                                2013 IL 114491

                            IN THE
                       SUPREME COURT
                              OF
                     THE STATE OF ILLINOIS


                     (Docket No. 114491)
     THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                 JOSEPH TRZECIAK, Appellee.

                      Opinion filed November 15, 2013.

        JUSTICE BURKE delivered the judgment of the court, with
     opinion.
        Chief Justice Garman and Justices Freeman, Thomas, and
     Kilbride concurred in the judgment and opinion.
        Justice Theis specially concurred, with opinion, joined by Justice
     Karmeier.



                                  OPINION

¶1       Defendant, Joseph Trzeciak, was convicted of the murder of
     Donald Kasavich. The appellate court, with one justice dissenting,
     reversed defendant’s conviction, holding that a threat made by
     defendant to his wife, Laura Nilsen, that he would kill her and
     Kasavich, was inadmissable under Illinois’ marital privilege, section
     115-16 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-
     16 (West 2010)), and that defendant was prejudiced by the
     statement’s introduction at trial. 2012 IL App (1st) 100259. For the
     reasons set forth below, we find that the threat was not barred by the
     marital privilege and, therefore, reverse the judgment of the appellate
     court.
¶2                               BACKGROUND
¶3        On June 29, 2004, the victim, Donald Kasavich, was found dead
     in his trailer in the Hegwisch area of Chicago. Kasavich suffered
     three gunshot wounds to the head. His trailer was in disarray and a
     window had been broken. Defendant, a resident of Hammond,
     Indiana, was subsequently charged with Kasavich’s murder.
¶4        Prior to trial, defendant filed several motions to exclude various
     pieces of evidence and testimony, including a motion to exclude
     evidence of his prior acts of domestic violence against his wife, Laura
     Nilsen, and a motion to exclude confidential communications made
     to her. With respect to the former motion, defendant sought to
     exclude his general pattern of violence and abuse toward Nilsen;
     evidence that in April of 2004, defendant beat her and then drove her
     to Kasavich’s trailer; and evidence that he was jealous Nilsen was
     going to run off with Kasavich and, therefore, beat her. With respect
     to the latter motion, defendant sought to exclude a statement made by
     him to Nilsen in April of 2004, in which he threatened to kill both her
     and Kasavich.
¶5        The circuit court of Cook County denied in part and allowed in
     part defendant’s motion to exclude evidence of defendant’s violence
     against Nilsen. The court ruled that some evidence of domestic
     violence was relevant to defendant’s motive for killing Kasavich and
     also relevant to intent. The trial court, however, limited the evidence
     that was admissible, finding that the admission of all of the evidence
     would be more prejudicial than probative.
¶6        The trial court denied defendant’s motion to exclude certain
     testimony from Nilsen based on the marital privilege. The trial court
     framed the issue as:
              “whether or not [the] marital privilege prohibits the testimony
              of defendant’s wife against defendant in defendant’s trial for
              a murder committed against a third party, Donald Kasavich,
              as to defendant’s actions toward his wife, and as to
              defendant’s contemporaneous threats to kill his wife and
              Kasavich when defendant was not charged with committing
              an offense against his wife.”
     After discussing several Illinois cases as well as cases from other
     jurisdictions, and noting the purpose underlying the marital privilege,
     the circuit court concluded that our legislature could not have
     intended to protect the type of spousal abuse alleged in this case or
     the communications made during such abuse as privileged. The court

                                       -2-
     further found that defendant’s conduct in April 2004 and his threat
     was admissible to show defendant’s motive to kill Kasavich because
     Nilsen allegedly turned to Kasavich for help in escaping from
     defendant. The court also found that defendant did not intend the
     threat to be confidential in that he expected Nilsen to convey it to
     Kasavich to convince Kasavich to stay away from Nilsen and to
     dissuade him from helping her escape from defendant. The court
     reasoned that defendant relied upon the fear produced by such threats
     rather than upon any confidential relationship of the marriage.
     Accordingly, Nilsen was permitted to testify regarding what she told
     a detective on July 20, 2004, specifically:
              “In April 2004, defendant threatened to kill Nilsen. Defendant
              tied her up, beat her, threw her in his pickup truck, had a gun,
              drove her to Donald Kasavich’s trailer, pointed at the trailer
              and said he’d kill Kasavich and her, and then cut off
              Kasavich’s dick and stick it in her mouth. She and defendant
              were both outside the trailer for a few minutes, then defendant
              drove her back to their home. Defendant continued to beat her
              to get her to confess.”
¶7       At trial, Kellee O’Nions testified that she discovered Kasavich’s
     dead body on June 29, 2004. O’Nions stated she had lived with
     Kasavich from time to time for several years. O’Nions admitted she
     had been a crack cocaine addict for more than 20 years but stated she
     no longer used it. O’Nions also stated that she and Kasavich had
     taken drugs together and she was aware Kasavich often purchased
     crack from defendant.
¶8       O’Nions testified that she accompanied Kasavich on June 25,
     2004, to Richard Roethler’s home in Hammond. O’Nions had known
     Roethler for approximately 20 years and introduced Kasavich to him
     because Kasavich was looking for a car to buy and Roethler had a car
     to sell. Kasavich agreed to buy a red car from Roethler in exchange
     for a combination of money and cocaine.
¶9       On June 26, O’Nions left with Kasavich to go to Pennsylvania to
     visit some of Kasavich’s family. They drove Kasavich’s van and left
     the red car parked at his trailer. When they returned on June 28, the
     red car was gone. The next morning O’Nions and Kasavich went to
     Roethler’s house, where they learned Roethler had taken the car back.
     O’Nions overheard Kasavich and Roethler arguing about the car and
     the cocaine. Kasavich left, but O’Nions remained to talk to Roethler
     about giving the car back to Kasavich. After Roethler refused,

