                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




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




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JOSEPH TRZECIAK, Defendant-Appellant.



District & No.             First District, Third Division
                           Docket No. 1-10-0259


Opinion filed              April 25, 2012
Opinion withdrawn          May 7, 2012
Opinion filed              May 9, 2012
Rehearing denied           May 24, 2012


Held                       Where the testimony of defendant’s wife about defendant’s jealousy and
(Note: This syllabus       abusive conduct contributed to his conviction for the first degree murder
constitutes no part of     of a man defendant believed was having a relationship with his wife,
the opinion of the court   defendant’s conviction was reversed and the cause was remanded for a
but has been prepared      new trial, since the testimony should have been excluded under the
by the Reporter of         marital privilege, its admission was not harmless, in that, without that
Decisions for the          testimony, there was limited evidence to support defendant’s conviction,
convenience of the         and defendant was deprived of a fair trial.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 05-CR-28283; the
Review                     Hon. Angela M. Petrone, Judge, presiding.


Judgment                   Reversed and remanded.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Jennifer L. Bontrager, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                           Peter D. Fischer, Assistant State’s Attorneys, of counsel), for the People.


Panel                      JUSTICE SALONE delivered the judgment of the court, with opinion.
                           Presiding Justice Steele concurred in the judgment and opinion.
                           Justice Murphy dissented, with opinion.



                                             OPINION

¶1          Following a jury trial, defendant Joseph Trzeciak was convicted of first degree murder
        for killing Donald Kasavich with a firearm. Defendant was sentenced to 90 years’
        imprisonment consisting of 50 years for murdering Kasavich and a 40-year enhancement for
        the use of a firearm in the commission of the murder. The trial court further ordered
        defendant’s sentence to run consecutive to a 10-year sentence imposed following his
        conviction for violating federal firearms laws. On appeal, defendant raises seven claims of
        error, arguing: (1) that the trial court erred in admitting testimony which should have been
        excluded as marital privilege; (2) that the trial court erred in admitting evidence regarding
        defendant’s domestic abuse of his wife; (3) that the trial court erred in admitting evidence
        regarding defendant’s flight; (4) that the trial court erred in refusing to allow a defense
        witness to testify regarding his knowledge of the alleged murder weapon; (5) that the trial
        court erred in forcing a venire member to return every day and watch the trial, after he stated
        that he could not be impartial; (6) that the State failed to prove beyond a reasonable doubt
        that he murdered Donald Kasavich; and (7) that defendant’s sentence was excessive. For the
        reasons that follow, we reverse defendant’s conviction and remand this matter for a new trial.

¶2                                        BACKGROUND1
¶3          Defendant was charged with murdering Donald Kasavich with a firearm. Kellee O’Nions
        discovered the dead body of Donald Kasavich in his Chicago trailer on June 29, 2004.
        O’Nions, who lived with Kasavich from time to time, arrived at the trailer in the evening to
        find the trailer in disarray and Kasavich dead, lying on his back. Police investigators noted
        broken glass on a shed outside of the trailer with blood on it. DNA testing later revealed that


               1
                 The facts addressed herein are limited to those relevant to our decision to reverse
        defendant’s conviction and remand this case for a new trial and do not address all of the facts
        relevant to defendant’s nondispositive claims on appeal.

