Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Robert J. Kiley, Jr., Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The principal issue raised by this appeal is the construction and application to be given to the Illinois statute which prohibits husband and wife from testifying in criminal trials as to any communication or admission made one to the other or as to any conversation between them (Ill. Rev. Stat. 1981, ch. 38, par. 155-1). More precisely, the question is whether the privilege established by the statute is destroyed when the communication, admission or conversation in question is in the presence of children of the spouses (including a child of one of the spouses who is not the child of defendant) who are old enough to understand the content of the conversation. A secondary issue is whether the plain error rule (87 Ill.2d R. 615) should be applied to the admission of testimony about two conversations between spouses which may not have occurred in the presence of children but where no objection was advanced when all that was said in them was repeated in a third conversation which took place a few hours later and concerning which testimony was admissible.
A murder conviction of the defendant, Robert Sanders, in a jury trial in the circuit court of Cook County based in part upon the testimony of his wife was reversed by the appellate court (111 Ill. App.3d 1). We allowed the State's petition for leave to appeal (87 Ill.2d R. 315(a)).
During pretrial discovery, the defense filed a motion in limine to prevent the defendant's wife, Beverly Sanders, from testifying about conversations she had with her husband, the defendant. Shortly after it was filed, the public defender's office, which had been representing the defendant, was replaced by other appointed counsel, who represented the defendant at trial. Defendant's new attorney did not seek a ruling on the motion in limine, and that motion was never ruled upon. Neither did defendant's attorney object at trial to the wife's testimony.
She testified to three conversations with her husband which implicated him in the murder of which he was convicted. In the first conversation, which occurred the day before the murder, she testified the defendant told her while one or more of her children was present that he was going to rob the murder victim. The second conversation occurred in their bedroom in the early morning hours of the next day. During this conversation, at which no one else was present, the defendant gave his wife a ring and a watch which the woman who lived with the murder victim identified at trial as the victim's. The third conversation took place later that day. The defendant told her, she testified, that he had robbed the murder victim after striking him with a brick and tying him up. He also told her that he got the watch and ring during the robbery. This conversation, she said, was in the presence of their children.
The State argues that communications between spouses are privileged only when intended to be confidential. In this case the State contends the confidentiality of the first and third conversations was destroyed by the presence of their children. It contends that the second conversation was not confidential because the defendant must have expected that his wife would display the watch and ring he gave her by wearing them in public, and that he did not therefore intend his act to be confidential. The defendant argues that the record does not clearly show that their children were in the immediate presence of his wife and himself in a position to hear their first and third conversations, and that during the second communication he acted in reliance upon the expectation that what transpired would be confidential.
The starting point for our decision is the interpretation given in People v. Palumbo (1955), 5 Ill.2d 409, to the statute relating to the admissibility of inter-spousal communications (Ill. Rev. Stat. 1981, ch. 38, par. 155-1). This court, in Palumbo, rejected the argument advanced by the defendant there that the statute covered all conversations between spouses, holding instead that the statutory privilege, like the similar common law privilege, applied only to conversations which were of a confidential character. The problem is to determine under what circumstances conversations between spouses are to be regarded as confidential in character. This court, in Palumbo, adopted the standards announced by the Supreme Court in Wolfle v. United States (1934), 291 U.S. 7, 14, 78 L.Ed. 617, 620, 54 S.Ct. 279, 280, a holding which the court 41 years later in Trammel v. United States (1980), 445 U.S. 40, 63 L.Ed.2d 186, 100 S.Ct. 906, said remained undisturbed, by adopting language from Wolfle which teaches the following: There is a presumption that inter-spousal communications are intended to be confidential. But if, because of the circumstances under which the communication took place, it appears that confidentiality was not intended, the communication is not to be regarded as privileged. In this regard, communications made in the presence of third persons are usually not regarded as privileged because they are not made in confidence. In Palumbo the communication testified to by the wife was regarded as not privileged because the entire conversation took place in the presence of a third person who, according to the wife, was trying to purchase narcotics from the husband, who was the defendant in the case.
We agree with the appellate court's conclusion that the evidence establishes that the third conversation took place in the presence of her sons, Robert who was 13, and two others who were 10 and 8 at the time. On cross-examination the wife repeated her direct testimony, which is quoted at length in the appellate court opinion, that the three children were present during the third conversation when the following exchange took place:
"Q. Did you know anything about Curtiss Lovelace?
A. Only what my husband had told me.
Q. You say he was bragging when he told you this?
Q. He wasn't nervous, ...