                                       -3-
       O’Nions returned to Kasavich’s trailer. O’Nions and Kasavich argued
       and he asked her to leave, which she did. At the time she left,
       Kasavich had no injuries, the trailer was intact, and the window was
       not broken.
¶ 10       Roethler was later interviewed by Chicago police Detective Kevin
       Eberle, who concluded Roethler was not a suspect in Kasavich’s
       homicide. In addition, Roethler was excluded as a suspect based on
       physical evidence taken from the victim and the crime scene.
¶ 11       Patricia Madigan testified she met defendant through a mutual
       friend, Danny Barnas.1 She bought crack cocaine from defendant,
       which she had used on a daily basis in 2004. However, in 2009, when
       the trial took place, she testified she had been clean for three or four
       years. Madigan did not know Kasavich.
¶ 12       Madigan testified that, on June 29, 2004, she called defendant to
       purchase crack from him. They made arrangements to meet at the
       intersection of 129th Street and Commercial Avenue in Chicago,
       between 1:30 and 2 p.m. that day. Defendant failed to show up.
       Madigan again called defendant and when she finally reached him, he
       agreed to meet her at 4 p.m. at the same intersection. Madigan drove
       Michael Lesko’s car to the designated location. When she saw
       defendant, his arm was bandaged and bloody and his clothes had
       blood on them. Defendant told Madigan he had been involved in a
       police chase with the Hammond police department and cut himself on
       glass from his truck.2 Defendant then asked Madigan if she had heard
       anything about a murder at a trailer court. She responded she had not.
¶ 13       Madigan drove defendant to another drug delivery, then defendant
       took over driving Lesko’s car, and they picked up his daughter. After
       his daughter got into the car, defendant asked her if she had heard
       anything about a murder in a trailer court. When she responded she
       had not, defendant told her to “mind her own fuckin business.” The
       trio then went to Burger King and back to defendant’s house to eat.
¶ 14       When they got back to defendant’s house, he packed an overnight
       bag and he and Madigan went to Lesko’s house. At Lesko’s house,
       defendant asked Madigan to wash his clothes and give him a haircut,
       which she did. Defendant also bathed, after which Madigan

           1
           Barnas was deceased at the time of defendant’s trial.
           2
            Testimony was offered at trial from a Chicago police detective that
       there was no external damage to defendant’s truck or any broken glass.

                                         -4-
       rebandaged his arm. While waiting for defendant’s clothes to dry,
       Madigan, defendant and Lesko used drugs.
¶ 15       Thereafter, Madigan and defendant returned to his house in
       Lesko’s car. Defendant exited the car, walked down an alley and went
       over a fence into his yard. When he returned approximately 5 to 10
       minutes later, he threw items wrapped in a blanket over the fence.
       According to Madigan, the items appeared to be rifles or guns.
       Defendant put the guns in the trunk. Defendant then drove down
       130th Street with a pistol on his lap, throwing bullets out the window.
       Subsequently, defendant drove to a landfill by the Calumet River.
       Defendant gave Madigan crack cocaine to smoke and told her not to
       watch what he was doing. Defendant exited the car and Madigan
       heard a splash. When defendant returned, he did not have the gun that
       was previously on his lap.
¶ 16       The two went to the house of their mutual friend, Barnas. Once
       they arrived at Barnas’ house, Madigan smoked crack in the basement
       while defendant and Barnas spoke privately. She overheard defendant
       ask Barnas’ permission to leave some things at his house. Defendant
       then brought the blanket from the trunk into Barnas’ house. After
       smoking more crack in Barnas’ basement, Madigan and defendant
       returned to Lesko’s home. The two stayed the night and in the
       morning, defendant left with Lesko’s car. Madigan called her mother
       to pick her up and she then learned about Kasavich’s murder.
¶ 17       The next time Madigan saw defendant was at Barnas’ house
       sometime in July. She heard defendant asked Barnas if he could
       remove the rifles he had left there. At this time, the rifles were in a
       golf bag. On July 28, Madigan spoke with a Chicago police detective
       and recounted these events in a handwritten statement. She also
       testified before a grand jury.
¶ 18       Michael Lesko testified that he too used crack cocaine in 2004
       and knew both defendant and Madigan. In 2004, he owned a white
       Oldsmobile and would lend it to people, including Madigan and
       defendant. According to Lesko, between 6 and 8 p.m. on June 29, he
       was sitting in his kitchen when Madigan and defendant walked in
       unannounced. Defendant’s arm was bandaged with some type of cloth
       and there was blood on his clothes. Defendant told Lesko he had a
       couple too many beers, fell down, and injured his arm. Defendant
       asked if he could use Lesko’s bathroom to clean up, which Lesko
       found unusual since defendant had never made such a request before.
       While defendant took a bath, Madigan washed his clothes. When

