24. The appellate court then concluded that the trial
court should have “excluded the evidence of abuse” against Nilsen
under the marital privilege. We disagree.
¶ 46 First, it should be noted that defendant’s motion to exclude
confidential communications sought only to bar the statement he
made in April 2004 where he threatened to kill his wife and Kasavich.
Defendant also moved, in a separate motion, to exclude his general
pattern of violence and abuse toward his wife, the events that
occurred in April 2004, and evidence he was jealous that his wife was
going to run off with Kasavich and therefore beat her. That second
motion, however, was not based on the marital privilege and the
appellate court did not address that motion, ruling only that the trial
court erred in admitting evidence under the marital privilege.
¶ 47 Further, we find that the events that occurred in April 2004,
including defendant’s conduct at that time, would not fall within the
marital privilege. First, defendant’s acts were not nonverbal conduct
intended to convey a message. Second, it is commonly recognized
that “[a] spouse’s testimony as to physical acts of cruelty or abuse by
the other spouse is admissible on the ground that no confidential
communication is involved, or that the information was not gained as
a result of the marital relation.” 81 Am. Jur. 2d Witnesses §§ 287, 313
(2004). See also 98 C.J.S. Witnesses § 305 (2002). See, e.g., United
States v. Koehler, 790 F.2d 1256 (5th Cir. 1986); Rich v. Rich, 887
So. 2d 289 (Ala. Civ. App. 2004); Morgan v. United States, 363 A.2d
999 (D.C. 1976); State v. Parent, 02-835 (La. App. 5 Cir. 12/30/02);
836 So. 2d 494; Lenkiewicz v. Kastner, 227 N.W. 689 (Mich. 1929);
State v. Nettleton, 760 P.2d 733, 737 (Mont. 1988); Yowell v.
Vaughn, 85 Mo. App. 206 (1900); Millspaugh v. Potter, 71 N.Y.S.
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134 (N.Y. App. Div. 1901); State v. Greaves, 971 N.E.2d 987 (Ohio
Ct. App. 2012); State v. Govan, 465 S.E.2d 574 (S.C. Ct. App. 1995);
Adams v. State, 563 S.W.2d 804 (Tenn. Crim. App. 1978); Sterling
v. State, 814 S.W.2d 261 (Tex. App. 1991); State v. Americk, 256
P.2d 278 (Wash. 1953); State v. Richards, 391 S.E. 354 (W. Va.
1990).
¶ 48 We find the above authorities instructive and persuasive.
Accordingly, we hold that testimony regarding defendant’s conduct
in April 2004, i.e., beating her, tying her up, tossing her in his truck,
and driving to Kasavich’s house, need not have been barred by the
marital privilege.
¶ 49 We now consider whether defendant’s threat to kill Nilsen and
Kasavich must be barred by that privilege. The appellate court
concluded that defendant’s threat was a private communication
between defendant and Nilsen, and that no exception to section 115-
16 applied. Thus, the appellate court held that the trial court should
have barred defendant’s threat under the marital privilege. We
disagree and conclude that defendant’s threat was not barred by the
privilege because it was not a confidential communication.
¶ 50 No court in Illinois has yet defined what “confidential”
encompasses. However, other jurisdictions have and not every
conversation between husband and wife made in private is deemed
confidential. The privilege “covers only those private exchanges
which ‘would not have been made but for the absolute confidence in,
and induced by, the marital relationship’ ” and “ ‘prompted by the
affection, confidence and loyalty engendered by such relationship.’ ”
People v. D’Amato, 430 N.Y.S.2d 521, 522-23 (N.Y. Sup. Ct. 1980).
See also Nettleton, 760 P.2d at 738; 81 Am. Jur. 2d Witnesses § 297
(2004); Paul F. Rothstein & Susan W. Crump, Federal Testimonial
Privileges § 4:12 (2d ed. 2012); George L. Blum, “Communications”
Within Testimonial Privilege of Confidential Communications
Between Husband and Wife as Including Knowledge Derived from
Observation by One Spouse of Acts of Other Spouse, 23 A.L.R. 6th 1
(2007). As another court has stated, “ ‘[o]nly those communications
passing from one marriage partner to the other because of the
confidence resulting from their intimate marriage relationship receive
such protection.’ ” Rubalcada v. State, 731 N.E.2d 1015, 1022 (Ind.
2000) (quoting Rode v. State, 524 N.E.2d 797, 799 (Ind. Ct. App.
