                             2018 IL App (2d) 170490 

                                  No. 2-17-0490

                          Opinion filed November 2, 2018 

______________________________________________________________________________

                                            IN THE


                             APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 16-CF-239
                                       )
MELODIE GLINIEWICZ,                    ) Honorable
                                       ) James K. Booras,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
       Justices Hutchinson and Burke concurred in the judgment and opinion.

                                          OPINION

¶1     In this appeal, the State argues that the circuit court of Lake County erred both in

granting defendant Melodie Gliniewicz’s motion in limine and in denying the State’s motion to

reopen the proofs. For the following reasons, we reverse the trial court’s order denying the

State’s motion to reopen the proofs and we remand this cause for further proceedings.

¶2                                    I. BACKGROUND

¶3     On January 27, 2016, a Lake County grand jury returned a six-count indictment charging

defendant with four counts of disbursing charitable funds without authority and for personal

benefit (225 ILCS 460/19 (West 2016)) and two counts of money laundering (720 ILCS 5/29B­

1(a)(1)(B)(i) (West 2016)). On March 9, 2016, the grand jury returned an indictment charging
2018 IL App (2d) 170490


defendant with four additional counts: one count of disbursing charitable funds without authority

and for personal benefit (225 ILCS 460/19 (West 2016)), one count of conspiracy (disbursing

charitable funds without authority and for personal benefit (720 ILCS 5/8-2(a) (West 2016); 225

ILCS 460/19 (West 2016)); and two counts of conspiracy (money laundering) (720 ILCS 5/8­

2(a), 29B-1(a)(1)(B)(i) (West 2016)). In the indictments, the State alleged that defendant’s

deceased husband, Charles Joseph Gliniewicz (Joe), participated in these offenses.

¶4     In its discovery answer, the State indicated that it would seek to admit electronic

communications (e-mail and text messages) between defendant and Joe that were recovered from

Joe’s cell phone. On January 30, 2017, defendant filed a motion in limine requesting that the

trial court bar the State from introducing any evidence of communications between her and Joe.

In her motion, defendant alleged that the State had disclosed numerous documents detailing

confidential communications between defendant and Joe, including e-mail and text messages.

Specifically, defendant claimed, “[t]hese confidential communications were obtained via grand

jury subpoena and without the knowledge or consent of defendant Melodie Gliniewicz.” 1

Defendant cited People v. Trzeciak, 2013 IL 114491, and section 115-16 of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/115-16 (West 2016) (witness disqualification)) for the

propositions that the martial-communication privilege has a long common-law history and was

recognized to “promote marital harmony and stability.” Defendant also noted that Illinois courts

have specifically rejected the “joint criminal enterprise exception” to the marital-communication

privilege, citing People v. Krankel, 105 Ill. App. 3d 988, 991 (1982). Defendant also argued that

the agency exception to the privilege, recognized in People v. Saunders, 288 Ill. App. 3d 523

       1
           Defendant later argued that the messages were found during the execution of a search

warrant on Joe’s cell phone.



                                              -2­
2018 IL App (2d) 170490


(1997), did not apply to the communications, because the indictments alleged only that defendant

and Joe were co-conspirators, and not that she was his agent.

¶5     In response, the State admitted that the communications at issue were made while

defendant and Joe were married. However, the State also asserted that section 115-16 of the

Code bars spousal testimony, not communications themselves. 725 ILCS 5/115-16 (West 2016).

The State contended that the admissibility of the communications must be analyzed under the

marital-communication privilege and not the spousal-testimonial privilege.       The State then

requested that the trial court recognize the joint-criminal-enterprise exception to the marital-

communication privilege, citing United States v. Espudo, No. 12-CR-236-IEG, 2013 WL

2252637 (S.D. Cal. May 22, 2013).

¶6     In reply, defendant claimed that the State “[drew] an inapt distinction between spousal

testimonial privilege and marital privilege.” Citing Trzeciak, 2013 IL 114491, ¶¶ 56-59 (Theis,

J., specially concurring), she noted that, in discussing the marital-communication privilege, our

supreme court frequently referred to section 115-16 of the Code. Defendant argued that the

marital-communication privilege applies to all forms of confidential spousal communications,

including electronic messages such as texts and e-mails.

¶7     On May 11, 2017, the trial court granted defendant’s motion and ordered that “[t]he State

shall not present any testimony or other evidence at trial concerning confidential

communications between defendant and her husband, without first obtaining the court’s

permission.”    The court also barred the State from mentioning any such “confidential

communications at trial” without the court’s permission. The order applied to “emails, text

messages, as well as any other confidential written communications between defendant and her

husband.”