                                        -5-
       defendant was finished with his bath, Madigan rebandaged
       defendant’s arm and then cut his hair, which was also unusual to
       Lesko. The three talked for a bit and then Lesko went to bed. The
       next day defendant left in Lesko’s car.
¶ 19        Lesko testified that when he got his car back a day or two later, it
       was very clean. Lesko testified that in July, the police showed up at
       his house and asked for consent to search his vehicle. He gave the
       police consent and they took his car.
¶ 20        Laura Nilsen testified she was the estranged wife of defendant.
       The trial was the first time she had seen defendant since June 24,
       2004. Nilsen stated she knew Kasavich and used to live with him, but
       she denied having a sexual or romantic relationship with him. Nilsen
       admitted that in 2003 to 2004, she smoked crack daily. When she
       lived with Kasavich, they would take drugs together, which they often
       purchased from defendant.
¶ 21        Nilsen testified that she and defendant began dating in November
       2003 and were married in January 2004. After she moved in with
       defendant in Hammond, he immediately became very abusive toward
       her, beating her daily. Nilsen testified that defendant beat her with his
       fists, kicked her while wearing work boots, hit her with a gun, tied her
       up using duct tape or rope, and locked her in the bathroom and closet.
¶ 22        Nilsen described defendant’s house as having multiple deadbolt
       locks on the doors, with keys required to open them from both sides.
       A two-by-four board was also propped against the front door to block
       it. There were security cameras at both the front and rear of the house,
       as well as a tall privacy fence surrounding the yard. The windows
       were tinted and the curtains were usually closed.
¶ 23        Nilsen testified that one night in April 2004, defendant became
       irate and violent because she received a phone call, as he always did.
       They fought, and while beating her, defendant accused her of
       planning to leave with Kasavich. She denied these accusations, but
       defendant tied her up and put her in his truck. Once in the truck, he
       drove to Kasavich’s trailer, which was approximately five minutes
       from defendant’s home, while continuing to beat her and accusing her
       of planning to leave him. Nilsen testified that defendant had a gun
       with him and when they arrived at Kasavich’s trailer, defendant told
       her “he was going to cut [Kasavich’s] dick off and put it in [her]
       mouth and then kill [them] both.” Defendant exited the truck and
       knocked on Kasavich’s door, but his knocks went unanswered.
       Defendant then returned to the truck and drove home.

                                         -6-
¶ 24       After this incident, defendant repeatedly accused Nilsen of
       planning to leave with Kasavich and of cheating and having affairs
       with others. He regularly tried to beat a confession out of her, often
       putting his gun in her mouth while threatening her.
¶ 25       Nilsen further testified that on the evening of June 24, 2004, she
       received a telephone call from her sister and defendant began to beat
       her while she was on the phone. She hung up as quickly as possible.
       Eventually defendant stopped beating her and left the house.
¶ 26       In the early hours of June 25, the Hammond police arrived at the
       house. Because the pit bulls were barking, the police yelled at her to
       put them away. As she was doing so, she noticed defendant had left
       the house keys. She let herself out and went with the police to the
       Hammond police station, where she was interviewed and
       photographed. The photographs showed bruises, both new and old, on
       her face, arms, legs, and back. After being interviewed and
       photographed, she was taken to a hospital. Thereafter, she went to her
       mother’s house for a day and then went into hiding from defendant.
       Nilsen testified that she did not talk to Kasavich after this day and
       eventually learned he had been murdered. After the incident on June
       24, a warrant was issued for defendant’s arrest on charges of domestic
       battery.
¶ 27       Other evidence was presented at trial. Specifically, a piece of
       glass with blood on it was recovered from a shed outside of
       Kasavich’s trailer. Forensic testing showed the blood was
       defendant’s. Following defendant’s arrest, a consensual search was
       made at Barnas’ home. Officers recovered a .40-caliber Glock Model
       27 handgun, a rifle, and prescription bottles bearing Kasavich’s name.
¶ 28       The handgun was tested by the Illinois State Police Crime Lab
       and was identified as the weapon used to kill Kasavich. Three fired
       cartridges and one live cartridge from a .40-caliber gun were
       recovered inside Kasavich’s trailer. Also, the medical examiner
       testified that one .40-caliber bullet was recovered from Kasavich’s
       brain. All of these items were confirmed to have come from the
       recovered handgun.3


           3
            After the handgun was tested, it was returned to the Bureau of
       Alcohol, Tobacco, Firearms and Explosives (ATF). In September 2008,
       unbeknownst to the Chicago police department, the ATF destroyed the gun
       as a matter of routine since a federal firearms case against defendant was
       complete. Two photographs of the handgun had been taken before its

