                                        2014 IL 116231



                                   IN THE
                              SUPREME COURT
                                     OF
                            THE STATE OF ILLINOIS



                                   (Docket No. 116231)

                 THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
                         v. DARREN DENSON, Appellant.



                             Opinion filed November 20, 2014.



        JUSTICE THOMAS delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis
     concurred in the judgment and opinion.



                                            OPINION

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

¶3       Defendant was charged by indictment with the February 2003 murder of Kyle
     Juggins. Prior to trial, the State filed a six-page motion in limine to admit certain
     hearsay statements made by defendant’s coconspirators. Defendant filed a five-page
     written response objecting to the admission of those statements. The trial court then
     held a hearing on the State’s motion, and both sides were given the opportunity to argue
     before the court. The trial court granted the State’s motion, and the matter eventually
     proceeded to trial. The jury found defendant guilty on all counts, and defendant filed a
     posttrial motion alleging several errors, including the trial court’s pretrial granting of
     the State’s motion in limine. The trial court denied the motion and imposed sentence.
     Defendant filed a timely appeal.

¶4       On appeal, defendant argued that the trial court erred in (1) admitting the
     coconspirator statements that were the subject of the State’s motion in limine, and (2)
     allowing the State to elicit a prior consistent statement from one of its witnesses. With
     respect to defendant’s first argument, the appellate court held that defendant forfeited
     review of this issue both because he (1) failed to file a motion in limine of his own to
     exclude those statements; and (2) failed to raise a contemporaneous objection when the
     State introduced those statements at trial. 2013 IL App (2d) 110652, ¶¶ 7-10. The
     appellate court then held that, even if defendant had not forfeited the issue, he still was
     not entitled to relief because, with one harmless exception, all of the contested
     statements, including the prior consistent statement, were properly admitted. Id.
     ¶¶ 11-29. Accordingly, the appellate court affirmed defendant’s conviction and
     sentence. Id. ¶¶ 32-33.

¶5       Defendant now appeals to this court, arguing that the appellate court erred both in
     (1) holding that defendant forfeited review of the admissibility of the coconspirator
     statements, and (2) holding that two of those statements, as well as the contested prior
     consistent statement, were properly admitted.



¶6                                         DISCUSSION

¶7                                            Forfeiture

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



¶9                                           Motion in Limine

¶ 10       With respect to the appellate court’s first consideration, the State makes no attempt
       in this court to defend either the appellate court’s analysis or its conclusion. Instead, the
       State simply concedes that “the appellate court’s first reason—that defendant filed a
       response to a motion in limine rather than his own motion—does not justify a finding of
       forfeiture.” In other words, on this point, the parties agree fully that the appellate court
       erred. That said, the State’s concession on this point does not end the matter, as this
       court is not bound by a party’s concession. See People v. Horrell, 235 Ill. 2d 235, 241
       (2009). Rather, in a case such as this, involving a pure question of law, we are wise to
       examine for ourselves whether the concession is well-founded, which in this case it
       decidedly is.

¶ 11       In criminal cases, this court has held consistently that a defendant preserves an
       issue for review by (1) raising it in either a motion in limine or a contemporaneous trial
       objection, and (2) including it in the posttrial motion. See People v. Cox, 195 Ill. 2d
       378, 382 (2001); People v. Hudson, 157 Ill. 2d 401, 434-35 (1993); People v. Boclair,
       129 Ill. 2d 458, 476 (1989). Here, the State filed a six-page motion in limine to admit
       certain statements in its case against defendant. In response to the State’s motion,
       defendant filed a five-page written objection arguing why the statements at issue were
       inadmissible. The trial court then held a hearing on the State’s motion, and defense
       counsel once again had the opportunity to argue against the admissibility of the
       contested statements. At the conclusion of the hearing, the trial court allowed the
       State’s motion. Later, following his conviction, defendant filed a motion for a new trial
       arguing, inter alia, that the trial court erred in granting the State’s motion in limine. In
       short, defendant did everything that cases such as Cox, Hudson, and Boclair require,
       and we therefore hold that he properly preserved his objection to the admissibility of
       the contested statements.