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     the blood recovered from the window belonged to defendant. Inside the house the police
     recovered one fired .40-caliber Smith & Wesson bullet and three spent cartridges of the same
     caliber. Kasavich suffered three gunshot wounds to the head and had bruises to his hands,
     arms and legs. The medical examiner recovered one .40-caliber bullet from Kasavich’s brain,
     along with several bullet fragments.
¶4       Prior to trial defendant filed several motions in limine requesting the exclusion of various
     pieces of physical and testimonial evidence. For the limited purposes of this appeal, we focus
     on defendant’s motion to exclude testimony by his wife regarding communications between
     the two on the basis of marital privilege. After argument the trial court granted defendant’s
     motion in part and denied it in part. Specifically, the trial court stated:
             “In Illinois, as in other states, the intent of marital privilege is to protect the sanctity
         of the marriage and to promote harmony between spouses. In this case, the marriage was
         in shambles. There was no harmony to protect. It is alleged there was a continuous
         pattern by defendant of violence towards his wife since the very beginning of their
         marriage, including beating her several times a week, kicking her while wearing boots,
         threatening her with guns and knives, tying her up and locking her in their home.
                                                 ***
             It is alleged defendant was committing violent behavior upon his wife, beating her
         and intimidating her with a firearm while he was making the contested threats to kill both
         her and Kasavich. The defendant’s actions and statements are intertwined and cannot be
         separated without keeping highly probative evidence from the trier of fact. I do not
         believe that the Legislature of Illinois intended to protect the type of spousal abuse
         alleged here and to keep action and communications committed during such abuse
         privileged.
             The exclusion of the testimony of defendant’s wife would be far more likely to
         frustrate justice than to promote marital harmony. The evidence also goes to the
         defendant’s motive to kill Kasavich because defendant’s wife allegedly turned to
         Kasavich for help in escaping from defendant. It suggests defendant did not intend the
         threats to be confidential. That he wanted his wife to convey them to Kasavich in order
         to convince Kasavich to stay way [sic] from her, and to dissuade Kasavich from helping
         her escape from defendant. It suggests the defendant himself was relying upon the fear
         produced by such threats rather than upon any confidential relationship of the marriage
         to achieve these goals.
             Therefore, defendant’s wife may testify as to what she told Detective Butler during
         their conversation on July 20, 2004, which is the following: In April 2004, defendant
         threatened to kill Laura. Defendant tied her up, beat her, threw her in his pickup truck,
         had a gun, drove her to Donald Kasavich’s trailer, pointed at the trailer and said he’d kill
         Kasavich and her, and then cut off Kasavich’s dick and stick it in her mouth. She and
         defendant were both outside the trailer for a few minutes, then defendant drove her back
         to their home. Defendant continued to beat her to get her to confess. She had plans to
         leave with Kasavich. End of what she may testify to.”
¶5       The court went on to exclude testimony regarding statements made by defendant to his

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     wife where she could not recall the date, and statements where defendant did not reference
     the victim. Defense counsel renewed their objection to all of the statements made by
     defendant to his wife and asked the trial court to reconsider its ruling. In denying the motion
     to reconsider, the trial court stated:
             “I will just note though that the defense is correct that the defendant was not charged
         with committing crimes against his spouse while the statement in question was being
         made by defendant, but I found that he was committing crimes against his spouse. That
         was the allegation anyway that will have to be testified to in court.
                                               ***
             A crime was being committed against her when the statement that I read was
         allegedly said. That statement will not be allowed to be testified to unless Laura testifies
         to the abuse first.”
¶6       During the voir dire one of the venire members explained to the trial court that he would
     find it difficult to be unbiased because of a family member’s experience in the criminal
     justice system. Before the entire venire, the trial court refused to excuse the venire person
     and ordered him to attend every day of the trial as an observer and observe “how a fair trial
     operates.” The trial court denied his motion and defendant proceeded to trial wherein the
     State presented several witnesses against defendant.