                                          -7-
¶ 29       At trial, Nilsen was shown a photograph of the handgun. She
       testified the gun in the photo was the gun defendant used to threaten
       her and beat her. She did not know the make or model, but knew it
       was the gun defendant kept with him “all the time.”
¶ 30       Detective Eberle of the Chicago police department testified that
       the police began looking for defendant in connection with Kasavich’s
       murder on July 3 after they received an anonymous tip.
¶ 31       Hammond police officer Matthew Porter testified that on July 22
       he was aware there was a warrant for defendant’s arrest and was
       surveilling defendant. At approximately 12:30 a.m., Porter observed
       defendant pull out of his driveway with his lights off, pull into a gas
       station across the street, and get out. Porter drove up behind
       defendant. As Porter called in his location, defendant jumped back
       into his vehicle and sped away. Porter activated his lights and siren
       but defendant did not stop. After driving through several alleys and
       streets, defendant drove through a fence, across a Little League field,
       and then through a second fence. Defendant then drove through
       Hammond into Chicago, with Porter in pursuit. Approximately three
       miles into Chicago, Porter was ordered by his superiors to return to
       Hammond and end his pursuit of defendant.
¶ 32       On July 26, Porter was still searching for defendant. At
       approximately 1:30 a.m., as he was driving down an alley parallel to
       defendant’s driveway, he observed a van pull out of defendant’s
       driveway and then pull back in. The driver was a female and
       defendant was in the passenger’s seat. Porter pulled behind the van,
       activated his lights, and called for backup. Porter then exited his
       vehicle, remaining next to it with his firearm drawn, and ordered the
       occupants to stay in the vehicle.
¶ 33        Defendant opened the passenger door and began yelling, “What’s
       the problem?” Porter again told defendant to remain in the vehicle.
       However, defendant jumped out and ran toward the front of the van.
       Defendant then leaned over the front hood of the van and pointed a
       silver pistol in Porter’s direction. Defendant continued to move
       around, keeping the female driver between himself and Porter. Porter
       ordered defendant several times to get to the ground and drop his gun.
       Instead, defendant began running down the alley beside his garage
       toward his house.



       destruction and were used at trial.

                                             -8-
¶ 34       Several officers arrived and set up a perimeter around defendant’s
       house. SWAT officers also arrived. At this point, there were
       approximately 30 police personnel present on the scene, including
       Hammond police officers, special agents from the ATF, and ATF task
       force agents, as well as other state and local authorities and
       negotiators. Even after teargas was shot into every window of
       defendant’s house, he refused to come out. The officers then made the
       decision to go in and the rear door was rammed down.
¶ 35       Lieutenant Ralph Bogie of the Hammond police department
       entered the house first. Bogie testified that when he entered,
       immediately in front of him was a staircase to the basement. His
       flashlight illuminated a person pointing a silver gun at him at the foot
       of the stairs. Bogie yelled to the person between six to eight times to
       drop the gun. Finally, Bogie heard a metal object hit the floor.
       Defendant was subsequently arrested.
¶ 36       Based on all of the above evidence, the jury found defendant
       guilty of first degree murder. Defendant was sentenced to 50 years’
       imprisonment for the murder conviction and 40 years’ imprisonment
       for the firearm enhancement, to run consecutively. These sentences
       also were to run consecutively to a 10-year federal firearm sentence
       defendant was already serving.
¶ 37       Defendant appealed, raising seven challenges. The appellate court
       addressed only the first issue, whether Nilsen’s testimony should have
       been excluded under the marital privilege. The appellate court found
       that none of the exceptions in section 115-16 were applicable. 2012
       IL App (1st) 100259, ¶ 26. Therefore, the appellate court concluded
       the communications between Nilsen and defendant were protected by
       the marital privilege because they were made during their marriage
       and were made privately. Thus, the trial court should have applied the
       privilege and excluded the evidence of abuse and defendant’s threats
       against Nilsen and the victim. 2012 IL App (1st) 100259, ¶¶ 28-29.
       The appellate court further held that the record clearly showed
       Nilsen’s testimony contributed to defendant being found guilty and
       therefore reversed and remanded for a new trial. Justice Murphy
       dissented, reasoning that defendant did not intend for his conduct and
       threat to remain confidential.
¶ 38       We granted the State’s petition for leave to appeal.




                                         -9-
¶ 39                                 ANALYSIS
¶ 40       This case requires us to determine the scope of Illinois’ marital
       privilege, which is found in section 115-16 of the Code of Criminal
       Procedure of 1963 (725 ILCS 5/115-16 (West 2010)). The primary
       objective of statutory construction is to ascertain and give effect to the
       legislature’s intent. Citizens Opposing Pollution v. ExxonMobil Coal
       U.S.A., 2012 IL 111286, ¶ 23. The best indicator of the legislature’s
       intent is the language of the statute itself, given its plain and ordinary
       meaning. Id. It is axiomatic that when construing a statute, we
       “cannot allow formality to trump substance where the result would be
       contrary to the purposes for which the statute was enacted and lead to
       consequences which the legislature could not have intended.”
       Township of Jubilee v. State of Illinois, 2011 IL 111447, ¶ 35. A
       cardinal rule of statutory construction is that a court can consider the
       reason for the law, the problems sought to be remedied, the purposes
       to be achieved, and the consequences of construing the statute one
       way or another. People v. Gutman, 2011 IL 110338, ¶ 12; People v.
       Garcia, 241 Ill. 2d 416, 421 (2011). In interpreting a statute, we
       presume the legislature did not intend absurdity, inconvenience, or
       injustice. Citizens Opposing Pollution v. ExxonMobil Coal U.S.A.,
       2012 IL 111286, ¶ 23.
¶ 41       In Illinois, one spouse may testify for or against the other spouse
       in criminal cases. However, section 115-16 of the Code provides that
       neither “may testify as to any communication or admission made by
       either of them to the other or as to any conversation between them
       during marriage, except in cases in which either is charged with an
       offense against the person or property of the other.” 725 ILCS 5/115-
       16 (West 2010). The purpose of this privilege, derived from common
       law, is to promote marital harmony and stability. People v. Foskey,
       136 Ill. 2d 66, 94 (1990). See also Jaffee v. Redmond, 518 U.S. 1, 11
       (1996); Trammel v. United States, 445 U.S. 40, 53 (1980). It is
       intended to further marital harmony, mutual understanding and trust
       by encouraging full disclosure, free communication, and confidential
       communications between spouses. People v. Simpson, 39 Ill. App. 3d
       661, 669 (1976), rev’d on other grounds, 68 Ill. 2d 276 (1977). See
       also 81 Am. Jur. 2d Witnesses § 284, at 307 (2004) (“The purpose of
       this doctrine is to promote and encourage the utmost confidence
       between spouses and, thus, aid in the preservation of the marriage
       status.”); McCormick on Evidence § 86, at 340 (John W. Strong ed.,
       5th ed. 1999) (“The argument traditionally advanced in support of the