¶ 12       The appellate court below reached the opposite conclusion. And one of its reasons
       for reaching that conclusion is that, rather than objecting to the admissibility of the
                                                 -3-
       contested statements in a motion in limine of his own, defendant did so in response to
       the State’s motion in limine to admit those statements. According to the appellate court,
       this was insufficient because, under this court’s settled precedent, it is a motion in
       limine that preserves an issue for review, not a response to a motion in limine. On this
       point, the appellate court was quite critical of the decision in People v. Maldonado, 398
       Ill. App. 3d 401 (2010), which held that the defendant in that case preserved the issue
       for review “when he raised it in both his reply to the State’s motion in limine and in his
       posttrial motion.” Id. at 415. According to the appellate court:

               “In a single paragraph, Maldonado morphs the law from ‘the supreme court
               holding that raising an issue in a motion in limine is sufficient to preserve an
               issue so long as it is also raised in the posttrial motion’ to ‘because defendant
               did object to the introduction of this evidence both in his reply to the State’s
               motion in limine and in his posttrial motion, we conclude that this issue was
               sufficiently preserved.’ [Maldonado, 398 Ill. App. 3d at 416.] This non sequitur
               is a patent distortion of a supreme court holding, made with no analysis or
               purported justification for the expansion of the supreme court’s holding. We are
               unaware of any case prior to Maldonado that holds that raising an issue in a
               reply to the State’s motion in limine, rather than in the defendant’s motion, is
               sufficient for preservation of the issue. To the extent that Maldonado so holds,
               we disavow that holding.” 2013 IL App (2d) 110652, ¶ 8.

       In other words, according to the appellate court, the dispositive factor in determining
       whether an issue is preserved for review is not whether that issue was the subject of in
       limine litigation, but rather which party filed the pleading that precipitated the in limine
       litigation.

¶ 13        With due respect to the appellate court, we are convinced that the above analysis
       elevates form over substance to an unwarranted and unnecessary degree. Far from
       being a “non sequitur,” Maldonado’s holding is simply a commonsense application of
       a settled principle to a specific set of facts. This court’s forfeiture rules exist to
       encourage defendants to raise issues in the trial court, thereby ensuring both that the
       trial court has an opportunity to correct any errors prior to appeal and that the defendant
       does not obtain a reversal through his or her own inaction. See, e.g., People v. Herron,
       215 Ill. 2d 167, 175 (2005); People v. Reid, 136 Ill. 2d 27, 38 (1990). In light of this, the
       critical consideration in a case such as this is not which party initiated the in limine
       litigation, but rather whether the issue being raised was litigated in limine. This is
       because, irrespective of which party initiates the in limine proceeding, as long as it
                                                 -4-
       occurs, the interests served are exactly the same. Here, for example, the trial court was
       asked before trial to rule upon the admissibility of certain statements. The State fully
       briefed the arguments for their admissibility, and defendant fully briefed the arguments
       for their inadmissibility. A hearing then was held at which both sides again presented
       their best arguments to the trial court, and based upon all it had read and heard, the trial
       court ruled. Under these circumstances, requiring defendant to recaption and refile his
       response to the State’s motion as a motion in limine of his own would accomplish
       precisely nothing, other than to clutter the record with duplicative pleadings. The
       arguments raised in defendant’s motion would be exactly the same as those raised in
       his response to the State’s motion, and the arguments advanced at the hearing on
       defendant’s motion would be exactly the same as those advanced at the hearing on the
       State’s motion. The purpose of Cox, Hudson, and Boclair is not to ensure that pretrial
       evidentiary issues are litigated twice. Rather, the point of these cases is to ensure that,
       whether by contemporaneous trial objection or in limine litigation, the trial court is
       given a full and fair opportunity to consider and rule upon the issue. That is exactly
       what happened here, and as defendant also raised the issue in a timely filed posttrial
       motion, nothing more than that was required.