¶7                                       Trial Testimony
¶8       O’Nions testified that she accompanied the victim on June 25, 2004, when he visited
     Richard Roethler in Hammond, Indiana, and the victim agreed to buy a car from Roethler in
     exchange for a combination of money and cocaine. On June 26, 2004, O’Nions and the
     victim went to Pennsylvania and left the car at the victim’s trailer. When they returned on
     June 28, 2004, the car was gone. The next morning O’Nions and the victim went to
     Roethler’s house, where they learned that Roethler had taken the car back. O’Nions
     overheard the victim and Roethler arguing about the car and the cocaine. The victim left and
     O’Nions left some time thereafter, and she returned to the victim’s trailer at approximately
     1 p.m. O’Nions and the victim argued and he asked her to leave, which she did. At the time
     she left, the victim had no injuries and the trailer was intact. O’Nions testified that she knew
     defendant and that she knew the victim had bought crack cocaine from defendant in the past.
     Roethler was interviewed by Detective Kevin Eberle, of the Chicago police department, who
     concluded that he was not a suspect in the homicide.
¶9       Patricia Madigan testified that she knew defendant because he had sold her crack in the
     past. She also testified that on June 29, 2004, she called defendant to purchase crack from
     him. They made arrangements to meet at the intersection of 129th Street and Commercial
     Avenue, between 1:30 and 2 p.m. that day. Madigan stated that defendant failed to show at
     their designated meeting place, and when she called and spoke to him the second time he
     agreed to meet her at 4 p.m. that day at the same intersection. When she saw defendant at 4
     p.m., his arm was bandaged and he explained that he had been involved in a police chase
     with the Hammond police department and cut himself on the glass of his truck. She recalls
     defendant asking her if she heard anything about a murder, and when she responded that she

                                               -4-
       had not, the two went and made a drug delivery. They then picked up his daughter and he
       asked his daughter if she had heard anything about a murder in a trailer park. Defendant’s
       daughter responded that she had not, and the three of them went to defendant’s house and ate
       dinner.
¶ 10       Defendant then packed a bag and went to Michael Lesko’s house with Madigan.
       Defendant was driving Lesko’s car and Madigan was familiar with Lesko because she had
       smoked crack at his house before. Once at Lesko’s house defendant asked Madigan to wash
       his clothes and give him a haircut, which she did. After using drugs that defendant provided
       her, Madigan and defendant returned to his house in Lesko’s car. They approached his house
       from the alley and defendant entered his house alone from the back. When he returned to the
       car, Madigan saw him place a bundle in the trunk. She thought the bundle contained at least
       one rifle and possibly more guns. Thereafter defendant drove with a pistol on his lap, while
       he threw bullets out the window. Eventually, they arrived at a landfill and defendant gave
       Madigan crack cocaine to smoke and told her to wait in the car. Defendant then walked to
       the Calumet River and Madigan heard a splash. When defendant returned he did not have the
       gun that was previously in his lap.
¶ 11       Defendant then took Madigan to an empty baseball field and left her there for
       approximately 10 minutes before he returned and the two went to the house of their mutual
       friend, Daniel Barnas. Once they arrived at Barnas’ house, Madigan smoked crack in the
       basement, while defendant and Barnas spoke privately. She overheard defendant ask Barnas’
       permission to leave some things at his house. Then defendant brought the bundled contents
       into Barnas’ house. Madigan could not identify what was in the blankets. After smoking
       more crack in Barnas’ basement, Madigan and defendant returned to Lesko’s home. When
       Madigan awoke in the morning, defendant was gone and so was Lesko’s car. On July 28,
       Madigan contacted the Chicago police after learning of Kasavich’s murder and recounted
       these events in a handwritten statement.
¶ 12       Laura Nilsen testified that she was the estranged wife of defendant. She stated that she
       knew the victim, and used to live with him, but denied ever having a sexual or romantic
       relationship with him. Nilsen admitted that she used to smoke crack with the victim and
       knew defendant as one of the victim’s crack dealers. Nilsen testified that she and defendant
       began dating in November 2003 and were married January 16, 2004. She testified that during
       their marriage defendant beat her on a regular basis. He also supplied her with crack cocaine
       to support her daily drug habit. Defendant would beat her and often accuse her of having
       extramarital affairs with other men, including the victim, and he would attempt to force her
       to admit that she was having an affair through physical violence.
¶ 13       Nilsen testified that defendant beat her with his fists, his feet while wearing work boots,
       and a pistol, a photo of which she identified and was confirmed to be the murder weapon.
       She testified that defendant would tie her up using duct tape or rope and hit her with the gun.
       On several occasions he tied her up and left her that way while he left the house. The house
       was described as having multiple deadbolt locks on the doors, with keys required to open it
       from either side. There were also security cameras and a tall privacy fence in the back yard.
       The windows were tinted and the curtains were usually closed. Defendant would lock her in
       their bedroom or closets after physically abusing her.

