                               Illinois Official Reports

                                       Supreme Court



                                People v. Denson, 2014 IL 116231




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



Docket No.                116231



Filed                     November 20, 2014



Held                       An in limine issue is preserved for review by bringing it to the trial
(Note: This syllabus court’s attention one additional time—by contemporaneous objection
constitutes no part of the in a civil case or by posttrial motion in a criminal case; and a murder
opinion of the court but defendant who made no contemporaneous trial objection after
has been prepared by the unsuccessfully responding to the State’s motion in limine to admit
Reporter of Decisions statements preserved the issue for review when he subsequently made
for the convenience of a motion for a new trial—forfeiture theory rejected.
the reader.)




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




Judgment                  Affirmed.
     Counsel on               Michael J. Pelletier, Thomas A. Lilien and Christopher McCoy, of the
     Appeal                   Office of the State Appellate Defender, of Elgin, for appellant.

                              Lisa Madigan, Attorney General, of Springfield, and Joseph H.
                              McMahon, State’s Attorney, of St. Charles (Carolyn E. Shapiro,
                              Solicitor General, and Michael M. Glick and Leah M. Bendik,
                              Assistant Attorneys General, of Chicago, of counsel), for the People.



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

                                                OPINION

¶1         Following a jury trial in the circuit court of Kane County, defendant, Darren Denson, was
       convicted of first degree murder (720 ILCS 5/9-1(a)(2) (West 2002)), armed robbery (720
       ILCS 5/18-2(a)(1) (West 2002)), and home invasion (720 ILCS 5/12-11(a)(1) (West 2002)).
       The trial court sentenced him to natural life in prison for the first degree murder, consecutive
       to two concurrent terms of 30 years in prison for the other two counts. Defendant appealed,
       and the appellate court affirmed. 2013 IL App (2d) 110652. We granted defendant’s petition
       for leave to appeal (Ill. S. Ct. R. 315(a) (eff. July 1, 2013)) and for the reasons that follow,
       now affirm the judgment of the appellate court.

¶2                                            BACKGROUND
¶3         Defendant was charged by indictment with the February 2003 murder of Kyle Juggins.
       Prior to trial, the State filed a six-page motion in limine to admit certain hearsay statements
       made by defendant’s coconspirators. Defendant filed a five-page written response objecting
       to the admission of those statements. The trial court then held a hearing on the State’s
       motion, and both sides were given the opportunity to argue before the court. The trial court
       granted the State’s motion, and the matter eventually proceeded to trial. The jury found
       defendant guilty on all counts, and defendant filed a posttrial motion alleging several errors,
       including the trial court’s pretrial granting of the State’s motion in limine. The trial court
       denied the motion and imposed sentence. Defendant filed a timely appeal.
¶4         On appeal, defendant argued that the trial court erred in (1) admitting the coconspirator
       statements that were the subject of the State’s motion in limine, and (2) allowing the State to
       elicit a prior consistent statement from one of its witnesses. With respect to defendant’s first
       argument, the appellate court held that defendant forfeited review of this issue both because
       he (1) failed to file a motion in limine of his own to exclude those statements; and (2) failed
       to raise a contemporaneous objection when the State introduced those statements at trial.
       2013 IL App (2d) 110652, ¶¶ 7-10. The appellate court then held that, even if defendant had
       not forfeited the issue, he still was not entitled to relief because, with one harmless exception,


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       all of the contested statements, including the prior consistent statement, were properly
       admitted. Id. ¶¶ 11-29. Accordingly, the appellate court affirmed defendant’s conviction and
       sentence. Id. ¶¶ 32-33.
¶5         Defendant now appeals to this court, arguing that the appellate court erred both in (1)
       holding that defendant forfeited review of the admissibility of the coconspirator statements,
       and (2) holding that two of those statements, as well as the contested prior consistent
       statement, were properly admitted.

¶6                                             DISCUSSION
¶7                                               Forfeiture
¶8         We begin with whether defendant forfeited review of the trial court’s decision to admit
       the statements that were the subject of the State’s motion in limine. As noted above, the
       appellate court’s forfeiture determination was based on two independent considerations: (1)
       defendant’s failure to file a motion in limine of his own to exclude the statements at issue,
       and (2) defendant’s failure to raise a contemporaneous objection when the statements at issue
       were admitted at trial. Whether these failures resulted in a forfeiture is a question of law, and
       our review therefore is de novo. People v. Lara, 2012 IL 112370, ¶ 16.

