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May 5, 1994


Appeal from the Circuit Court of Du Page County. No. 91-CF-2175. Honorable Edward W. Kowal, Judge, Presiding.

Bowman, Doyle, Quetsch

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, James J. Kelly, was charged by indictment with first degree murder (counts I, III, IV, V and VI) (Ill. Rev. Stat. 1989, ch. 38, pars. 9-1(a)(1), (a)(3) (now codified, as amended, at 720 ILCS 5/9-1(a)(1), (a)(3) (West 1992))), solicitation of murder for hire (count II) (Ill. Rev. Stat. 1989, ch. 38, par. 8-1.2 (now 720 ILCS 5/8-1.2 (West 1992))), home invasion (count VII) (Ill. Rev. Stat. 1989, ch. 38, par. 12-11(a)(2) (now 720 ILCS 5/12-11(a)(2) (West 1992))), and residential burglary (count VIII) (Ill. Rev. Stat. 1989, ch. 38, par. 19-3 (now 720 ILCS 5/19-3 (West 1992))) stemming from the murder of the defendant's ex-wife, Jayne Kelly, in her home in Naperville. The solicitation charge was severed for a separate trial. Pursuant to the trial court's pretrial rulings suppressing evidence, the State timely filed this appeal. On appeal, the State asserts that: (1) the trial court erred in suppressing prior testimony of Jayne Kelly; (2) the trial court erred in suppressing three tape-recorded conversations which the defendant had with the two men he is charged with having previously solicited to murder his ex-wife, all three of which occurred after the murder; (3) the trial court erred in suppressing evidence of the murder of Jayne Kelly in the defendant's trial for solicitation. We affirm in part, reverse in part, and remand with directions.

The defendant was charged by indictment of the offenses of first-degree murder, solicitation of murder for hire, home invasion, and residential burglary in the September 3, 1991, stabbing death of the defendant's ex-wife, Jayne Kelly, in her home in Naperville. The solicitation count was based on an alleged cash payment to the defendant's cousin, Bill Kelly, in April 1990, and an alleged cash payment of $2,000 to LeRoy (Rocky) Cerda in August 1990. Defendant allegedly arranged with Rocky Cerda for him to murder Jayne Kelly by stabbing at home while the children were away. Defendant filed for and was granted leave to sever the trial of the murder charges from the solicitation charges.

Numerous pretrial motions were filed both before and after the severance, and the cases proceeded toward trial, with the murder case to be tried first. Two rulings of the trial court with respect to the murder case and one ruling with respect to the solicitation case caused the State to file these two appeals prior to trial. First, the trial court granted the defendant's motion in limine to bar use of prior testimony of the victim, Jayne Kelly. The victim's testimony had been taken at a hearing in Cook County in September 1987 in which Jayne Kelly testified about the defendant's acts allegedly violating an order of protection. The testimony concerned an incident in which the defendant went to Jayne Kelly's home, confronted her, used profanity in addressing her, and spat in her face, all in violation of an order of protection. The State asserted it wanted the testimony about the 1987 incident to be put into evidence because that testimony revealed a motive by the defendant in the 1991 murder case. The defendant asserted that the evidence would be more prejudicial than probative and thus it should not be put into evidence. In granting the motion in limine to suppress this evidence the court indicated that although there was a cross-examination of Jayne Kelly at the hearing respecting violation of the protective order, the issues in that case were different from the issues in this case. For that reason the prior testimony would not be allowed in the murder trial.

The second ruling of the trial court which caused the State to appeal was the ruling of the trial court barring the State's use of the post-murder tape-recorded conversations of the defendant with the men he had allegedly previously solicited to kill his ex-wife. The trial court prohibited the use of the tapes in the State's case in chief "because they lack relevance." After motions to reconsider these two rulings were denied, the State filed a certificate of impairment and notice of appeal with respect to these rulings.