1988)). Conversely, “ ‘if what is said or done by either has no relation
to their mutual trust and confidence as husband and wife, then the
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reason for secrecy ceases.’ [Citation.]” Rubalcada, 731 N.E.2d at
1022 (defendant’s threats to kill wife and whatever she loved most if
she disclosed facts about murder he committed not barred by spousal
privilege because “[s]uch communications do not enhance the mutual
trust and confidence of the marital relationship that the privilege is
intended to protect”). See also Beyerline v. State, 45 N.E. 772 (Ind.
1897) (not every conversation between husband and wife, nor every
word or act said or done protected under “seal of secrecy”; only those
communications passed from one to another by virtue of the
confidence resulting from their intimate relationship are protected; if
what is said or done has no relation to mutual trust and confidence as
husband and wife, then the reason for secrecy ceases); State v.
Edwards, 260 P.3d 396 (Mont. 2011) (a spouse does not rely on the
confidence of the marital relationship when the purpose of the
communication is to “terrify and intimidate” the other spouse; wife’s
testimony that defendant “pulled a shotgun and put it in [her] face and
told [her] if [she] ever went to the cops, or ever told anyone, that he
would kill [her], kill [her] family, and burn [her] grandmother’s house
down” admissible in prosecution of defendant for murder because
communication not made in reliance on confidences of marital
relationship); State v. Applegate, 668 S.W.2d 624, 635 (Mo. Ct. App.
1984) (husband’s threats to do violence to former wife not
confidential communications within marital privilege statute); People
v. Mills, 804 N.E.2d 392, 396 (N.Y. 2003) (defendant’s admission to
killing in past and threat to kill his wife admissible in trial for past
murder because “[c]ommunications or threats made during the course
of physical abuse are not entitled to be cloaked in the privilege
because the maker of the statement is not ‘relying upon any
confidential relationship to preserve the secrecy of his acts and
words’ ”); People v. McCormack, 104 N.Y.S.2d 139, 141 (N.Y. App.
Div. 1951) (testimony that, while brandishing bayonet, husband
threatened wife with “I am going to kill. I am going to kill everybody.
I’m going to kill any *** person I see” admissible in prosecution for
murder of man in street shortly thereafter where method and nature
of communications strongly militated against view that confidential;
testimony of spouse as to words uttered or acts committed while in
course of a personal assault or injury by other not deemed within
spousal privilege especially where defendant knew wife might reveal
his utterances and actions if she had him arrested and prosecuted for
his attack on her), aff’d, 103 N.E.2d 895 (N.Y. 1952); Commonwealth
v. Spetzer, 813 A.2d 707, 720 (Pa. 2002) (defendant’s statements to
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wife admitting he raped her minor daughter, details of plans to abduct
the daughter and her sister and to rape them, and intimidation of wife
and daughter to recant their accusations admissible against defendant
in trial for rape of daughter because communications were not
confidential since not “sensitive, marital harmony-inspiring
communications contemplated by” spousal privilege).
¶ 51 Whether a particular communication is privileged as having been
made in reliance upon the marital confidence depends on the nature
and form of the communication and the circumstances immediately
surrounding its making. Such a determination is a preliminary
question of fact to be decided by the trial court. D’Amato, 430
N.Y.S.2d at 522-23.
¶ 52 Here, defendant’s threat to kill Nilsen and Kasavich was certainly
not made in reliance on the confidences of his marriage. It is evident
that defendant intended Nilsen to reveal the threat to Kasavich. Also,
it is the type of communication that Nilsen might have revealed to
one of her family members, or even the police. See, e.g., Newell v.
State, 49 So. 3d 66 (Miss. 2010) (defendant’s message left on wife’s
cell phone in which he threatened to shoot her and her alleged lover
not confidential for purpose of spousal privilege since wife would
have communicated to lover or police). It is also evident, from the
circumstances surrounding defendant’s threat, that it was not
motivated by his reliance on the intimate, special trust, and affection
of his marital relationship. The threat had no correlation to the mutual
trust between defendant and Nilsen as husband and wife.
Accordingly, we conclude that defendant’s threat made in April 2004
to kill Nilsen and Kasavich was not confidential and, therefore, was
not protected by the marital privilege.
¶ 53 For the foregoing reasons, we reverse the judgment of the
appellate court and remand this cause to that court so it may address
the other issues raised by defendant which were not previously
considered.
¶ 54 Reversed and remanded.
¶ 55 JUSTICE THEIS, specially concurring:
¶ 56 The sole issue before this court is whether the marital
communication privilege, as codified in section 115-16 of the Code
of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-16 (West
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2010)), applies to an April 2004 communication between defendant
and his wife, Laura Nilsen, in which defendant threatened to kill
Nilsen and the victim, Donald Kasavich. I join the majority opinion
in holding that this threat, made two months before the victim was
found dead, was not barred by the marital communication privilege
because I agree that it did not constitute confidential communication.