¶ 14                                   Contemporaneous Objection

¶ 15        The second basis for the appellate court’s forfeiture finding is the fact that
       defendant did not object when the statements at issue in the State’s motion in limine
       were admitted into evidence at trial. According to the appellate court, “the denial of a
       motion in limine does not in itself preserve an objection to disputed evidence that is
       later introduced at trial; a contemporaneous objection to the evidence at the time that it
       is offered is required to preserve the issue for review.” 2013 IL App (2d) 110652, ¶ 9
       (citing Simmons v. Garces, 198 Ill. 2d 541, 569 (2002)). This time, the State agrees
       fully with the appellate court’s analysis and asks us to affirm the forfeiture finding on
       this basis.

¶ 16       Before addressing the merits of this portion of the appellate court’s forfeiture
       analysis, we are compelled to make an observation concerning the State’s conduct in
       the trial court relative to the position it now takes in this court. At the hearing on the
       State’s motion in limine, the trial court observed that, in an earlier trial involving one of
       defendant’s codefendants, the State chose to address the admissibility of the


                                                 -5-
       coconspirator statements during trial rather than in a motion in limine. In response to
       that observation, the State explained:

              “That is true, Judge. And that is one thing I wanted to avoid in this trial,
              especially that trial was a bench trial. Not that it makes a difference, but that
              trial was a bench trial. It was one of those things, you could stop the flow of the
              trial a little bit easier to make that—for a judge to make that finding. With a jury
              trial here, I wanted to make sure this was all out there beforehand; and that
              when we tried to get in one these statements, there wasn’t an objection and we
              had to send the jury out for an hour while we argued this, et cetera. I wanted to
              bring to the court’s attention beforehand.” (Emphasis added.)

       In other words, the State filed its motion in limine not only expecting that defendant
       would not object at trial if that motion were allowed, but precisely so that defendant
       would not object at trial if that motion were allowed. This was for the State’s benefit,
       and the State communicated this explicitly to both the trial court and defense counsel.
       Given this, we have some difficulty now entertaining the State’s argument that
       defendant forfeited review of the contested statements by failing to make a
       contemporaneous trial objection, when insulating those statements from a
       contemporaneous trial objection was the State’s express objective and implicit request.

¶ 17        As the State well knows, a party may not request to proceed in one manner and then
       later contend on appeal that the requested course of action was in error. See, e.g.,
       People v. Lucas, 231 Ill. 2d 169, 174 (2008). And while a prevailing party may defend
       its judgment on any basis appearing in the record, it may not advance a theory or
       argument on appeal that is inconsistent with the position taken below. See, e.g., People
       v. Henderson, 2013 IL 114040, ¶ 23; People v. Franklin, 115 Ill. 2d 328, 336 (1987).
       Here, the State is doing both of these things, and consequently it is entirely within our
       prerogative to reject the State’s forfeiture argument outright. See Henderson, 2013 IL
       114040, ¶ 24. That said, in the interests of resolving the issue at hand, and in large
       measure because our resolution of the issue results in no prejudice to defendant, we will
       proceed to consider the merits of the remaining portion of appellate court’s forfeiture
       analysis. In doing so, we in no way condone the State’s maneuvering in this case, and
       we strongly discourage the State from proceeding this way in the future.

¶ 18       As to the merits, we reject the appellate court’s conclusion that defendant forfeited
       review of the contested statements by failing to make a contemporaneous trial
       objection. In criminal cases, this court has held consistently that, to preserve an issue

                                               -6-
       for review, a defendant must raise it in either a motion in limine or an objection at trial,
       and in a posttrial motion. Cox, 195 Ill. 2d at 382; Hudson, 157 Ill. 2d at 434-35;
       Boclair, 129 Ill. 2d at 476. That is exactly what defendant did here, and this court has
       never required anything more. Defendant preserved the issue.

¶ 19       To be sure, the appellate court correctly noted that, in other cases, this court has
       held that the denial of a motion in limine does not, by itself, preserve an objection to the
       admission of disputed evidence and that a contemporaneous trial objection also is
       required to preserve the issue for review. See, e.g., Simmons, 198 Ill. 2d at 569; Illinois
       State Toll Highway Authority v. Heritage Standard Bank & Trust Co., 163 Ill. 2d 498,
       502 (1994). Where the appellate court went astray, however, is in failing to recognize
       that we have only ever held this in civil cases and that the forfeiture rules for civil and
       criminal cases are different. Indeed, in Heritage Standard, this court prefaced its
       recitation of the above rule with the phrase, “[i]n civil cases such as this.” Heritage
       Standard, 163 Ill. 2d at 502. The reason this phrase was necessary is because it is only
       in civil cases that a contemporaneous trial objection is required; this court has never
       required it in the criminal context.