                                              -3­
2018 IL App (2d) 170490


¶8     The State filed a motion to reconsider. In its motion, it argued that the “text messages are

admissible under the third-party exception,” citing People v. Simpson, 68 Ill. 2d 276, 280 (1977).

The motion contained a summary of the communications at issue, which the trial court ordered

redacted by agreement. During the hearing on the motion, the State argued that the e-mail and

text messages were “analogous to written communications which have been intercepted or

eavesdropped.” Defendant argued that it was improper for the State to argue a new theory in a

motion to reconsider. She claimed that the third-party exception did not apply in this case,

because there was “no loss, interception or mis-delivery.” Defendant acknowledged the holding

in Simpson that a “conscious action by the defendant” results in “waiver of the privilege.” See

id. at 281 (“ ‘a voluntary revelation by the holder [of the privilege] of the communication, or of a

material part, is a waiver’ ” (quoting McCormick’s Handbook of the Law of Evidence § 83, at

170 (Edward W. Cleary ed., 2d ed. 1972))). Defendant contended that she “has not taken any

action” to reveal these communications. She noted that the communications were revealed by

the State via a search warrant. She argued that, unlike in Simpson, “[h]ere there’s no allegation

that the defendant has revealed the content of the communication.” She claimed that the purpose

of the privilege “to promote free, frank and open communication” would be “essentially

meaningless” if the court were to adopt the State’s reasoning.

¶9     The trial court denied the State’s motion to reconsider, ruling that “[a]ll of these

communications are protected and thus they must not be disclosed.” The court agreed with

defendant that the third-party exception did not apply. It noted that there was no third party, loss,

or misdelivery. Finally, the court commented:




                                                -4­
2018 IL App (2d) 170490


               “And the third scenario where this would apply is as I indicated by the conscious

       waiver of the privilege, basically when someone communicates in the presence of a third

       party or one’s knowledge of [sic] a third party has received it.”

¶ 10   The State filed a certificate of impairment pursuant to People v. Young, 82 Ill. 2d 234

(1980), stating that the trial court’s order barring the communications substantially impaired its

ability to prosecute this case. The State filed its opening brief on February 14, 2018. Defendant

filed her response brief on March 21, 2018. In her response brief, citing People v. Gardner, 105

Ill. App. 3d 103 (1982), defendant acknowledged that “just like in Simpson, if the holder of a

privilege (i.e., the defendant) intentionally reveals those contents to a third person, he has

relinquished the privilege.” (Emphasis in original.) Defendant then said, “[h]owever, in this

matter, there is no evidence in the record of any such voluntary or intentional revelation by the

defendant, and therefore the State’s broad assertion does not apply to the case before this court.”

(Emphases added and omitted.)

¶ 11   Prior to filing its reply brief, the State filed an “Emergency Motion for a Remand to

Reopen Proofs.”     In the motion, the State alleged that it had received newly discovered

information from the assistant state’s attorney and chief of the criminal division, Jeff Pavletic.

The State asserted that on April 2, 2018, the Lake County State’s Attorney’s Office received an

e-mail from the attorney representing Fox Lake in a civil suit involving Joe’s pension. In the e­

mail, that attorney said that “defendant had signed a consent to search her phone (the subject of

defendant’s motion in limine re: marital privilege) on October 8, 2015.” The State alleged that

the e-mail did not include a copy of the consent form and that the State did not receive a copy of

it until April 16, 2018. The State also alleged that Joe’s cell phone containing the text messages

at issue “was purchased with charitable funds and is/was owned by Fox Lake.” This information



                                               -5­
2018 IL App (2d) 170490


was also new. The State attached a copy of the consent form. The form is a “Department of

Justice/Federal Bureau of Investigation” consent-to-search form, signed by defendant on October

8, 2015. The form contains a description of the phone and the phone number. The form

authorizes a search of the phone and contains the following printed acknowledgment:

                 “1. I have been asked by Special Agent of the Federal Bureau of Investigation to

        permit a complete search of: Samsung Galaxy S5 847-***-****

        ***

                 2. I have been advised of my right to refuse consent.

                 3. I give this permission voluntarily.

                 4. I authorize these agents to take any items which they determine may be related

        to their investigation.”

