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09/24/87 the People of the State of v. Dwight H. Doss

September 24, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DWIGHT H. DOSS, DEFENDANT-APPELLANT



Before prior testimony can be admitted as an exception to the hearsay rule there must be proof that in the prior proceedings there was an identity of the parties and the issues. (McInturff v. Insurance Co. of North America (1910), 248 Ill. 92, 93 N.E. 369.) However, the strictness of the rule set forth in McInturff has been eroded since that decision (see Laboy v. Industrial Com. (1978), 74 Ill. 2d 18, 383 N.E.2d 954; People v. Jackson (1968), 41 Ill. 2d 102, 242 N.E.2d 160; George v. Moorhead (1948), 399 Ill. 497, 78 N.E.2d 216; M. Graham, Cleary & Graham's Handbook of Illinois Evidence secs. 804.2 through 804.5 (4th ed. 1984)), so that now all that is required is the issues be substantially identical.

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

514 N.E.2d 502, 161 Ill. App. 3d 258, 112 Ill. Dec. 839

Appeal from the Circuit Court of Piatt County; the Hon. Robert J. Steigmann, Judge, presiding. 1987.IL.1422

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Defendant, Dwight H. Doss, was indicted for perjury by a grand jury in Piatt County. The charges arose out of two separate incidents where defendant testified in Piatt County circuit court regarding the circumstances surrounding his acquisition of farmland from one of his clients. The defendant waived a jury trial and the trial court, after hearing evidence, dismissed one count and found defendant guilty on the remaining two counts. Defendant was sentenced to two years in the penitentiary. Defendant raises several issues on appeal involving the pleadings, evidentiary rulings, reasonable doubt and the reasonableness of his sentence. We reverse and remand for a new trial based upon error in the court's finding of the existence of an attorney-client privilege and the subsequent refusal of the court to order the disclosure to defendant of transcribed statements given by defendant's former clients to their new attorney.

On February 9, 1983, a three-count indictment for perjury was returned by the grand jury of Piatt County against defendant. All three counts of the indictment related to the purchase of 80 acres of farmland by defendant from Eugene and Nancy Bloomingdale. Eugene Bloomingdale's aunt died in April of 1973 leaving her entire estate to him and naming him executor. Bloomingdale retained defendant, a licensed attorney, to handle the probate of the estate. In November of 1974, approximately 1 1/2 years after the estate was opened, the primary asset of the estate, 80 acres of farmland, came into the possession and ownership of defendant. Defendant claimed the transfer was in accordance with a written contract knowingly executed after extensive negotiations and the representation of Bloomingdale by independent counsel. Bloomingdale asserted no such transaction took place and that documentation in support of the sale was fraudulent.

In 1980, an investigation of the transaction was conducted by a special prosecutor and by the guardian appointed for Bloomingdale as a disabled adult. Defendant testified before a grand jury called by the special prosecutor and before a circuit court Judge pursuant to a citation to discover assets served upon him by Bloomingdale's guardian. At these proceedings defendant explained how he came to own the 80 acres. It was these explanations which the 1983 grand jury found to be perjury.

On April 24, 1986, defendant filed a motion in limine requesting a pretrial order requiring the production of transcribed interviews conducted of the Bloomingdales by Kenneth Baughman, their new attorney. The statements had been taken in the presence of third parties. Prior to the filing of the motion in limine, both the defendant and the State had caused subpoenas duces tecum to be served on Baughman requiring the production of the statements. Baughman filed a petition to quash the subpoenas alleging in substance that the statements were privileged under the attorney-client privilege.

The trial court heard evidence and arguments on the motion and petition on April 29, 1986. Baughman testified as follows: He was a practicing attorney and on January 2, 1980, he met in his office with Mr. and Mrs. Bloomingdale, Jacquelyn Morris and Shirley Durbin. He did not recall who had called to make the appointment nor did he know beforehand the purpose of the meeting or for whom he might be rendering legal assistance. His understanding at the time was that both Mrs. Morris and Mrs. Durbin played a role in the Bloomingdales' affairs and were concerned about the Bloomingdales' continuing relationship with defendant. All four persons solicited legal advice as to what recourse the Bloomingdales might have against defendant. Subsequently, Mrs. Morris came to serve as guardian of Bloomingdale's estate and in that capacity retained Baughman to file a civil suit against defendant. Mrs. Durbin never has been a client of Baughman and was present only to provide moral support and encouragement to the Bloomingdales in obtaining legal advice. Finally, Baughman stated Bloomingdale was of below average intelligence and needed the assistance of others to obtain legal services.

Mrs. Durbin also testified at the hearing. She testified she had known Mr. Bloomingdale since he took up residence in Bement, Illinois, where she also resided. She recalled being in Baughman's office at the conference with the Bloomingdales along with Mrs. Morris. During the conference the only comment she made was that the Bloomingdales "would have to get away from [defendant]." She testified she did not seek any legal advice from Baughman nor did she receive any. Finally, she stated she attended the meeting at the request of the Bloomingdales to provide moral support.

At the Conclusion of testimony and arguments by counsel, the trial court granted the petition to quash the subpoenas and denied the motion in limine ruling that Durbin and Morris were agents of the Bloomingdales and as such their presence did not constitute a waiver of the attorney-client privilege. Therefore, the transcribed interviews were not subject to discovery.

The disputed communications were important to defendant's case, as Mrs. Bloomingdale testified at the civil trial which was held prior to the criminal proceedings in this case that at the first meeting with Baughman she was shown a copy of the contract to sell the farm entered into between herself and her husband and defendant for the first time. Baughman testified in the civil proceedings, too, but stated he had no such document at their first meeting on January 2, 1980. Defendant contends a copy of this contract was given to the Bloomingdales on the day it was signed, March 4, 1974. Defendant argues that if a copy of the contract was at the first meeting between Baughman and the Bloomingdales and Baughman denies that it came from him, it ...


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