¶ 20        The State, in turn, attempts to argue that “[u]ncertainty exists in Illinois criminal
       case law over whether a contemporaneous trial objection, in addition to inclusion in
       both the posttrial motion and an in limine filing, is required to preserve an issue for
       appellate review.” According to the State, the source of this “uncertainty” is this court’s
       perpetual inconsistency on this question. On the one hand, the State argues, there are
       decisions such as People v. Enoch, 122 Ill. 2d 176, 186 (1988), People v. Gilliam, 172
       Ill. 2d 484, 510 (1996), and In re M.W., 232 Ill. 2d 408, 430 (2009), all of which state
       that a contemporaneous trial objection is required to preserve an issue for review. On
       the other hand, there are decisions such as Cox, Hudson, and Boclair, all of which say
       that a contemporaneous trial objection is not required.

¶ 21       Now, as presented by the State, this certainly looks bad. And were this the state of
       the law, this court certainly would have some explaining and some reconciling to do.
       Fortunately, this is not the state of the law, not by a long shot. In fact, there is absolutely
       no inconsistency in the state of this court’s criminal forfeiture jurisprudence because
       there is an important distinction between the two lines of cases cited by the State, a
       point the State neglected to mention in its brief though it readily conceded it at oral
       argument. The distinction is this: Cox, Hudson, and Boclair involve issues that were or
       could have been raised in a motion in limine; Enoch, Gilliam, and M.W. do not. Rather,
       Enoch, Gilliam, and M.W. involve routine trial errors that were not raised and could not
                                                  -7-
       have been raised in a motion in limine—M.W. involved defective notice; Gilliam
       involved a biased jury; and Enoch involved several issues, including one-act/one-crime
       concerns, an improper opening statement, and the voluntariness of defendant’s jury
       waiver. In other words, to create the impression of “uncertainty,” the State pits this
       court’s specific rule for preserving issues raised and litigated in a motion in limine,
       where a contemporaneous trial objection is not required because the issue has been
       considered previously, against this court’s general rule for preserving routine trial
       errors, where a contemporaneous trial objection is required because the issue has not
       been considered previously. That’s apples and oranges, and the reality is that this court
       has never applied the general rule in the specific context of an issue that was litigated in
       limine.

¶ 22        As a final matter on this point, we wish to address a statement made by the State at
       oral argument. In its brief, the State gave no indication of recognizing the distinction
       between civil and criminal forfeiture rules, as outlined above. Quite the opposite, in
       fact, as the State in its brief dismissed as “inaccurate” defendant’s claim that “this court
       has never found a claim forfeited due to the failure to contemporaneously object and
       that such a requirement is only found in civil cases.” By the time oral argument was
       held, however, the State readily acknowledged such a distinction and now was
       advocating that “the established civil rule be extended to criminal cases by requiring a
       trial objection in every case.”

¶ 23        We mention this because, in fact, the State is not advocating that the established
       civil rule be extended to criminal cases. Rather, it is advocating that the established
       civil rule be added to criminal cases. Again, with respect to issues litigated in limine,
       the civil and criminal forfeiture rules are different, and it is not simply that the former
       requires a contemporaneous trial objection while the latter does not. The difference is
       that the civil rule requires a contemporaneous trial objection, whereas the criminal rule
       requires that the issue be raised in the posttrial motion. In other words, both the civil
       rule and the criminal rule require the objecting party to bring the in limine issue to the
       trial court’s attention one additional time. In civil cases, that is through a
       contemporaneous trial objection. In criminal cases, that is through the posttrial motion.
       And this distinction makes perfect sense because, while posttrial motions are a
       mandatory prerequisite to raising an issue on appeal in criminal cases (Enoch, 122 Ill.
       2d at 186), they are not in many civil cases (Ill. S. Ct. R. 366(b)(3)(ii) (eff. Feb. 1,
       1994)). In advocating that “the established civil rule be extended to criminal cases,” the
       State surely is not suggesting that we dispense with the posttrial motion requirement in
       criminal cases, which is what extending the established civil rule to criminal cases
                                                -8-
       would entail. No, what the State is advocating is that criminal defendants be subject to
       both the civil rule and the criminal rule, having both to contemporaneously object and
       to include the in limine issue in a posttrial motion. While we recognize that this is the
       approach taken in some jurisdictions, 1 we are content to leave our rules exactly as they
       are.