                                         -10-
       marital communications privilege is that the privilege is needed to
       encourage marital confidences, which confidences in turn promote
       harmony between husband and wife.”); 8 John Henry Wigmore,
       Evidence § 2332, at 642 (McNaughton rev. ed. 1961) (“[t]he policy
       which should lie at the foundation of every rule of privileged
       communications *** appears to be satisfied” in the case of spousal
       communications: i.e., the communications originate in confidence,
       the confidence is essential to the relation, the relation is a proper
       subject of encouragement by the law, and the injury that would inure
       to the relation by disclosure probably exceeds the benefit that would
       result from ignoring the privilege in the “judicial investigation of
       truth”).
¶ 42       We have rejected the argument that section 115-16 applies to
       “any” conversation or communication and, instead, have held that the
       statutory privilege, like the similar common law privilege, applies
       only to communications which are intended to be confidential. People
       v. Palumbo, 5 Ill. 2d 409, 415 (1955). See also Foskey, 136 Ill. 2d at
       89; People v. Sanders, 99 Ill. 2d 262, 267 (1983). There is a
       presumption that communications between spouses, privately made,
       are intended to be confidential. However, where it appears from the
       nature or circumstances under which the communication was made
       that confidentiality was not intended, the communication is not
       privileged. Palumbo, 5 Ill. 2d at 414. See also Wolfle v. United States,
       291 U.S. 7, 14 (1934); Sanders, 99 Ill. 2d at 267.
¶ 43       Moreover, not all acts are regarded as communications. Implicit
       in the term “communication” found in section 115-16 is the idea of
       speech. People v. Derr, 316 Ill. App. 3d 272, 278 (2000). See also
       People v. Krankel, 105 Ill. App. 3d 988, 991 (1982). Certain acts,
       however, may be deemed a communication, such as a nod of the head
       or wave of the hand. See People v. Murphy, 241 Ill. App. 3d 918, 924
       (1992); Krankel, 105 Ill. App. 3d at 991. In order to fall within the
       privilege, the nonverbal conduct must clearly be intended as a
       substitute for, or in lieu of, an oral communication, i.e., it was
       intended to convey a message. Simpson, 39 Ill. App. 3d at 670. See
       Derr, 316 Ill. App. 3d at 278. See also Paul F. Rothstein & Susan W.
       Crump, Federal Testimonial Privileges § 4:12 (2d ed. 2012) (“the
       communication should include at least a gesture that is
       communicative or is intended by one spouse to convey a message to
       the other”). The mere description by one spouse of general,
       noncommunicative conduct is not protected by the marital privilege.


                                        -11-
       Derr, 316 Ill. App. 3d at 278; Krankel, 105 Ill. App. 3d at 991;
       Simpson, 39 Ill. App. 3d at 670.
¶ 44       Thus, two elements must be met before a communication between
       spouses falls within the privilege. First, the communication must be
       an utterance or other expression intended to convey a message.
       Second, the message must be intended by the communicating spouse
       to be confidential in that it was conveyed in reliance on the
       confidence of the marital relationship.
¶ 45       The appellate court below, after quoting section 115-16, found
       that none of the exceptions in the statute were applicable. The
       appellate court stated, “[a]cts as well as statements are regarded as
       communications for the purposes of marital privilege.” 2012 IL App
       (1st) 100259, ¶ 24. The appellate court then concluded that the trial
       court should have “excluded the evidence of abuse” against Nilsen
       under the marital privilege. We disagree.
¶ 46       First, it should be noted that defendant’s motion to exclude
       confidential communications sought only to bar the statement he
       made in April 2004 where he threatened to kill his wife and Kasavich.
       Defendant also moved, in a separate motion, to exclude his general
       pattern of violence and abuse toward his wife, the events that
       occurred in April 2004, and evidence he was jealous that his wife was
       going to run off with Kasavich and therefore beat her. That second
       motion, however, was not based on the marital privilege and the
       appellate court did not address that motion, ruling only that the trial
       court erred in admitting evidence under the marital privilege.
¶ 47       Further, we find that the events that occurred in April 2004,
       including defendant’s conduct at that time, would not fall within the
       marital privilege. First, defendant’s acts were not nonverbal conduct
       intended to convey a message. Second, it is commonly recognized
       that “[a] spouse’s testimony as to physical acts of cruelty or abuse by
       the other spouse is admissible on the ground that no confidential
       communication is involved, or that the information was not gained as
       a result of the marital relation.” 81 Am. Jur. 2d Witnesses §§ 287, 313
       (2004). See also 98 C.J.S. Witnesses § 305 (2002). See, e.g., United
       States v. Koehler, 790 F.2d 1256 (5th Cir. 1986); Rich v. Rich, 887
       So. 2d 289 (Ala. Civ. App. 2004); Morgan v. United States, 363 A.2d
       999 (D.C. 1976); State v. Parent, 02-835 (La. App. 5 Cir. 12/30/02);
       836 So. 2d 494; Lenkiewicz v. Kastner, 227 N.W. 689 (Mich. 1929);
       State v. Nettleton, 760 P.2d 733, 737 (Mont. 1988); Yowell v.
       Vaughn, 85 Mo. App. 206 (1900); Millspaugh v. Potter, 71 N.Y.S.

