                                     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.—Rehearing denied February 21, 2014.



        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.

        Justice Theis dissented upon denial of rehearing, with opinion, joined by Justices
     Kilbride and 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
     Hegewisch 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 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

                                             -2-
       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, 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
                                                -3-
       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 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,
           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.
                                                      -4-
       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 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
                                              -5-
       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.

¶ 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,

                                               -6-
       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

¶ 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

           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 destruction and were used at trial.
                                                     -7-
       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.

¶ 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

                                                -8-
       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.


¶ 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.


                                                -9-
¶ 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 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.


                                               - 10 -
¶ 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. 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.



                                               - 11 -
¶ 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.
       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
                                               - 12 -
§ 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 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
                                         - 13 -
       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 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.




                                              - 14 -
¶ 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 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

                                                - 15 -
              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 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.
                                               - 16 -
¶ 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 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. 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
                                               - 17 -
       principles. The majority opinion ignores the most basic tenet of 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 Nilsen and Kasavich. See supra ¶ 46.
       The majority acknowledges that defendant moved in a separate motion in limine to
                                                - 18 -
       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.


                          Dissenting Opinion Upon Denial of Rehearing


¶ 73      JUSTICE THEIS, dissenting:

¶ 74       In his petition for rehearing, defendant appropriately takes issue with the majority
       carving out a new exception to Illinois’ marital privilege that is not contained in our
       statutory language but, rather, is based exclusively on judicial opinions from other
       states. The majority not only disregards the language of our statute, but also fails to
       acknowledge the significant body of case law from other jurisdictions that finds a
       judicial determination of the health or worthiness of a marriage entirely irrelevant in
       determining whether the evidentiary privilege applies. See, e.g., People v. Starr, 622
       N.Y.S.2d 1010, 1012 (N.Y. App. Div. 1995) (“It has long been held that it is not
       appropriate for a trial court [for purposes of applying the marital privilege] to have to
       determine whether a marital relationship is genuine or viable ***.”); Jackson v. State,
       603 So. 2d 670, 671 (Fla. Dist. Ct. App. 1992) (per curiam) (“The courts will not
       engage in an after-the-fact analysis of whether a statement is ‘incidental to’ or ‘because
       of’ the marital relationship, because a married couple, and each of them, should be
       secure in the knowledge that their private communications are exactly that—private.”);
       United States v. Sims, 755 F.2d 1239, 1243 n.3 (6th Cir. 1985) (“We do not believe that

                                               - 19 -
       courts can or should assess the social worthiness of particular marriages or the need of
       particular marriages for the protection of the privilege.” (Internal quotation marks
       omitted.)); United States v. Byrd, 750 F.2d 585, 592 (7th Cir. 1984) (“[W]e reject the
       government’s argument that where the communications are made in a ‘deteriorated
       marriage,’ the communications privilege cannot apply. *** [T]he making of the
       determinations of when a marriage has deteriorated to the point when its
       communications are no longer confidential would involve courts in difficult factual
       inquiries in which we are reluctant to require trial courts to become involved.”); In re
       Grand Jury Empanelled October 18, 1979, 633 F.2d 276, 279 (3d Cir. 1980) (“[W]e
       are not confident that courts can assess the social worthiness of particular marriages or
       the need of particular marriages for the protection of the privilege.”); United States v.
       Lilley, 581 F.2d 182, 189 (8th Cir. 1978) (“We refuse to condition the privilege, as the
       government would have us do, on a judicial determination that the marriage is a happy
       or successful one.”).

¶ 75       I find it particularly curious that the majority relies upon two decisions of the
       Indiana Supreme Court (see supra ¶ 50), one from 1897, while completely ignoring
       that court’s most recent pronouncement from 2005:

              “If the General Assembly chooses to engraft a qualification onto the marital
              privilege based on the quality of the marriage it is of course free to do that. But
              we are reluctant to require courts to inquire into the quality of a marriage
              beyond examining whether the marriage was for purposes of disqualifying a
              witness.” Glover v. State, 836 N.E.2d 414, 419 (Ind. 2005) (citing Lilley, 581
              F.2d at 189, People v. Fields, 328 N.Y.S.2d 542, 544-45 (N.Y. App. Div.
              1972), and State v. Freeman, 276 S.E.2d 450, 455 n.2 (N.C. 1981).

       I believe this court would be wise to follow the same disciplined reasoning applied by
       the court in Glover and acknowledge that our governing statute does not contain the
       exception desired by the majority here.

¶ 76       The majority’s analysis is misleading and, at best, incomplete. For this reason, and
       for the reasons already set forth in my special concurrence, I would grant defendant’s
       petition for rehearing.



¶ 77       JUSTICES KILBRIDE and KARMEIER join in this dissent upon denial of
       rehearing.

                                              - 20 -