¶9                                            Motion in Limine
¶ 10       With respect to the appellate court’s first consideration, the State makes no attempt in this
       court to defend either the appellate court’s analysis or its conclusion. Instead, the State
       simply concedes that “the appellate court’s first reason—that defendant filed a response to a
       motion in limine rather than his own motion—does not justify a finding of forfeiture.” In
       other words, on this point, the parties agree fully that the appellate court erred. That said, the
       State’s concession on this point does not end the matter, as this court is not bound by a
       party’s concession. See People v. Horrell, 235 Ill. 2d 235, 241 (2009). Rather, in a case such
       as this, involving a pure question of law, we are wise to examine for ourselves whether the
       concession is well-founded, which in this case it decidedly is.
¶ 11       In criminal cases, this court has held consistently that a defendant preserves an issue for
       review by (1) raising it in either a motion in limine or a contemporaneous trial objection, and
       (2) including it in the posttrial motion. See People v. Cox, 195 Ill. 2d 378, 382 (2001); People
       v. Hudson, 157 Ill. 2d 401, 434-35 (1993); People v. Boclair, 129 Ill. 2d 458, 476 (1989).
       Here, the State filed a six-page motion in limine to admit certain statements in its case against
       defendant. In response to the State’s motion, defendant filed a five-page written objection
       arguing why the statements at issue were inadmissible. The trial court then held a hearing on
       the State’s motion, and defense counsel once again had the opportunity to argue against the
       admissibility of the contested statements. At the conclusion of the hearing, the trial court
       allowed the State’s motion. Later, following his conviction, defendant filed a motion for a
       new trial arguing, inter alia, that the trial court erred in granting the State’s motion in limine.
       In short, defendant did everything that cases such as Cox, Hudson, and Boclair require, and
       we therefore hold that he properly preserved his objection to the admissibility of the
       contested statements.
¶ 12       The appellate court below reached the opposite conclusion. And one of its reasons for
       reaching that conclusion is that, rather than objecting to the admissibility of the contested

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       statements in a motion in limine of his own, defendant did so in response to the State’s
       motion in limine to admit those statements. According to the appellate court, this was
       insufficient because, under this court’s settled precedent, it is a motion in limine that
       preserves an issue for review, not a response to a motion in limine. On this point, the
       appellate court was quite critical of the decision in People v. Maldonado, 398 Ill. App. 3d
       401 (2010), which held that the defendant in that case preserved the issue for review “when
       he raised it in both his reply to the State’s motion in limine and in his posttrial motion.” Id. at
       415. According to the appellate court:
                “In a single paragraph, Maldonado morphs the law from ‘the supreme court holding
                that raising an issue in a motion in limine is sufficient to preserve an issue so long as
                it is also raised in the posttrial motion’ to ‘because defendant did object to the
                introduction of this evidence both in his reply to the State’s motion in limine and in
                his posttrial motion, we conclude that this issue was sufficiently preserved.’
                [Maldonado, 398 Ill. App. 3d at 416.] This non sequitur is a patent distortion of a
                supreme court holding, made with no analysis or purported justification for the
                expansion of the supreme court’s holding. We are unaware of any case prior to
                Maldonado that holds that raising an issue in a reply to the State’s motion in limine,
                rather than in the defendant’s motion, is sufficient for preservation of the issue. To the
                extent that Maldonado so holds, we disavow that holding.” 2013 IL App (2d) 110652,
                ¶ 8.
       In other words, according to the appellate court, the dispositive factor in determining whether
       an issue is preserved for review is not whether that issue was the subject of in limine
       litigation, but rather which party filed the pleading that precipitated the in limine litigation.
¶ 13        With due respect to the appellate court, we are convinced that the above analysis elevates
       form over substance to an unwarranted and unnecessary degree. Far from being a “non
       sequitur,” Maldonado’s holding is simply a commonsense application of a settled principle
       to a specific set of facts. This court’s forfeiture rules exist to encourage defendants to raise
       issues in the trial court, thereby ensuring both that the trial court has an opportunity to correct
       any errors prior to appeal and that the defendant does not obtain a reversal through his or her
       own inaction. See, e.g., People v. Herron, 215 Ill. 2d 167, 175 (2005); People v. Reid, 136
       Ill. 2d 27, 38 (1990). In light of this, the critical consideration in a case such as this is not
       which party initiated the in limine litigation, but rather whether the issue being raised was
       litigated in limine. This is because, irrespective of which party initiates the in limine
       proceeding, as long as it occurs, the interests served are exactly the same. Here, for example,
       the trial court was asked before trial to rule upon the admissibility of certain statements. The
       State fully briefed the arguments for their admissibility, and defendant fully briefed the
       arguments for their inadmissibility. A hearing then was held at which both sides again
       presented their best arguments to the trial court, and based upon all it had read and heard, the
       trial court ruled. Under these circumstances, requiring defendant to recaption and refile his
       response to the State’s motion as a motion in limine of his own would accomplish precisely
       nothing, other than to clutter the record with duplicative pleadings. The arguments raised in
       defendant’s motion would be exactly the same as those raised in his response to the State’s
       motion, and the arguments advanced at the hearing on defendant’s motion would be exactly
       the same as those advanced at the hearing on the State’s motion. The purpose of Cox,
       Hudson, and Boclair is not to ensure that pretrial evidentiary issues are litigated twice.