                                        -12-
       134 (N.Y. App. Div. 1901); State v. Greaves, 971 N.E.2d 987 (Ohio
       Ct. App. 2012); State v. Govan, 465 S.E.2d 574 (S.C. Ct. App. 1995);
       Adams v. State, 563 S.W.2d 804 (Tenn. Crim. App. 1978); Sterling
       v. State, 814 S.W.2d 261 (Tex. App. 1991); State v. Americk, 256
       P.2d 278 (Wash. 1953); State v. Richards, 391 S.E. 354 (W. Va.
       1990).
¶ 48       We find the above authorities instructive and persuasive.
       Accordingly, we hold that testimony regarding defendant’s conduct
       in April 2004, i.e., beating her, tying her up, tossing her in his truck,
       and driving to Kasavich’s house, need not have been barred by the
       marital privilege.
¶ 49       We now consider whether defendant’s threat to kill Nilsen and
       Kasavich must be barred by that privilege. The appellate court
       concluded that defendant’s threat was a private communication
       between defendant and Nilsen, and that no exception to section 115-
       16 applied. Thus, the appellate court held that the trial court should
       have barred defendant’s threat under the marital privilege. We
       disagree and conclude that defendant’s threat was not barred by the
       privilege because it was not a confidential communication.
¶ 50       No court in Illinois has yet defined what “confidential”
       encompasses. However, other jurisdictions have and not every
       conversation between husband and wife made in private is deemed
       confidential. The privilege “covers only those private exchanges
       which ‘would not have been made but for the absolute confidence in,
       and induced by, the marital relationship’ ” and “ ‘prompted by the
       affection, confidence and loyalty engendered by such relationship.’ ”
       People v. D’Amato, 430 N.Y.S.2d 521, 522-23 (N.Y. Sup. Ct. 1980).
       See also Nettleton, 760 P.2d at 738; 81 Am. Jur. 2d Witnesses § 297
       (2004); Paul F. Rothstein & Susan W. Crump, Federal Testimonial
       Privileges § 4:12 (2d ed. 2012); George L. Blum, “Communications”
       Within Testimonial Privilege of Confidential Communications
       Between Husband and Wife as Including Knowledge Derived from
       Observation by One Spouse of Acts of Other Spouse, 23 A.L.R.6th 1
       (2007). As another court has stated, “ ‘[o]nly those communications
       passing from one marriage partner to the other because of the
       confidence resulting from their intimate marriage relationship receive
       such protection.’ ” Rubalcada v. State, 731 N.E.2d 1015, 1022 (Ind.
       2000) (quoting Rode v. State, 524 N.E.2d 797, 799 (Ind. Ct. App.
       1988)). Conversely, “ ‘if what is said or done by either has no relation
       to their mutual trust and confidence as husband and wife, then the


                                         -13-
reason for secrecy ceases.’ [Citation.]” Rubalcada, 731 N.E.2d at
1022 (defendant’s threats to kill wife and whatever she loved most if
she disclosed facts about murder he committed not barred by spousal
privilege because “[s]uch communications do not enhance the mutual
trust and confidence of the marital relationship that the privilege is
intended to protect”). See also Beyerline v. State, 45 N.E. 772 (Ind.
1897) (not every conversation between husband and wife, nor every
word or act said or done protected under “seal of secrecy”; only those
communications passed from one to another by virtue of the
confidence resulting from their intimate relationship are protected; if
what is said or done has no relation to mutual trust and confidence as
husband and wife, then the reason for secrecy ceases); State v.
Edwards, 260 P.3d 396 (Mont. 2011) (a spouse does not rely on the
confidence of the marital relationship when the purpose of the
communication is to “terrify and intimidate” the other spouse; wife’s
testimony that defendant “pulled a shotgun and put it in [her] face and
told [her] if [she] ever went to the cops, or ever told anyone, that he
would kill [her], kill [her] family, and burn [her] grandmother’s house
down” admissible in prosecution of defendant for murder because
communication not made in reliance on confidences of marital
relationship); State v. Applegate, 668 S.W.2d 624, 635 (Mo. Ct. App.
1984) (husband’s threats to do violence to former wife not
confidential communications within marital privilege statute); People
v. Mills, 804 N.E.2d 392, 396 (N.Y. 2003) (defendant’s admission to
killing in past and threat to kill his wife admissible in trial for past
murder because “[c]ommunications or threats made during the course
of physical abuse are not entitled to be cloaked in the privilege
because the maker of the statement is not ‘relying upon any
confidential relationship to preserve the secrecy of his acts and
words’ ”); People v. McCormack, 104 N.Y.S.2d 139, 141 (N.Y. App.
Div. 1951) (testimony that, while brandishing bayonet, husband
threatened wife with “I am going to kill. I am going to kill everybody.
I’m going to kill any *** person I see” admissible in prosecution for
murder of man in street shortly thereafter where method and nature
of communications strongly militated against view that confidential;
testimony of spouse as to words uttered or acts committed while in
course of a personal assault or injury by other not deemed within
spousal privilege especially where defendant knew wife might reveal
his utterances and actions if she had him arrested and prosecuted for
his attack on her), aff’d, 103 N.E.2d 895 (N.Y. 1952); Commonwealth
v. Spetzer, 813 A.2d 707, 720 (Pa. 2002) (defendant’s statements to