¶ 24       In sum, then, we hold that, having objected to the admissibility of the contested
       statements both in his response to the State’s motion in limine and in his posttrial
       motion, defendant did all that our rules require to preserve that issue for review; a
       contemporaneous trial objection was not also required.



¶ 25                                               The Statements

¶ 26       Now that we have disposed of the forfeiture issue, we turn to the merits of
       defendant’s objections to the statements that were admitted against him. Broadly
       speaking, these statements fall into two categories. First, there are three statements that
       were admitted pursuant to the coconspirator exception to the hearsay rule. 2 These are
       the statements that were the subject of the State’s motion in limine, and they include
       statements that coconspirators Getino Robinson and Tauren Giles made to
       coconspirator Kineta Bell, as well as a statement that coconspirator Kineta Bell made
       to her sister, Melanie Banner. In addition, there is a prior consistent statement that the
       State was allowed to elicit from the victim’s girlfriend, Stacy Daniels. Defendant
       argues that each of these statements was improper hearsay that the trial court should
       have ruled inadmissible.

¶ 27       As we have previously discussed, the appellate court below initially held that
       defendant forfeited his objections to the admissibility of the three coconspirator
       statements. Nevertheless, the appellate court then went on to address at length the
       admissibility of those statements on the merits. As to the statements that Robinson and
       Giles made to Bell, the appellate court concluded that they were clearly made during
       the pendency of and in furtherance of the conspiracy and therefore were properly

           1
              See, e.g., People v. Salcido, 186 P.3d 437, 487 (Cal. 2008); Coday v. State, 946 So. 2d 988, 995
       (Fla. 2006) (per curiam); State v. Houston, 213 P.3d 728, 740 (Kan. 2009); State v. Huston, 824 N.W.2d
       724, 733 (Neb. 2013); State v. Dennison, 608 S.E.2d 756, 757 (N.C. 2005) (per curiam); State v. Cain,
       806 N.W.2d 597, 605 (N.D. 2011).
            2
              This exception provides that any declaration by one coconspirator is admissible against all
       conspirators where the declaration was made during the pendency of and in furtherance of the
       conspiracy. People v. Kliner, 185 Ill. 2d 81, 141 (1998); Ill. R. Evid. 801(d)(2)(E) (eff. Jan. 1, 2011).
                                                      -9-
       admitted. 2013 IL App (2d) 110652, ¶¶ 12-17. As to the statement that Bell made to
       Banner, the appellate court concluded that this statement was not made in furtherance
       of the conspiracy and that the trial court therefore erred in admitting it. Id. ¶¶ 18-23.
       The appellate court added, however, that this error was harmless beyond a reasonable
       doubt, as Bell’s statement to Banner was both duplicative of other competent evidence
       and “of such little consequence” that it could not have contributed to defendant’s
       conviction. Id. ¶ 24. Finally, as to Daniels’ prior consistent statement, the appellate
       court concluded that, although prior consistent statements ordinarily are inadmissible,
       the admission of Daniels’ statement was proper in this case given the nature of defense
       counsel’s cross-examination. Id. ¶¶ 25-29.

¶ 28       After reviewing the record, the parties’ arguments before this court, and the
       appellate court’s opinion below, we are convinced that the appellate court’s analysis of
       these statements is not only correct but also factually and legally complete.
       Consequently, we see no need to repeat or replicate that analysis here. Instead, it is
       enough to say that, on these points, we agree fully with the appellate court and therefore
       affirm both its reasoning and its conclusions.



¶ 29                                        CONCLUSION

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



¶ 31      Affirmed.




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