¶ 57 My primary disagreement with the majority opinion is its analysis
of what constitutes confidential marital communication. I am troubled
by the majority’s reliance upon case law from foreign jurisdictions to
carve out a new exception to Illinois’ marital privilege which is not
found in our own statutory language and requires our trial courts to
consider the health or status of a marital relationship at the time a
communication occurred in order to determine whether it entails a
confidential communication.
¶ 58 As in all cases of statutory interpretation, this court’s primary
objective should be to ascertain and give effect to the legislature’s
intent, keeping in mind that the best and most reliable indicator of
that intent is the statutory language itself, given its plain and ordinary
meaning. People v. Gutman, 2011 IL 110338, ¶ 12. In construing a
statute in this way, we may not read into the statute exceptions,
limitations, or conditions for which the legislature did not provide.
People v. Dominguez, 2012 IL 111336, ¶ 16. Generally, a trial court’s
ruling on evidentiary matters will not be reversed absent a clear abuse
of discretion. People v. Hall, 195 Ill. 2d 1, 20 (2000). Where, as in
this case, the question concerns purely statutory interpretation, a
question of law, we apply de novo review. Id. at 21.
¶ 59 Illinois’ marital communication privilege, contained in section
115-16 of the Code, provides, in relevant part:
“Witness disqualification. ***
In criminal cases, husband and wife may testify for or
against each other. Neither, however, may testify as to any
communication or admission made by either of them to the
other or as to any conversation between them during
marriage, except in cases in which either is charged with an
offense against the person or property of the other, in case of
spouse abandonment, when the interests of their child or
children or of any child or children in either spouse’s care,
custody, or control are directly involved, when either is
charged with or under investigation for [listing certain sex
offenses] and the victim is a minor under 18 years of age in
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either spouse’s care, custody, or control at the time of the
offense, or as to matters in which either has acted as agent of
the other.” 725 ILCS 5/115-16 (West 2010).
¶ 60 Consequently, under the plain language of the statute, the marital
privilege in Illinois prohibits testimony as to any communication or
admission by either spouse to the other or as to any conversation
between them during the marriage unless one of the five specified
exceptions apply. None of the exceptions apply to the communication
of the threat made by defendant to Nilsen.
¶ 61 This court has long held, however, that the statutory marital
privilege applies only when the communication from one spouse to
another was intended to be of a confidential nature. See, e.g., People
v. Palumbo, 5 Ill. 2d 409, 415 (1955). While the majority recognizes
this point, it holds that “[n]o court in Illinois has yet defined what
‘confidential’ encompasses.” Supra ¶ 50. I disagree. This court’s own
precedent has instructed on what confidential marital communication
entails and should control our outcome today.
¶ 62 Our decision in Palumbo is the starting point for our
interpretation of the statute relating to the admissibility of
interspousal communication as applying solely to confidential
communication. In Palumbo, we recognized that there is no specific
language in the statute that the marital communication must be
confidential in order for the privilege to apply. Palumbo, 5 Ill. 2d at
415. We looked at the historical background of the statute and noted
that under an earlier provision, the statute provided that a husband or
wife may not testify to any admissions or conversations of the other,
whether made by him to her or her to him, or by either to third
persons. Id. After the statute was amended, the reference to third
persons was omitted. Id. We interpreted the legislature’s intent in
removing the statutory language referencing third persons as
conforming to the common law privilege which had only covered
confidential communication. Id. Following the examination of the
statutory framework in Palumbo, we concluded that the conversation
at issue was ineligible for protection under our marital privilege
because it was not confidential as it took place in the presence of a
third person who, according to the wife, was trying to purchase
narcotics from the defendant who was her husband. Id. at 411, 415.
¶ 63 Thereafter, in Sanders, relying upon the framework this court
established in Palumbo, we held that while there is a presumption that
interspousal communications are intended to be confidential if, under
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the circumstances in which the communication took place, it appears
that confidentiality was not intended, the communication is not to be
regarded as privileged. People v. Sanders, 99 Ill. 2d 262, 267 (1983).
We reiterated that communications made in the presence of third
persons are not regarded as privileged because they are not made in
confidence. Id. at 267. We therefore found the conversation ineligible
for protection under the statutory marital privilege because the
presence of the couple’s 13-year-old son destroyed the confidential
nature of the spousal communication during which the husband told
his wife that he robbed the victim. Id. at 266, 269.