                                                -5-
¶ 14       Nilsen testified that one night in April 2004, she received a phone call and defendant
       became irate. She said that when she would receive phone calls defendant would often
       become jealous and violent. That night he beat and hogtied Nilsen with duct tape and put her
       in his truck. Once inside the truck, he drove Nilsen to the victim’s trailer while continuing
       to beat her and accusing her of planning to leave him for the victim. She testified that she
       saw he had a gun with him. After they arrived at the victim’s trailer defendant told her that
       he was going to kill her and the victim, cut his penis off and shove it into her mouth.
       Defendant then knocked on the victim’s trailer door, but his knocks went unanswered.
       Thereafter, he returned to his truck and drove himself and Nilsen home. Defendant continued
       to abuse her and threaten her with the pistol while accusing her of cheating.
¶ 15       Nilsen went on to testify that on the evening of June 24, 2004, she received a telephone
       call from her sister and defendant began to beat her while she was on the phone. She quickly
       hung up the phone and tried to keep herself from crying while on the phone. Eventually
       defendant stopped and left the house. In the early hours of June 25, 2004, the police arrived
       at their house and Nilsen took the opportunity to escape, realizing that defendant had not
       taken her house keys from her, as he often did. That day she was taken to the police station
       in Hammond, Indiana, and interview and photographed. The photographs showed bruises on
       her face, arms, legs and back. After being interviewed and photographed she was taken to
       a hospital, where she was treated and released. She testified that she never saw defendant
       again after that day and went into hiding to avoid him. The photos of Nilsen’s facial, arm and
       leg bruises were published to the jury.
¶ 16       Nilsen was also shown a photograph of the pistol confirmed by ballistics testing to be the
       murder weapon. She testified that the gun in the photo was the gun that defendant used to
       threaten her and beat her. She did not know the make or model of the gun, but testified that
       she knew that was the gun defendant kept with him “all the time.” She was then shown a
       photo array of multiple similar model weapons and she stated that she was sure none of them
       was the gun defendant kept. She could not identify which of the guns in the photo were the
       same make and model as the gun defendant carried. She admitted telling the police about
       how defendant abused her, but not about his threats to the victim on the day they arrived at
       her house. A warrant was issued for defendant’s arrest on charges of domestic battery.
¶ 17       On July 22, 2004, defendant was observed by Hammond police officer Matthew Porter
       leaving his Hammond, Indiana, home and parking at a nearby gas station. When the officer
       began calling in his location, defendant returned to his vehicle and sped away. Officer Porter
       turned on his lights and siren in an attempt to curb the vehicle, but defendant did not stop.
       After driving through several alleys and streets, defendant drove through the fence of a little
       league field and into Chicago. Officer Porter was ordered by his superiors to return to
       Hammond and not pursue defendant any further into Chicago. Defendant’s vehicle was later
       recovered.
¶ 18       On July 26, 2004, Officer Porter observed a van pull into defendant’s driveway. The van
       had a female driver and defendant was in the passenger’s seat. Officer Porter ordered the
       occupants to stay in the vehicle and he called for back up. Defendant opened his passenger
       door and began yelling, “What’s the problem?” to the officer. Defendant then appeared at the
       front of the van, leaning over the hood and pointing a silver pistol at the officer. He moved