                                 -14-
       wife admitting he raped her minor daughter, details of plans to abduct
       the daughter and her sister and to rape them, and intimidation of wife
       and daughter to recant their accusations admissible against defendant
       in trial for rape of daughter because communications were not
       confidential since not “sensitive, marital harmony-inspiring
       communications contemplated by” spousal privilege).
¶ 51        Whether a particular communication is privileged as having been
       made in reliance upon the marital confidence depends on the nature
       and form of the communication and the circumstances immediately
       surrounding its making. Such a determination is a preliminary
       question of fact to be decided by the trial court. D’Amato, 430
       N.Y.S.2d at 522-23.
¶ 52        Here, defendant’s threat to kill Nilsen and Kasavich was certainly
       not made in reliance on the confidences of his marriage. It is evident
       that defendant intended Nilsen to reveal the threat to Kasavich. Also,
       it is the type of communication that Nilsen might have revealed to
       one of her family members, or even the police. See, e.g., Newell v.
       State, 49 So. 3d 66 (Miss. 2010) (defendant’s message left on wife’s
       cell phone in which he threatened to shoot her and her alleged lover
       not confidential for purpose of spousal privilege since wife would
       have communicated to lover or police). It is also evident, from the
       circumstances surrounding defendant’s threat, that it was not
       motivated by his reliance on the intimate, special trust, and affection
       of his marital relationship. The threat had no correlation to the mutual
       trust between defendant and Nilsen as husband and wife.
       Accordingly, we conclude that defendant’s threat made in April 2004
       to kill Nilsen and Kasavich was not confidential and, therefore, was
       not protected by the marital privilege.
¶ 53        For the foregoing reasons, we reverse the judgment of the
       appellate court and remand this cause to that court so it may address
       the other issues raised by defendant which were not previously
       considered.

¶ 54      Reversed and remanded.

¶ 55       JUSTICE THEIS, specially concurring:
¶ 56       The sole issue before this court is whether the marital
       communication privilege, as codified in section 115-16 of the Code
       of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-16 (West


                                        -15-
       2010)), applies to an April 2004 communication between defendant
       and his wife, Laura Nilsen, in which defendant threatened to kill
       Nilsen and the victim, Donald Kasavich. I join the majority opinion
       in holding that this threat, made two months before the victim was
       found dead, was not barred by the marital communication privilege
       because I agree that it did not constitute confidential communication.
¶ 57       My primary disagreement with the majority opinion is its analysis
       of what constitutes confidential marital communication. I am troubled
       by the majority’s reliance upon case law from foreign jurisdictions to
       carve out a new exception to Illinois’ marital privilege which is not
       found in our own statutory language and requires our trial courts to
       consider the health or status of a marital relationship at the time a
       communication occurred in order to determine whether it entails a
       confidential communication.
¶ 58       As in all cases of statutory interpretation, this court’s primary
       objective should be to ascertain and give effect to the legislature’s
       intent, keeping in mind that the best and most reliable indicator of
       that intent is the statutory language itself, given its plain and ordinary
       meaning. People v. Gutman, 2011 IL 110338, ¶ 12. In construing a
       statute in this way, we may not read into the statute exceptions,
       limitations, or conditions for which the legislature did not provide.
       People v. Dominguez, 2012 IL 111336, ¶ 16. Generally, a trial court’s
       ruling on evidentiary matters will not be reversed absent a clear abuse
       of discretion. People v. Hall, 195 Ill. 2d 1, 20 (2000). Where, as in
       this case, the question concerns purely statutory interpretation, a
       question of law, we apply de novo review. Id. at 21.
¶ 59       Illinois’ marital communication privilege, contained in section
       115-16 of the Code, provides, in relevant part:
                “Witness disqualification. ***
                    In criminal cases, husband and wife may testify for or
                against each other. Neither, however, may testify as to any
                communication or admission made by either of them to the
                other or as to any conversation between them during
                marriage, except in cases in which either is charged with an
                offense against the person or property of the other, in case of
                spouse abandonment, when the interests of their child or
                children or of any child or children in either spouse’s care,
                custody, or control are directly involved, when either is
                charged with or under investigation for [listing certain sex
                offenses] and the victim is a minor under 18 years of age in