¶ 12    Attached to the consent form is a document listing the backup password for defendant’s

cell phone. The State also attached “page KL 09263” 2 from its discovery answer. The document

is a “Lake County Major Crimes Task Force” investigative report. That report documented a

conversation between defendant and Detective Andrew Jones. In the report, Jones wrote, “[w]e

then asked her about a message between her and Joe regarding the hiding of money.” Jones then

said, “I then advised [defendant] that we would also like to review the information contained in

her phone. [Defendant] advised that she would like to speak to her attorney first and we allowed

her to do so.” Jones went on to state that, while he was following defendant to her home,

defendant sent him a text saying that he could take the phone.



        2
            “KL” are the initials of Kenneth LaRue, the assistant state’s attorney assigned to this

case.



                                                  -6­
2018 IL App (2d) 170490


¶ 13   Jones reported that, at the house, another investigator “presented [defendant] with a

consent to search for the phone and [defendant] signed it.” Jones told defendant that the phone

would be returned as soon as the forensic analysis was complete. Jones reported that defendant

gave the investigators access to the garage to search for “items of interest, which were removed.”

¶ 14   Defendant filed a response to the State’s emergency motion for a remand.               In her

response, she argued that the information concerning the consent form was not “newly

discovered,” because, according to Jones’s report, the State knew of the consent form and knew

that the investigators physically took possession of her phone on October 8, 2015. Defendant

characterized the State’s motion as “false and misleading.” Defendant contended that the State

failed to bring this information to the attention of the trial court and “may have violated” Rule

3.3(a)(1) of the Illinois Rules of Professional Conduct (Ill. R. Prof’l Conduct (2010) R. 3.3(a)(1)

(eff. Jan. 1, 2010) (a lawyer shall not knowingly make a false statement of fact to a tribunal)).

¶ 15   This court granted in part the State’s motion for a remand to reopen the proofs, stating

that “[t]he case is remanded for the limited purpose of the trial court’s consideration of the

State’s request to reopen the proofs on defendant’s motion in limine regarding marital

communications and other necessary proceedings pertaining to that motion.”

¶ 16   On remand, the State filed a motion to reopen the proofs. In the motion, the State

acknowledged that it had reports referring to the signed consent form but that its efforts to locate

the form had been unsuccessful. Without the form, the State could not “have raised it to the trial

court in good faith.”

¶ 17   Defendant filed a response to the State’s motion to reopen the proofs. In her response,

she argued that the State had a duty to learn of any evidence known to the police, citing People v.

Carballido, 2015 IL App (2d) 140760, ¶ 75, and that the State could not provide “a reasonable



                                                -7­
2018 IL App (2d) 170490


excuse for failing to submit this consent form to the trial court prior to the hearing on the motion

in limine.”   Defendant also claimed that she would be prejudiced by the delay.             Finally,

defendant argued that the consent form had no relevance to the issue of the marital-

communication privilege “because the State cannot produce any evidence as to any specific text

message between her and her husband that were present on her phone.”

¶ 18   Both parties cited Dowd & Dowd, Ltd. v. Gleason, 352 Ill. App. 3d 365, 389 (2004),

which set forth three factors that the trial court should consider in deciding to whether to reopen

the evidence: “whether the moving party has provided a reasonable excuse for failing to submit

the additional evidence during trial, whether granting the motion would result in surprise or

unfair prejudice to the opposing party, and [whether] the evidence is of the utmost importance to

the movant’s case.” (Emphasis added.)

¶ 19   At the hearing on the State’s motion to reopen the proofs, the State argued that its excuse

for failing to raise the consent-form issue was reasonable, though not perfect.          The State

contended that the fact that it did not have form until April 2018 was unrebutted. It maintained

that it would have been “unethical” to argue that defendant signed a consent form “if we couldn’t

even produce the consent form.” The trial court asked the State why it could not locate the form,

and the State responded, “[w]e’ve searched” and “[w]e don’t have the [contents of the] phone

too, which was supposedly done. We don’t have that information either.” The State said that it

knew what was in defendant’s phone, “based upon the defendant’s statements.” It explained that

defendant had said, “[w]ell what are you guys looking at? You will find the same stuff as my

husband’s phone.” The State maintained that, by her statements and signing the consent form,

“she is waiving her marital privilege.” The trial court posed a hypothetical to the State and asked

whether a wife who generally consents to a search of her house waives the marital­



                                               -8­
2018 IL App (2d) 170490


communication privilege to “letters written from one spouse to another.” In response, the State

said, “if she [was] giving voluntary consent for officers to enter her home and seize whatever

they feel relevant *** I would say yes.” It then added, “[t]hat’s not the situation, judge; the

situation is where she specifically gave the State the ability to look at text messages on her

phone.” The State claimed that, whether it searched the phone or not, “[defendant] is still

exposing those [messages] to a third party.”