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       Rather, the point of these cases is to ensure that, whether by contemporaneous trial objection
       or in limine litigation, the trial court is given a full and fair opportunity to consider and rule
       upon the issue. That is exactly what happened here, and as defendant also raised the issue in
       a timely filed posttrial motion, nothing more than that was required.

¶ 14                                    Contemporaneous Objection
¶ 15        The second basis for the appellate court’s forfeiture finding is the fact that defendant did
       not object when the statements at issue in the State’s motion in limine were admitted into
       evidence at trial. According to the appellate court, “the denial of a motion in limine does not
       in itself preserve an objection to disputed evidence that is later introduced at trial; a
       contemporaneous objection to the evidence at the time that it is offered is required to
       preserve the issue for review.” 2013 IL App (2d) 110652, ¶ 9 (citing Simmons v. Garces, 198
       Ill. 2d 541, 569 (2002)). This time, the State agrees fully with the appellate court’s analysis
       and asks us to affirm the forfeiture finding on this basis.
¶ 16        Before addressing the merits of this portion of the appellate court’s forfeiture analysis, we
       are compelled to make an observation concerning the State’s conduct in the trial court
       relative to the position it now takes in this court. At the hearing on the State’s motion in
       limine, the trial court observed that, in an earlier trial involving one of defendant’s
       codefendants, the State chose to address the admissibility of the coconspirator statements
       during trial rather than in a motion in limine. In response to that observation, the State
       explained:
               “That is true, Judge. And that is one thing I wanted to avoid in this trial, especially
               that trial was a bench trial. Not that it makes a difference, but that trial was a bench
               trial. It was one of those things, you could stop the flow of the trial a little bit easier to
               make that—for a judge to make that finding. With a jury trial here, I wanted to make
               sure this was all out there beforehand; and that when we tried to get in one [of] these
               statements, there wasn’t an objection and we had to send the jury out for an hour
               while we argued this, et cetera. I wanted to bring to the court’s attention beforehand.”
               (Emphasis added.)
       In other words, the State filed its motion in limine not only expecting that defendant would
       not object at trial if that motion were allowed, but precisely so that defendant would not
       object at trial if that motion were allowed. This was for the State’s benefit, and the State
       communicated this explicitly to both the trial court and defense counsel. Given this, we have
       some difficulty now entertaining the State’s argument that defendant forfeited review of the
       contested statements by failing to make a contemporaneous trial objection, when insulating
       those statements from a contemporaneous trial objection was the State’s express objective
       and implicit request.
¶ 17        As the State well knows, a party may not request to proceed in one manner and then later
       contend on appeal that the requested course of action was in error. See, e.g., People v. Lucas,
       231 Ill. 2d 169, 174 (2008). And while a prevailing party may defend its judgment on any
       basis appearing in the record, it may not advance a theory or argument on appeal that is
       inconsistent with the position taken below. See, e.g., People v. Henderson, 2013 IL 114040,
       ¶ 23; People v. Franklin, 115 Ill. 2d 328, 336 (1987). Here, the State is doing both of these
       things, and consequently it is entirely within our prerogative to reject the State’s forfeiture