                                         -16-
               either spouse’s care, custody, or control at the time of the
               offense, or as to matters in which either has acted as agent of
               the other.” 725 ILCS 5/115-16 (West 2010).
¶ 60       Consequently, under the plain language of the statute, the marital
       privilege in Illinois prohibits testimony as to any communication or
       admission by either spouse to the other or as to any conversation
       between them during the marriage unless one of the five specified
       exceptions apply. None of the exceptions apply to the communication
       of the threat made by defendant to Nilsen.
¶ 61       This court has long held, however, that the statutory marital
       privilege applies only when the communication from one spouse to
       another was intended to be of a confidential nature. See, e.g., People
       v. Palumbo, 5 Ill. 2d 409, 415 (1955). While the majority recognizes
       this point, it holds that “[n]o court in Illinois has yet defined what
       ‘confidential’ encompasses.” Supra ¶ 50. I disagree. This court’s own
       precedent has instructed on what confidential marital communication
       entails and should control our outcome today.
¶ 62       Our decision in Palumbo is the starting point for our
       interpretation of the statute relating to the admissibility of
       interspousal communication as applying solely to confidential
       communication. In Palumbo, we recognized that there is no specific
       language in the statute that the marital communication must be
       confidential in order for the privilege to apply. Palumbo, 5 Ill. 2d at
       415. We looked at the historical background of the statute and noted
       that under an earlier provision, the statute provided that a husband or
       wife may not testify to any admissions or conversations of the other,
       whether made by him to her or her to him, or by either to third
       persons. Id. After the statute was amended, the reference to third
       persons was omitted. Id. We interpreted the legislature’s intent in
       removing the statutory language referencing third persons as
       conforming to the common law privilege which had only covered
       confidential communication. Id. Following the examination of the
       statutory framework in Palumbo, we concluded that the conversation
       at issue was ineligible for protection under our marital privilege
       because it was not confidential as it took place in the presence of a
       third person who, according to the wife, was trying to purchase
       narcotics from the defendant who was her husband. Id. at 411, 415.
¶ 63       Thereafter, in Sanders, relying upon the framework this court
       established in Palumbo, we held that while there is a presumption that
       interspousal communications are intended to be confidential if, under

                                        -17-
       the circumstances in which the communication took place, it appears
       that confidentiality was not intended, the communication is not to be
       regarded as privileged. People v. Sanders, 99 Ill. 2d 262, 267 (1983).
       We reiterated that communications made in the presence of third
       persons are not regarded as privileged because they are not made in
       confidence. Id. at 267. We therefore found the conversation ineligible
       for protection under the statutory marital privilege because the
       presence of the couple’s 13-year-old son destroyed the confidential
       nature of the spousal communication during which the husband told
       his wife that he robbed the victim. Id. at 266, 269.
¶ 64        In the instant case, Nilsen testified the threat that defendant would
       kill her and the victim was made at the victim’s trailer, and the only
       reason defendant did not communicate directly with him that night
       was that his repeated knocks on the victim’s trailer door went
       unanswered. As the majority holds, it is evident from the
       circumstances that defendant made the threat with the intention of a
       third party, the victim, being made aware of it, presumably to
       discourage any further contact between Nilsen and Kasavich. Supra
       ¶ 52. Consequently, wholly consistent with our holdings in Palumbo
       and Sanders, the communication is not privileged because based upon
       the circumstances in which the threat was made by defendant,
       confidentiality was obviously not intended. Nothing more needs to be
       said in answering the sole issue before us.
¶ 65        The majority’s error in holding that no court in Illinois has
       instructed on what confidential marital communication encompasses
       results in its analysis becoming unhinged from our statute and
       creating a new exception to our marital privilege. Relying exclusively
       on case law from outside this state, the majority today holds that
       “[t]he privilege ‘covers only those private exchanges which “would
       not have been made but for the absolute confidence in, and induced
       by, the marital relationship” ’ and ‘ “prompted by the affection,
       confidence and loyalty engendered by such relationship.” ’ ” Supra
       ¶ 50 (quoting People v. D’Amato, 430 N.Y.S.2d 521, 522-23 (N.Y.
       Sup. Ct. 1980)).
¶ 66        I recognize the majority’s apparent desire in not wanting to extend
       the evidentiary privilege to marital relationships that at the time of a
       communication have seemingly broken down. Basing a holding on a
       desire for a particular outcome, however, would do considerable
       violence to our rules of statutory construction and decisionmaking
       principles. The majority opinion ignores the most basic tenet of


                                         -18-
       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


                                         -19-
       Nilsen and Kasavich. See supra ¶ 46. The majority acknowledges that
       defendant moved in a separate motion in limine to exclude, in
       pertinent part, the conduct that occurred in April 2004. Supra ¶ 46.
       This separate motion did not seek exclusion of this evidence based on
       the marital privilege but, rather, because such evidence constituted
       improper evidence of other crimes, wrongs, or acts (see People v.
       Kliner, 185 Ill. 2d 81, 146 (1998); see also Ill. R. Evid. 404(b) (eff.
       Jan. 1, 2011)), which is one of the issues that this court has now
       remanded to the appellate court to address (see supra ¶ 57).
¶ 70       I find no need to analyze whether it would be proper to exclude
       the evidence of defendant’s conduct under the marital privilege when
       that was not the basis put forth by defendant in his motion in limine
       for barring it. Defendant specifically challenged the admission of this
       evidence of other crimes, wrongs, or acts on appeal and it would be
       best left, in my estimation, to the appellate court to consider the issue
       as directed.
¶ 71       Accordingly, I cannot join the reasoning of the majority opinion.

¶ 72       JUSTICE KARMEIER joins in this special concurrence.




                                         -20-