¶ 20   The State argued that granting the motion to reopen the proofs would not result in any

surprise or unfair prejudice. It noted that the only prejudice claimed by defendant “is additional

time, and that’s speculative and elusive, judge.”

¶ 21   The State next argued that the third Dowd factor, whether the evidence is of the utmost

importance to the State’s case, weighed in its favor. Specifically, by signing the consent form

and exposing her phone to a third party for review, defendant waived her marital-communication

privilege. The State maintained that, if the court did not reopen the proofs, the court was “not

going to have all of the evidence that is available to resolve this case.” The State stressed that

“perhaps more important” is that, when a case is not before a jury, greater liberty should be

allowed in reopening the proofs.

¶ 22   Defense counsel argued that the State could not provide a reasonable excuse for not

obtaining the consent form, asking rhetorically, “[h]ow can the State tell this court that the

State’s Attorney’s Office of Lake County can’t get an FBI consent form from an FBI officer that

took the interview but the Village of Fox Lake attorney can?” Counsel argued that there was “no

way they made any reasonable attempts to locate the form” and added, “I don’t know whether

they just missed it or whether they glossed over it.” Counsel again cited Carballido, 2015 IL

App (2d) 140760, ¶ 75, for the propositions that the State had a duty to learn of evidence known



                                               -9­
2018 IL App (2d) 170490


to the police and that “even if the police fail to inform the prosecutor that evidence exists, the

prosecution remains accountable for that omission.” The trial court asked counsel, “[h]ow about

in the interest of justice that I should let them, even though they made the error and not brought it

forward, so they should be able to at least argue that there is a consent—to the search of the—of

the defendant’s phone?” Counsel responded, “Dowd” and the “Carballido case; 2015 IL App

(2d) 140760; judge, that’s the law.” As to unfair prejudice, counsel pointed out that the motion

to dismiss was still pending and “we’ve never had a realistic trial date.” Counsel noted that “the

case has been pending in the appellate court for a year.” He said that defendant’s life was on

hold and that, if the trial court granted the motion, the case would be unnecessarily delayed,

“without the fault of the defendant.”

¶ 23   Defense counsel argued that, as to the third Dowd factor, the evidence could not be of the

“utmost importance,” because it has no relevance. Counsel said, “[t]here is nothing in the police

reports, in the 12,000 pages of discovery; there is not [sic] mention of what they found on her

phone.” Counsel stated that no one knew what defendant meant when she told the police that

they would find “the same stuff on my phone that you are [sic] on his phone.” In answer to the

trial court’s question, counsel contended that a waiver of the marital-communication privilege

must be specific and that defendant did not say “I hereby consent for you to take all of my

communications with my deceased husband.” Counsel said that, even though defendant said

“[y]ou will probably find the same stuff[,] they don’t know what was in her mind.” Counsel then

noted that defendant said she felt threatened during the interview. According to counsel, the

police not only threatened to get a search warrant for defendant’s phone, they actually got a

search warrant but never executed it. Counsel said, “that can’t—that can’t be her knowingly and

voluntarily waiving the contents of her marital privilege.”



                                               - 10 ­
2018 IL App (2d) 170490


¶ 24   During rebuttal argument, the State pointed out that the search warrant was a state

warrant, signed the day before defendant executed the consent form. The State confirmed that

the warrant was never executed. It maintained that it made “exhaustive efforts” to locate the

consent form.    The State noted that the investigation involved several investigators from

“federal, state and local agencies.” It was a “death investigation that spun out into something

else.” The State argued that the court should consider the interest of justice in allowing all

relevant evidence from both sides and that by denying the motion the court cannot “magically fix

the year that’s gone by so far.” As to defendant’s relevance argument, the State said, “[w]e

know exactly what was on her phone; at least part of it; because it was on her spouse’s phone.”

Regarding defendant’s voluntariness argument, the State did not object that defendant failed to

plead that her consent was involuntary. Instead the State commented, “[w]e never told her that

we have what’s on her spouse’s phone. This was a free and voluntary—again, this is for the next

step; but it is of the utmost importance to the movant’s case, judge, in that she voluntarily

exposed not just what was on her phone, but what was on Joe’s phone.”

¶ 25   In surrebuttal, defense counsel noted that the State could have asked the trial court to

reconsider its ruling at any time, without taking an interlocutory appeal.          Counsel also

commented that he never heard “Mr. LaRue say, well, we went and asked the FBI for it.” LaRue

interjected and said, “I’ve called the agent several times, who is now retired.”