                                                -6-
       around, keeping the female driver between him and the officer before running into the house.
       SWAT officers arrived and a standoff ensued. Defendant eventually surrendered once SWAT
       officers entered his house and deployed a flash-bang grenade. Federal and local law
       enforcement performed a search of defendant’s home and recovered a .45-caliber handgun,
       but no drugs or large amounts of money were recovered.
¶ 19       A search of defendant’s mother’s home in Chicago yielded no evidence of illegal activity.
       Daniel Barnas’ home was also searched, following Barnas’ consent. There officers recovered
       a .40-caliber Glock handgun under a dresser in Barnas’ bedroom; they also recovered a rifle
       under the stairs near the kitchen and a prescription bottle bearing the victim’s name from a
       cabinet in Barnas’ basement. The Glock was then taken into custody by federal agents and
       tested by the Illinois State Police crime lab. It was matched as the weapon used in the
       murder. After being tested, the weapon was returned to federal authorities and eventually
       destroyed, following defendant’s conviction for federal gun charges. Additional physical
       evidence tested included fingernail scrapings under the victim’s fingernails. The DNA testing
       of those scrapings excluded defendant and Roethler as contributors but could not exclude the
       victim.
¶ 20       Defendant called John Riggio, manager of a south suburban gun shop, to testify. He
       stated that he had bought, sold and traded guns since 1967. He testified that he was familiar
       with the size, shape and appearance of Glock pistols after having seen thousands of them.
       He testified that the .40-caliber Glock pistol and 9-millimeter Glock pistol have the identical
       body and frame. Defendant did not testify and the jury returned a verdict of guilty on all
       counts.
¶ 21       On appeal, defendant challenges several portions of the trial, including pretrial motions
       and jury selection. Because we find reversible error in the trial court’s ruling on marital
       privilege testimony, we begin our analysis with defendant’s claim of error regarding the
       privileged communications.

¶ 22                                        ANALYSIS
¶ 23        Defendant contends that his conduct and his statement to his wife made in private should
       not have been admitted as evidence. The State responds that it was within the sound
       discretion of the trial court to determine the admissibility of that testimony and the trial
       court’s reasoning shows that it did not abuse that discretion. We review the decision to admit
       or exclude evidence for an abuse of discretion and will not overturn that decision absent a
       showing of abuse of that discretion. People v. Gibson, 205 Ill. App. 3d 361, 369 (1990).
¶ 24        Section 115-16 of the Code of Criminal Procedure of 1963 prohibits testimony “as to any
       communication or admission made by either of them to the other or as to any conversation
       between them during marriage” with limited exception regarding offenses against each other,
       spousal abandonment and offense against children. 725 ILCS 5/115-16 (West 2006). In
       Illinois, unless there is evidence to the contrary, there is a presumption that interspousal
       communications are intended to be confidential. People v. Sanders, 99 Ill. 2d 262, 267
       (1983). Acts as well as statements are regarded as communications for the purposes of
       marital privilege. People v. Burton, 6 Ill. App. 3d 879, 887 (1972).

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¶ 25        Here, the evidence at trial showed that defendant violently abused Nilsen and made
       threatening statements in the confines of their home. The record further shows that defendant
       restrained Nilsen and locked her inside their house as part of his ongoing abuse of her.
¶ 26        Initially, we note that none of the exceptions noted in the statute are applicable in this
       case. There were no children involved in this case. Defendant was not charged in Illinois for
       his domestic battery of his wife, nor was there a claim of spousal abandonment against him.
       Indeed, the record reflects that Nilsen left defendant, once she felt safe to do so. Thus, under
       Illinois law, the presumption that the interspousal communications between them are
       privileged should apply. We note that the case law which the trial court relied on in reaching
       the conclusion that this communication was not what the Illinois legislature intended to
       protect as privileged was exclusively from outside Illinois. We disagree.
¶ 27        As our supreme court recently stated, “[u]nless the language of the statute is ambiguous,
       this court should not resort to further aids of statutory construction and must apply the
       language as written.” People v. Young, 2011 IL 111886, ¶ 11. In addition, our supreme court
       explained in Sanders that “[t]he expansion of existing testimonial privileges and acceptance
       of new ones involves the balancing of public policies which should be left to the legislature.”
       Sanders, 99 Ill. 2d at 271. As indicated above, there is no “bad marriage” exception to
       marital privilege. Indeed, the legislature is aware of the terrible circumstances surrounding
       domestic violence in a marriage, as indicated by the exception to spousal privilege where one
       spouse is charged with domestic violence against the other. 725 ILCS 5/115-16 (West 2010).
       Even with the legislature being keenly aware of the problem of domestic violence, it created
       no “bad marriage” exception.
¶ 28        Here, we find no ambiguity in the language of the statute. The statute is prohibitive of
       testimony regarding communications and admissions made as to “any conversation between
       them during the marriage.” It is undisputed that the communications had between Nilsen and
       defendant were during their marriage and were made privately. While we recognize that the
       marriage between defendant and Nilsen was not harmonious, the legislature did not see fit
       to require marital harmony be present in order to preserve the privilege.
¶ 29        The plain language of the statute, our supreme court’s general instructions regarding
       statutory interpretation, and our supreme court’s instructions regarding this statute
       specifically limit the available exceptions to the statutory privilege to those enumerated by
       the legislature. Thus, the trial court should have applied the law and excluded the evidence
       of abuse and defendant’s threats against Nilsen and the victim. Under these circumstances,
       we find that the trial court abused its discretion by admitting the testimony regarding the
       privileged statements.
¶ 30        In Illinois, the admission of evidence in violation of marital privilege deprives defendant
       of a fair trial where it contributes to a guilty verdict. People v. Murphy, 241 Ill. App. 3d 918,
       925 (1992). Here, the record clearly establishes that Nilsen’s testimony regarding the abuse
       and defendant’s statements to her contributed to defendant being found guilty. The evidence
       at trial was that days before the victim’s murder, the victim was arguing with another man
       over being dispossessed of his vehicle. Moreover, the murder weapon and the victim’s
       prescriptions were found in another man’s home. Absent Nilsen’s testimony regarding