                                                     -5-
       argument outright. See Henderson, 2013 IL 114040, ¶ 24. That said, in the interests of
       resolving the issue at hand, and in large measure because our resolution of the issue results in
       no prejudice to defendant, we will proceed to consider the merits of the remaining portion of
       the appellate court’s forfeiture analysis. In doing so, we in no way condone the State’s
       maneuvering in this case, and we strongly discourage the State from proceeding this way in
       the future.
¶ 18       As to the merits, we reject the appellate court’s conclusion that defendant forfeited
       review of the contested statements by failing to make a contemporaneous trial objection. In
       criminal cases, this court has held consistently that, to preserve an issue for review, a
       defendant must raise it in either a motion in limine or an objection at trial, and in a posttrial
       motion. Cox, 195 Ill. 2d at 382; Hudson, 157 Ill. 2d at 434-35; Boclair, 129 Ill. 2d at 476.
       That is exactly what defendant did here, and this court has never required anything more.
       Defendant preserved the issue.
¶ 19       To be sure, the appellate court correctly noted that, in other cases, this court has held that
       the denial of a motion in limine does not, by itself, preserve an objection to the admission of
       disputed evidence and that a contemporaneous trial objection also is required to preserve the
       issue for review. See, e.g., Simmons, 198 Ill. 2d at 569; Illinois State Toll Highway Authority
       v. Heritage Standard Bank & Trust Co., 163 Ill. 2d 498, 502 (1994). Where the appellate
       court went astray, however, is in failing to recognize that we have only ever held this in civil
       cases and that the forfeiture rules for civil and criminal cases are different. Indeed, in
       Heritage Standard, this court prefaced its recitation of the above rule with the phrase, “[i]n
       civil cases such as this.” Heritage Standard, 163 Ill. 2d at 502. The reason this phrase was
       necessary is because it is only in civil cases that a contemporaneous trial objection is
       required; this court has never required it in the criminal context.
¶ 20       The State, in turn, attempts to argue that “[u]ncertainty exists in Illinois criminal case law
       over whether a contemporaneous trial objection, in addition to inclusion in both the posttrial
       motion and an in limine filing, is required to preserve an issue for appellate review.”
       According to the State, the source of this “uncertainty” is this court’s perpetual inconsistency
       on this question. On the one hand, the State argues, there are decisions such as People v.
       Enoch, 122 Ill. 2d 176, 186 (1988), People v. Gilliam, 172 Ill. 2d 484, 510 (1996), and In re
       M.W., 232 Ill. 2d 408, 430 (2009), all of which state that a contemporaneous trial objection is
       required to preserve an issue for review. On the other hand, there are decisions such as Cox,
       Hudson, and Boclair, all of which say that a contemporaneous trial objection is not required.
¶ 21       Now, as presented by the State, this certainly looks bad. And were this the state of the
       law, this court certainly would have some explaining and some reconciling to do.
       Fortunately, this is not the state of the law, not by a long shot. In fact, there is absolutely no
       inconsistency in the state of this court’s criminal forfeiture jurisprudence because there is an
       important distinction between the two lines of cases cited by the State, a point the State
       neglected to mention in its brief though it readily conceded it at oral argument. The
       distinction is this: Cox, Hudson, and Boclair involve issues that were or could have been
       raised in a motion in limine; Enoch, Gilliam, and M.W. do not. Rather, Enoch, Gilliam, and
       M.W. involve routine trial errors that were not raised and could not have been raised in a
       motion in limine—M.W. involved defective notice; Gilliam involved a biased jury; and
       Enoch involved several issues, including one-act/one-crime concerns, an improper opening


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       statement, and the voluntariness of defendant’s jury waiver. In other words, to create the
       impression of “uncertainty,” the State pits this court’s specific rule for preserving issues
       raised and litigated in a motion in limine, where a contemporaneous trial objection is not
       required because the issue has been considered previously, against this court’s general rule
       for preserving routine trial errors, where a contemporaneous trial objection is required
       because the issue has not been considered previously. That’s apples and oranges, and the
       reality is that this court has never applied the general rule in the specific context of an issue
       that was litigated in limine.
¶ 22        As a final matter on this point, we wish to address a statement made by the State at oral
       argument. In its brief, the State gave no indication of recognizing the distinction between
       civil and criminal forfeiture rules, as outlined above. Quite the opposite, in fact, as the State
       in its brief dismissed as “inaccurate” defendant’s claim that “this court has never found a
       claim forfeited due to the failure to contemporaneously object and that such a requirement is
       only found in civil cases.” By the time oral argument was held, however, the State readily
       acknowledged such a distinction and now was advocating that “the established civil rule be
       extended to criminal cases by requiring a trial objection in every case.”
¶ 23        We mention this because, in fact, the State is not advocating that the established civil rule
       be extended to criminal cases. Rather, it is advocating that the established civil rule be added
       to criminal cases. Again, with respect to issues litigated in limine, the civil and criminal
       forfeiture rules are different, and it is not simply that the former requires a contemporaneous
       trial objection while the latter does not. The difference is that the civil rule requires a
       contemporaneous trial objection, whereas the criminal rule requires that the issue be raised in
       the posttrial motion. In other words, both the civil rule and the criminal rule require the
       objecting party to bring the in limine issue to the trial court’s attention one additional time. In
       civil cases, that is through a contemporaneous trial objection. In criminal cases, that is
       through the posttrial motion. And this distinction makes perfect sense because, while posttrial
       motions are a mandatory prerequisite to raising an issue on appeal in criminal cases (Enoch,
       122 Ill. 2d at 186), they are not in many civil cases (Ill. S. Ct. R. 366(b)(3)(ii) (eff. Feb. 1,
       1994)). In advocating that “the established civil rule be extended to criminal cases,” the State
       surely is not suggesting that we dispense with the posttrial motion requirement in criminal
       cases, which is what extending the established civil rule to criminal cases would entail. No,
       what the State is advocating is that criminal defendants be subject to both the civil rule and
       the criminal rule, having both to contemporaneously object and to include the in limine issue
       in a posttrial motion. While we recognize that this is the approach taken in some
       jurisdictions,1 we are content to leave our rules exactly as they are.
¶ 24        In sum, then, we hold that, having objected to the admissibility of the contested
       statements both in his response to the State’s motion in limine and in his posttrial motion,
       defendant did all that our rules require to preserve that issue for review; a contemporaneous
       trial objection was not also required.