¶ 26   The trial court found that the State’s “reasonable excuse” argument was not convincing.

The court also found that the State had knowledge and was charged with having knowledge of

the consent form “even though, as I said, I don’t know to what extent that consent form would

assist them in any way in their case.” The court stated that any delay results in unfair prejudice

because “witnesses disappear, retire, they are gone.” As to the third Dowd factor, the court said,



                                               - 11 ­
   2018 IL App (2d) 170490


   “[i]s the evidence of the utmost importance? I submit, folks, it’s not because it doesn’t exist. It

   hasn’t been analyzed.” The court said that the issue was not ripe, because the phone had not

   been analyzed and no one knew what was in it. Regarding defendant’s comment to the police

   that they would find on her phone the same things that were on Joe’s phone, the court said, “I

   don’t know what she meant by that.” With respect to the issue of waiver, the court said, “I don’t

   know to what extent that waiver, if there is a waiver[,] the consent or waiver applies to the

   marital privilege. That’s something for someone else to determine and make that call at a later

   junction. Therefore, I am saying at this point that the issue is not ripe.” The court denied the

   State’s motion to reopen the proofs.

   ¶ 27    We ordered that the State supplement the record on appeal with the report of proceedings

   from the hearing on the motion, along with any exhibits presented to the trial court. We denied

   the State’s motion to file an amended motion and we also denied defendant’s motion for

   sanctions. Further, we ordered that the State file its reply brief by July 3, 2018, and address the

   issue of whether the trial court erred when it denied the State’s motion to reopen the proofs.

   Defendant was given until July 24, 2018, to file her surreply to the State’s reply brief. Both

   parties timely filed their briefs.

¶ 28                                         II. ANALYSIS

¶ 29       A. Motion in Limine

   ¶ 30    Initially, on defendant’s motion, we strike the first two paragraphs of the State’s

   statement of facts, for failure to comply with Illinois Supreme Court Rule 341(h)(6) (eff. May

   25, 2018) (the statement of facts shall contain the facts necessary to an understanding of the case,

   stated accurately and fairly without argument or comment, and with appropriate reference to the




                                                  - 12 ­
2018 IL App (2d) 170490


pages of the record on appeal). Our review is not hindered by the State’s error; therefore, we

will address its arguments.

¶ 31   Defendant’s motion in limine sought to bar evidence of communications between her and

Joe, specifically those that were recovered from his cell phone and were related to their alleged

criminal conduct.

¶ 32   A motion in limine permits a party to obtain a pretrial order excluding inadmissible

evidence and protecting the moving party from the prejudicial impact of any mention of the

evidence in front of the jury. Reidelberger v. Highland Body Shop, Inc., 83 Ill. 2d 545, 549

(1981). Because the grant of a motion in limine is a powerful weapon, “courts must be certain

that such action will not unduly restrict the opposing party’s presentation of its case.” Id. at 550.

A motion in limine should be as specific as possible and set out all relevant facts so that the trial

court can properly assess the relevance and admissibility of the evidence at issue as well as any

potential unfair prejudice. See People v. Stevenson, 2014 IL App (4th) 130313, ¶ 27 (the motion

must be specific and allow the court and the parties to understand what evidence is at issue).

Where there is no live testimony, the trial court “must rely upon counsel’s representations or

offers of proof to determine what the context for the evidentiary ruling will likely be at trial.”

People v. Drum, 321 Ill. App. 3d 1005, 1008 (2001). The trial court has the discretion not to

address the evidentiary issue and may wait for the issue to arise at trial. Id. It is equally clear

that a pretrial ruling on a motion in limine “is always subject to reconsideration during trial.”

(Emphasis added.) Id. This is because the trial court “rules on it in a vacuum, before hearing the

full evidence at trial that may justify admission or require exclusion.” Cunningham v. Millers

General Insurance Co., 227 Ill. App. 3d 201, 205 (1992). Generally, a trial court’s ruling on a

motion in limine will not be reversed absent a clear abuse of discretion. Drum, 321 Ill. App. 3d



                                               - 13 ­
2018 IL App (2d) 170490


at 1009. An abuse of discretion exists where the trial court’s decision is arbitrary, fanciful, or

unreasonable such that no reasonable person would take the view adopted by the trial court.

People v. Ramsey, 239 Ill. 2d 342, 429 (2010). However, we review a trial court’s decision

regarding privilege de novo. King Koil Licensing Co. v. Harris, 2017 IL App (1st) 161019, ¶ 78.