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       defendant’s statements of jealousy of her relationship with the victim, along with his threats
       against her and the victim, there is limited evidence to support defendant’s murder
       conviction. We find that Nilsen’s testimony regarding defendant’s motive for killing
       Kasavich contributed to his conviction. Thus, the admission of that testimony was not
       harmless where it denied defendant a fair trial. People v. Muzard, 210 Ill. App. 3d 200, 212
       (1991).
¶ 31       Accordingly, we need not address the remainder of defendant’s claims of error. Instead,
       we reverse and remand this matter for a new trial consistent with our ruling.

¶ 32       Reversed and remanded.

¶ 33       JUSTICE MURPHY, dissenting:
¶ 34       I respectfully dissent. I disagree with the majority that the trial court erred in admitting
       defendant’s statements to his wife and conduct toward her into evidence. I do not believe
       there was any intention for the statement or actions to remain private. Nor do I find that the
       actions and statements by defendant fall within the scope of protections of the marital
       privilege or the public policy supporting the legislature’s intent in enacting that provision.
¶ 35       As addressed by the majority, section 115-16 of the Code of Criminal Procedure of 1963
       (725 ILCS 5/115-16 (West 2010)) prohibits testimony by a spouse regarding communication
       or admission made by one spouse to the other during marriage. I understand the majority’s
       difficulty with the trial court’s analysis, particularly its reliance on case law from foreign
       jurisdictions in support of its conclusion that defendant’s statements fell outside of the
       marital privilege. This case falls within an area with sparse authority, but I believe that the
       facts of this case support the trial court. Further, beyond the foreign cases cited by the trial
       court, review of the relevant statutory provisions and our courts’ discussion of this issue
       supports the trial court’s finding.
¶ 36       I believe that our supreme court’s discussion of the marital privilege in People v.
       Sanders, 99 Ill. 2d 262, 270 (1983), is instructive to how we should consider the privilege
       itself, legislative intent and policy, and foreign case law in interpreting the reach of the
       privilege and any exception. Noting that the marital privilege results from a policy not of
       safeguarding the quality of evidence at trial, but from a policy of promoting family harmony,
       the Sanders court quoted the United States Supreme Court:
                “ ‘Testimonial exclusionary rules and privileges contravene the fundamental principle
           that “ ‘the public ... has a right to every man’s evidence.’ ” [Citation.] As such, they must
           be strictly construed and accepted “only to the very limited extent that permitting a
           refusal to testify or excluding relevant evidence has a public good transcending the
           normally predominant principle of utilizing all rational means for ascertaining truth.”
           [Citation.]’ ” Id. (quoting Trammel v. United States, 445 U.S. 40, 50 (1980)).
¶ 37       In Sanders, the court declined to extend any privilege to conversations between parent
       and child. The court noted that the source of all privileges in Illinois, with the exception of
       the attorney-client privilege, was statutory and adding a privilege should be done by the