The solicitation case also proceeded generally toward trial, with the defendant again filing several pretrial motions. One of those was a motion in limine to exclude evidence of the murder in the solicitation trial. This motion was granted. The defendant also filed a motion in limine to bar any reference to the death investigation. The trial court ruled that, with the exception of voir dire, no reference should be made to the reason for Jayne Kelly's absence. The defendant also moved that all references to the police be eliminated since those references were relevant only to the murder. The court read through the transcript of the tape and struck the references to the police. The next day, the State informed the trial court of its intention to appeal (1) the court's rulings suppressing evidence of the murder in the solicitation case; (2) the ruling barring evidence of Jayne Kelly's death; and (3) the ruling barring references to the police in the tape-recorded statements.

The trial court released the defendant on $500,000 bond pending the outcome of the appeals. Pursuant to the State's motion, this court ordered the two appeals consolidated for briefing and argument.

In the first issue on review, the State asserts that the trial court erred in suppressing the 1987 testimony of Jayne Kelly regarding the defendant's violation of the protective order. The State sought to introduce evidence as to this act of abuse (defendant spitting on Jayne Kelly), in order to permit the trier of fact to draw an inference as to defendant's intent to commit murder. The State requests that the trial court's decision be reversed and the case remanded for a new trial at which such evidence would be admitted.

Motions in limine are acceptable in criminal cases to exclude extraneous matters. (People v. Pantoja (1992), 231 Ill. App. 3d 351, 353, 172 Ill. Dec. 926, 596 N.E.2d 205.) A motion in limine is used in an attempt to protect the moving party from the prejudicial impact of inadmissible evidence being elicited and objected to in the presence of the jury. (Pantoja, 231 Ill. App. 3d at 353.) The trial court may reject offered evidence on grounds of irrelevancy if evidence has little probative value as a result of remoteness, uncertainty, or its possibly unfair prejudicial nature. (People v. Enis (1990), 139 Ill. 2d 264, 281, 151 Ill. Dec. 493, 564 N.E.2d 1155.) A reviewing court will not reverse the trial court's ruling on a motion in limine absent an abuse of discretion. Pantoja, 231 Ill. App. 3d at 353.

In this case, the trial court reasoned that the evidence was former testimony and thus could be admissible on the basis of the former testimony exception to the hearsay rule. However, the court reasoned, Ohio v. Roberts (1980), 448 U.S. 56, 65, 65 L. Ed. 2d 597, 607, 100 S. Ct. 2531, 2538-39, sets forth two requirements of former testimony in order to render it admissible: (1) there must be some demonstration that the witness is unavailable; and (2) the statement must show some "indicia of reliability." (Roberts, 448 U.S. at 66, 65 L. Ed 2d at 608, 100 S. Ct. at 2539.) Illinois law reveals that the second factor, the "reliability" of the testimony, is determined by demonstrating that the parties and the issues are substantially the same in the former case and the present case. (People v. Jackson (1968), 41 Ill. 2d 102, 115, 242 N.E.2d 160.) On this basis, the trial court in the present case then reasoned that the former testimony of Jayne Kelly was not reliable because the issue in the first case was whether defendant violated a protective order prohibiting him from going near his ex-wife, and the issue in this case was whether defendant had committed a murder of his ex-wife.

We agree with the trial court's analysis and determine that there is an additional rationale for the exclusion of that evidence. Under Enis, it is possible to exclude the former testimony on the basis of remoteness.

Enis was a murder case in which the defendant allegedly killed the victim, who, had been allegedly sexually assaulted by defendant on a previous occasion. Had the murder victim lived, one week later she was to testify in the defendant's criminal sexual assault case. In the subsequent murder case, at issue was the exclusion by the trial court of testimony which could have cast doubts over the identification of the defendant as the offender. In particular, a card had been sent to the victim two weeks prior to her alleged sexual assault. It contained the hand-printed message, "May all your dreams come true," underneath which was drawn a question mark. Enis, 139 Ill. 2d at 282.) Also excluded was testimony of a handwriting expert who could have testified that the writing on the envelope of that card did not match the defendant's writing. (Enis, 139 Ill. 2d at 282.) The defendant appealed the exclusion of this evidence, arguing that the card supported his claim that someone else was responsible for the murder. He asserted that because the letter was sent anonymously and contained a mysterious and somewhat ominous message, it tended to show that whoever sent the letter "might have been stalking [the victim] from a distance and might have been harassing her." (Enis, 139 Ill. 2d at 282.) The trial court excluded ...

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