Likewise, when the facts are not in dispute and credibility is not implicated, the question of

whether a waiver has taken place is a legal one, and no deference is owed to the trial court’s

decision. Brunton v. Kruger, 2015 IL 117663, ¶ 72.

¶ 33   The State argues that the trial court misapplied section 115-16 of the Code (725 ILCS

5/115-16 (West 2016)), because the third-party exception to the privilege applies. We disagree.

¶ 34   Section 115-16 sets out the marital-communication privilege. Trzeciak, 2013 IL 114491,

¶ 40. “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.” Id. ¶ 44. The

burden of establishing that a privilege applies is on the party claiming it, who must establish all

of the necessary elements. People v. McNeal, 175 Ill. 2d 335, 359 (1997).

¶ 35   In its response to defendant’s motion in limine, the State conceded that “[a]ny text

messages and emails exchanged between the defendant and Charles Joseph Gliniewicz contain

information privately disclosed between husband and wife in the marital relationship.” Thus,

although the text messages and e-mails at issue are not in the record, the State admits that the

communications were privileged absent some exception to or waiver of the privilege.

¶ 36   The State argues that the third-party exception applies to the communications. The State

notes that in Simpson, 68 Ill. 2d at 280, our supreme court said:




                                               - 14 ­
2018 IL App (2d) 170490


               “Communications in the presence and hearing of a third party are generally not

       considered to be confidential communications within that privilege. (People v. Palumbo

       (1955), 5 Ill. 2d 409, 414-15.) It is likewise apparent that one in whose presence a

       communication between spouses is made may testify to that conversation, even though

       the witness overheard the conversation by eavesdropping. Similarly, one may testify who

       learns the contents of a written communication from one spouse to another by

       interception, or through loss or misdelivery by the custodian. McCormick, Evidence sec.

       82, at 167 (2d ed. 1972).

¶ 37   In Simpson, an assistant state’s attorney testified that he was present when two detectives

questioned the defendant’s wife. The defendant was also present for the interview. The wife

was asked to “[t]ell us what he told you.” (Internal quotation marks omitted.) Id. at 279. She

responded that the defendant “said that he shot Gwen.” Id. The defendant spoke up and said,

“[y]es, but I told you later I was lying.” (Emphasis and internal quotation marks omitted.) Id.

The supreme court held that the defendant’s public reply to his wife’s statement rendered

admissible the account from the interview. Id. at 281. The court said that the defendant did not

have to make such an acknowledgement and could have preserved the privilege by remaining

silent, “despite the wife’s revelation of that conversation to the police.” Id. at 281-82. We agree

with defendant that the third-party exception does not apply here. Unlike in Simpson, the

communications in this case were found through the execution of a search warrant, not by a third

party listening to a conversation.       Likewise, the communications were not found by

“interception, or through loss or misdelivery by the custodian.” Id.at 280.

¶ 38   We also reject the State’s argument that we should adopt a joint-criminal-enterprise

exception to the marital-communication privilege.       The State points us to several foreign



                                              - 15 ­
2018 IL App (2d) 170490


jurisdictions with statutes similar to ours where reviewing courts recognized such an exception.

But Illinois has never adopted it. See Saunders, 288 Ill. App. 3d at 526; Krankel, 105 Ill. App.

3d at 991. The trial court was bound by the holdings in these cases. Although we are not

similarly bound by these decisions, we presume that the General Assembly is aware of them.

Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445, 458 (1997) (“In amending a statute, the

legislature is presumed to have been aware of judicial decisions interpreting the statute and to

have acted with knowledge.”). We note that section 115-16 has been amended six times since

Krankel was decided. Our supreme court has made it clear that changes to the statute are a

matter for the legislature. People v. Palumbo, 5 Ill. 2d 409, 413-14 (1955); People v. Kendall,

357 Ill. 448, 456 (1934).      Any expansion of the exceptions to the marital-communication

privilege is a matter of public policy, committed to the sound judgment of the legislature.

¶ 39   Similarly, we reject the State’s invitation to expand upon the “agency” exception

recognized in Saunders and People v. Hommerson, 399 Ill. App. 3d 405 (2010). In both of those

cases, the wives were acting solely as agents for their husbands. In this case, the indictments

alleged that defendant and Joe were coconspirators. We find no error in the trial court’s granting

defendant’s motion in limine, which by law and the court’s written order was subject to

reconsideration.

¶ 40                               B. Motion to Reopen Proofs

¶ 41   Next, the State argues that the trial court abused its discretion when it denied the State’s

motion to reopen the proofs.