                                                 -9-
       legislature, following a balancing of public policies. Id. at 270-71. Therefore, the court
       rejected defendant’s argument it should apply the privilege to include the child. The court
       did conclude that, despite the presumption that interspousal communications are intended
       to be confidential, the fact that one of the conversations between the married couple occurred
       in front of their child led to the conclusion that it was not intended to be confidential and,
       therefore, was not protected by the privilege. Id. at 270.
¶ 38        I find that the facts support the trial court’s refusal to apply the marital privilege in this
       instance. Despite the presumption of confidentiality under People v. Murphy, 241 Ill. App.
       3d 918, 924 (1992), defendant’s actions and words that he claims were improperly admitted,
       at their core, demonstrate that he did not intend they remain confidential. According to the
       testimony at trial, defendant beat Nilsen, taped her up, removed her from a private setting and
       put her in his truck, then drove to the victim’s home, voiced his threats toward Nilsen and
       the victim, then left the truck and banged on the victim’s door.
¶ 39        I agree with the State that these actions demonstrate defendant’s plain desire that his
       thoughts, and threats, not remain confidential to overcome that presumption. This behavior
       deviated from the evidence of defendant’s other beatings of Nilsen and demonstrated his
       desire to make his sentiments known to the victim. Strictly construing the privilege as
       discussed in Sanders, I would hold that the trial court properly determined that this exchange
       falls outside the parameters of the marital privilege and correctly allowed Nilsen’s testimony
       on motive.
¶ 40       Since I also concur with the trial court’s analysis of this issue, I would add that this case
       exemplifies the need to revisit the provisions of section 115-16 of the Code of Criminal
       Procedure of 1963. The majority notes that in this case, there were no children involved, no
       charges of domestic battery and no claim of spousal abandonment. In fact, the majority
       points out that once she felt safe to leave defendant, Nilsen safely moved away from
       defendant. Because of these facts, the majority reasons that the stated exceptions to the
       marital privilege were not met and the statements by defendant were protected by the
       privilege.
¶ 41       However, implicit in this statement is acceptance that the very reason for the creation of
       the privilege did not exist here–there clearly was no marital harmony to protect. While it does
       not appear that defendant faced domestic abuse charges in Illinois, the record indicates that
       a domestic battery arrest warrant had been issued in Hammond, Indiana, related to his abuse
       of Nilsen. Further, the concern supporting the privilege that a spouse will be forced to testify
       against a spouse is obviously not of issue in this case.
¶ 42        Ample support is evident from other evidentiary provisions as well as the general policy
       espoused elsewhere by the legislature concerning the need to prevent domestic violence to
       provide guidance in defining the exclusion to the marital privilege. For example, the
       physician-patient privilege and exceptions provided by statute specifically exclude
       information “in trials for homicide when the disclosure relates directly to the fact or
       immediate circumstances of the homicide.” 735 ILCS 5/8-802 (West 2010). This privilege
       similarly serves the purpose of ensuring a free and open exchange between two people while
       excluding certain information that, if kept confidential would protect the key policy interest


                                                  -10-
       in preventing homicide. Defendant’s behavior certainly is not to be protected and excluding
       testimony concerning that behavior would frustrate the interests of justice.
¶ 43       This is a troublesome case in that the facts cry out to enable the battered wife to testify
       as to her husband’s motive. The trial court understood this and ably screened the proposed
       testimony, allowing in only evidence as to motive. I look particularly at the incident where
       defendant beat his wife, bound her with duct tape, took her outside and placed her in his
       truck and then drove to the victim’s trailer where he got out and pounded on the victim’s
       door. This was done in public, in plain sight. By these actions defendant waived the marital
       privilege. While I find reason to affirm the trial court, I also would encourage an additional
       exception in section 115-16 for homicide cases where a spouse voluntarily testifies.




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