           1
            See, e.g., People v. Salcido, 186 P.3d 437, 487 (Cal. 2008); Coday v. State, 946 So. 2d 988, 995
       (Fla. 2006) (per curiam); State v. Houston, 213 P.3d 728, 740 (Kan. 2009); State v. Huston, 824
       N.W.2d 724, 733 (Neb. 2013); State v. Dennison, 608 S.E.2d 756, 757 (N.C. 2005) (per curiam); State
       v. Cain, 806 N.W.2d 597, 605 (N.D. 2011).

                                                     -7-
¶ 25                                          The Statements
¶ 26       Now that we have disposed of the forfeiture issue, we turn to the merits of defendant’s
       objections to the statements that were admitted against him. Broadly speaking, these
       statements fall into two categories. First, there are three statements that were admitted
       pursuant to the coconspirator exception to the hearsay rule.2 These are the statements that
       were the subject of the State’s motion in limine, and they include statements that
       coconspirators Getino Robinson and Tauren Giles made to coconspirator Kineta Bell, as well
       as a statement that coconspirator Kineta Bell made to her sister, Melanie Banner. In addition,
       there is a prior consistent statement that the State was allowed to elicit from the victim’s
       girlfriend, Stacy Daniels. Defendant argues that each of these statements was improper
       hearsay that the trial court should have ruled inadmissible.
¶ 27       As we have previously discussed, the appellate court below initially held that defendant
       forfeited his objections to the admissibility of the three coconspirator statements.
       Nevertheless, the appellate court then went on to address at length the admissibility of those
       statements on the merits. As to the statements that Robinson and Giles made to Bell, the
       appellate court concluded that they were clearly made during the pendency of and in
       furtherance of the conspiracy and therefore were properly admitted. 2013 IL App (2d)
       110652, ¶¶ 12-17. As to the statement that Bell made to Banner, the appellate court
       concluded that this statement was not made in furtherance of the conspiracy and that the trial
       court therefore erred in admitting it. Id. ¶¶ 18-23. The appellate court added, however, that
       this error was harmless beyond a reasonable doubt, as Bell’s statement to Banner was both
       duplicative of other competent evidence and “of such little consequence” that it could not
       have contributed to defendant’s conviction. Id. ¶ 24. Finally, as to Daniels’ prior consistent
       statement, the appellate court concluded that, although prior consistent statements ordinarily
       are inadmissible, the admission of Daniels’ statement was proper in this case given the nature
       of defense counsel’s cross-examination. Id. ¶¶ 25-29.
¶ 28       After reviewing the record, the parties’ arguments before this court, and the appellate
       court’s opinion below, we are convinced that the appellate court’s analysis of these
       statements is not only correct but also factually and legally complete. Consequently, we see
       no need to repeat or replicate that analysis here. Instead, it is enough to say that, on these
       points, we agree fully with the appellate court and therefore affirm both its reasoning and its
       conclusions.

¶ 29                                      CONCLUSION
¶ 30       Though we disagree with the appellate court’s forfeiture analysis, we agree fully with the
       appellate court’s conclusion that, with one harmless exception, the trial court properly
       admitted the statements in question. The judgment of the appellate court therefore is
       affirmed.

¶ 31       Affirmed.

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

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