¶ 42   A trial court’s ruling on a motion to reopen proofs is reviewed for an abuse of discretion.

In re Marriage of Suarez, 148 Ill. App. 3d 849, 858 (1986). “In rendering its decision, the trial

court should consider whether the moving party has provided a reasonable excuse for failing to



                                              - 16 ­
2018 IL App (2d) 170490


submit the additional evidence during trial, whether granting the motion would result in surprise

or unfair prejudice to the opposing party, and [whether] the evidence is of the utmost importance

to the movant’s case.” Dowd, 352 Ill. App. 3d at 389 (citing In re Marriage of Weinstein, 128

Ill. App. 3d 234, 248-49 (1984)). Greater liberty should be allowed when the case is tried

without a jury. In re Estate of Bennoon, 2014 IL App (1st) 122224, ¶ 55.

¶ 43   First, this case has not been tried. The ruling in question was a pretrial evidentiary ruling

on a motion in limine and there was no live testimony. The trial court had the discretion to order

an evidentiary hearing or, in the alternative, wait until the evidentiary issue arose at trial. The

trial court’s ruling was based solely on the representations of counsel and was subject to

reconsideration at any time up to and including trial. It is therefore questionable whether the

Dowd factors apply to motions in limine. At oral argument, both parties acknowledged that the

Dowd factors should not ordinarily apply to motions in limine. However, since the trial court

considered the Dowd factors in ruling on the State’s motion to reopen the proofs, we will

examine its reasoning in that context.

¶ 44   As to the first factor, the trial court found that the State’s excuse for failing to raise the

consent-form issue was not convincing. However, we recognize that defendant’s motion in

limine claimed that defendant had not consented. At the hearing on the motion to reopen the

proofs, defense counsel argued that defendant had not taken any action to reveal the

communications at issue. In her response brief before this court, defendant states that she did

nothing to lose the confidential nature of the communications. Defendant’s brief states that

“there is no evidence in the record of any such voluntary or intentional revelation” of the

communications. An attorney’s representation of the facts should be as accurate as can be

determined by a reasonable investigation of the facts. Whether intentional or not, counsel’s



                                               - 17 ­
2018 IL App (2d) 170490


representations conflict with the State’s account in its motion to reopen the proofs. During

argument on the motion to reopen the proofs, counsel suggested that the State “may have just

missed [the consent form] or glossed over it.” The State argued that it would have been

unethical to argue that defendant consented to the search of her cell phone if the State could not

produce the consent form. Although the trial court found the excuse unconvincing, it must be

remembered that defendant’s position was that she never took any action to waive the marital-

communication privilege. At best, the reasonable-excuse factor is neutral. The State might very

well have been skeptical about raising the waiver/consent issue without documentary proof.

¶ 45   Even if the State’s excuse was not reasonable, that factor did not justify denying the

motion to reopen the proofs. As noted, greater liberty should be allowed when a case is being

tried without a jury. Bennoon, 2014 IL App (1st) 122224, ¶ 55. We are also troubled by defense

counsel’s reliance on Carballido, 2015 IL App (2d) 140760, as justification for arguing that the

State failed to provide a reasonable excuse. Carballido involved an alleged Brady violation

when the State failed to produce an investigatory officer’s field notes. We reversed the trial

court’s third-stage denial of the defendant’s postconviction petition. We were concerned with

the fairness of the defendant’s trial. We stated that, “[i]in the context of a due-process claim, the

State is accountable for the actions of police officers.” Id. ¶ 75. At a hearing on a motion

in limine, however, the concern should be the completeness and accuracy of the information that

aids the trial court in making its ruling. In this case, the trial court essentially imposed a

discovery sanction where there was no discovery violation. In doing so, the trial court abused its

discretion.

¶ 46   The trial court also erred in finding that the State had knowledge and was charged with

having knowledge of the consent form. In People v. Thompkins, 121 Ill. 2d 401 (1988), the



                                               - 18 ­
2018 IL App (2d) 170490


supreme court held that the knowledge of interview notes prepared by a Birmingham, Alabama,

police officer could not be imputed to the State. The court looked to the language of Illinois

Supreme Court Rule 412(g) (eff. July 1, 1982) and said that, since Alabama officials “are not

subject to the jurisdiction of the Illinois courts,” “the People had no discovery obligation under

Rule 412 to procure and turn over to the defense the alleged memorandum.” Thompkins, 121 Ill.