¶ 64 In the instant case, Nilsen testified the threat that defendant would
kill her and the victim was made at the victim’s trailer, and the only
reason defendant did not communicate directly with him that night
was that his repeated knocks on the victim’s trailer door went
unanswered. As the majority holds, it is evident from the
circumstances that defendant made the threat with the intention of a
third party, the victim, being made aware of it, presumably to
discourage any further contact between Nilsen and Kasavich. Supra
¶ 52. Consequently, wholly consistent with our holdings in Palumbo
and Sanders, the communication is not privileged because based upon
the circumstances in which the threat was made by defendant,
confidentiality was obviously not intended. Nothing more needs to be
said in answering the sole issue before us.
¶ 65 The majority’s error in holding that no court in Illinois has
instructed on what confidential marital communication encompasses
results in its analysis becoming unhinged from our statute and
creating a new exception to our marital privilege. Relying exclusively
on case law from outside this state, the majority today holds that
“[t]he privilege ‘covers only those private exchanges which “would
not have been made but for the absolute confidence in, and induced
by, the marital relationship” ’ and ‘ “prompted by the affection,
confidence and loyalty engendered by such relationship.” ’ ” Supra
¶ 50 (quoting People v. D’Amato, 430 N.Y.S.2d 521, 522-23 (N.Y.
Sup. Ct. 1980)).
¶ 66 I recognize the majority’s apparent desire in not wanting to extend
the evidentiary privilege to marital relationships that at the time of a
communication have seemingly broken down. Basing a holding on a
desire for a particular outcome, however, would do considerable
violence to our rules of statutory construction and decisionmaking
principles. The majority opinion ignores the most basic tenet of
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statutory construction that we do not enlarge the meaning of a statute
by reading into it language not contained therein. People v. Woodard,
175 Ill. 2d 435, 443 (1997). Our legislature has provided five specific
exceptions to the application of the marital privilege in Illinois. It is
not the role of this court to add a sixth.
¶ 67 Today’s holding also leaves trial courts in Illinois in the untenable
position of having to assess, without any real objective criteria from
this court, the health and status of a marriage at the time a
communication occurred, in order to determine, as the majority
articulates, whether the communication was “motivated by [the
spouse’s] reliance on the intimate, special trust, and affection of [the]
marital relationship.” Supra ¶ 52. To complicate matters further for
our trial courts, the majority in discussing what constitutes
confidential communication provides, without any synthesis, no fewer
than seven different parentheticals from various states, one going
back to the nineteenth century, as to the criteria considered by those
courts when making the determination. See supra ¶ 50. Consequently,
it is entirely unclear what standard our trial courts should now apply
when making a judicial determination of marital harmony as required
by today’s opinion.
¶ 68 My secondary disagreement with the majority opinion is its
analysis of the admission of evidence regarding defendant’s conduct
in April 2004, and whether it is subject to the marital privilege. The
majority opinion again unnecessarily relies exclusively on authority
from outside this state (See supra ¶¶ 47-48)) when the question
should be answered based upon the language of our own statute.
Simply put, the marital privilege would not apply to defendant’s acts
(i.e., that he beat Nilsen, tied her up, forcibly placed her in his truck,
and drove to Kasavich’s house in April 2004) because under the plain
language of our statute the privilege applies only to communications
and admissions made by either spouse to the other, and to
conversations between spouses during marriage, and would never
include defendant’s conduct here. See People v. Hall, 194 Ill. 2d 305,
335 (2000) (wife’s testimony in describing her own conduct in
purchasing guns for the defendant and sending them to him was not
subject to the marital privilege because the privilege does not apply
to such conduct).
¶ 69 Additionally, as the majority recognizes, defendant’s motion to
exclude confidential communication under the marital privilege
sought only to bar the statement he made where he threatened to kill
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Nilsen and Kasavich. See supra ¶ 46. The majority acknowledges that
defendant moved in a separate motion in limine to exclude, in
pertinent part, the conduct that occurred in April 2004. Supra ¶ 46.
This separate motion did not seek exclusion of this evidence based on
the marital privilege but, rather, because such evidence constituted
improper evidence of other crimes, wrongs, or acts (see People v.
Kliner, 185 Ill. 2d 81, 146 (1998); see also Ill. R. Evid. 404(b) (eff.
Jan. 1, 2011)), which is one of the issues that this court has now
remanded to the appellate court to address (see supra ¶ 57).
¶ 70 I find no need to analyze whether it would be proper to exclude
the evidence of defendant’s conduct under the marital privilege when
that was not the basis put forth by defendant in his motion in limine
for barring it. Defendant specifically challenged the admission of this
evidence of other crimes, wrongs, or acts on appeal and it would be
best left, in my estimation, to the appellate court to consider the issue
as directed.
¶ 71 Accordingly, I cannot join the reasoning of the majority opinion.
¶ 72 JUSTICE KARMEIER joins in this special concurrence.
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