2d at 427. As in our case, the record in Thompkins showed that the assistant state’s attorney

made diligent attempts to obtain the material. Id. Here, the agency in possession of the consent

form was the FBI, which is not subject to the jurisdiction of Illinois courts. A state court lacks

“jurisdiction to compel the FBI to produce documents subpoenaed by a defendant in the course

of a state criminal prosecution.” United States v. Williams, 170 F.3d 431, 433 (4th Cir. 1999);

see also Kasi v. Angelone, 300 F.3d 487, 504 (4th Cir. 2002).

¶ 47   The second Dowd factor is surprise or unfair prejudice. Defendant does not claim

surprise.   She argues simply that she is prejudiced by the time that this appeal is taking.

Defendant forgets that this appeal is the result of her motion in limine. The State had a right to

appeal the trial court’s ruling. People v. Drum, 194 Ill. 2d 485, 490 (2000). Defendant cites no

authority for her prejudice argument. As such, defendant’s argument is forfeited. Ill. S. Ct. R.

341(h)(7) (eff. May 25, 2018).

¶ 48   As to the third factor, the State argues that the e-mail and text messages between

defendant and Joe are of the utmost importance to the State’s case. We agree. The messages

might reveal correspondence between coconspirators engaged in financial crimes. The State

argues that without this evidence its case will be at least substantially impaired. We see no

reason to doubt that assessment. See People v. Keith, 148 Ill. 2d 32, 40 (1992) (reviewing courts

rely on the good-faith evaluation by the prosecutor of the impact of a suppression order). We



                                              - 19 ­
2018 IL App (2d) 170490


reject defendant’s argument that the consent form and the circumstances surrounding it are

irrelevant “because the State cannot produce any evidence as to what was contained on

defendant’s cell phone relating to any specific text messages between her and her husband.”

Defendant essentially parrots the trial court’s comment that the evidence “doesn’t exist.” But

defendant’s motion in limine challenged the admissibility of communications between defendant

and Joe, recovered from Joe’s phone and tendered in discovery. The State intends to introduce

that evidence at trial by laying a proper foundation.

¶ 49   At oral argument, defense counsel acknowledged that, in defendant’s conversation with

the police regarding consent to search her cell phone, defendant said something to the effect of,

“[y]ou’ll find the same stuff on my phone as on Joe’s phone.” However, counsel argued that any

waiver of the marital-communication privilege must be specific, and, since no one knew what

was on defendant’s phone, the court could not find that a waiver had occurred. We disagree.

The holder of a privilege may waive it, explicitly or implicitly. Hommerson, 399 Ill. App. 3d at

413-14 (defendant waived privilege by failing to invoke it during his wife’s testimony).

¶ 50   We hold that the State has, by its representations to the trial court and by the exhibits,

made a prima facie case of waiver. Defendant concedes that “a voluntary revelation by the

holder of the privilege of the communication, or of a material part, is a waiver of that privilege,”

citing Simpson, 68 Ill. 2d at 281-82. According to the documents we have reviewed, defendant

knew that the police wanted to review the messages between her and Joe on her cell phone.

Jones asked defendant “about a message between she and Joe regarding the hiding of money.”

Jones told defendant that “[w]e would like to review the information contained in her phone.”

Presumably, after speaking to her attorney, defendant gave the police her phone and signed a

written consent form. As the State represented, defendant volunteered that the information on



                                               - 20 ­
2018 IL App (2d) 170490


her phone and Joe’s phone would be the same. The use of cell phones to transmit and store

electronic communications in the form of e-mail and text messages is a matter of common

knowledge. People v. Tassone, 41 Ill. 2d 7, 12 (1968) (courts will take judicial notice of that

which everyone knows to be true). The trial court commented that it did not know what

defendant meant when defendant said, “[y]ou are going to see the same as my husband’s.” The

State’s position is that, in the context of the conversation with the police and the consent to

search, defendant was exposing her communications with Joe to law enforcement and therefore

waiving the marital-communication privilege. At the hearing on the State’s motion to reopen the

proofs, defense counsel argued that defendant’s consent was not voluntary. Thus, the facts

regarding defendant’s waiver/consent are contested. The trial court may resolve the issue at the

reopened hearing on the motion in limine.

¶ 51                                  III. CONCLUSION

¶ 52   The trial court did not err in granting defendant’s motion in limine regarding the marital-

communication privilege. However, the trial court erred in denying the State’s motion to reopen

the proofs on the motion. The order denying the motion to reopen the proofs is reversed, and this

cause is remanded for further proceedings.

¶ 53   Reversed and remanded.




                                             - 21 ­
