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05/05/94 PEOPLE STATE ILLINOIS v. JAMES J. KELLY

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT


May 5, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
JAMES J. KELLY, DEFENDANT-APPELLEE.

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 the evidence on the basis that it was too remote or speculative. The supreme court affirmed, determining that there was little to link the message to the murder of the victim. The supreme court stated that the defendant's rationale that the card could show that someone was stalking her was too speculative. Enis, 139 Ill. 2d at 282.

Similarly, we affirm the trial court's decision to exclude Jayne Kelly's former testimony on the basis that it is too remote to be admissible. Jayne Kelly's testimony in 1987 was intended to demonstrate the defendant's violation of a protective order by the act of spitting in the victim's face. In the present case, some four years later, it was to be used as former testimony to show intent to commit murder. While the 1987 testimony was properly used to demonstrate that defendant violated a protective order, we determine that it is much too thin a veneer of evidence to be supportive in this case. That is, we decline to rely on that evidence to demonstrate that defendant, in 1991, had the intent to murder his ex-wife. We determine that the incident and motive behind it were too remote to make it admissible and therefore the trial court's ruling excluding it was proper on either basis.

In the second issue on review, the State asserts that the trial court erred in suppressing as irrelevant three tape-recorded conversations the defendant had with the men he allegedly solicited to murder his ex-wife. The conversations took place after the murder. According to the brief, the State intended for all three tapes to be entered into evidence. The State argues that when those statements are taken in context they demonstrate the intent of defendant to murder his ex-wife, and his consciousness of guilt of the murder. The State points out that some of defendant's statements on the tapes are false, exculpatory statements, which evidence a guilty conscience. The defendant asserts that the recordings were irrelevant and would be prejudicial to his case and thus the trial court did not abuse its discretion in excluding that evidence.

The first recording is a telephone conversation between the defendant and Bill Kelly at 2:30 a.m. in which they arrange a meeting in one hour. The second recording is of the conversation which took place at that meeting, at about 3:50 a.m. on September 6, 1991. The third recording is of two brief telephone conversations between the defendant and LeRoy "Rocky" Cerda, at about 8 p.m. on September 6, 1991. The trial court ordered these recordings excluded on the basis that there were no "express, implied or tacit admissions" from the defendant and that the tapes therefore lacked relevance. The court acknowledged "some innuendos" but found that the defendant had explained them in the course of the recorded conversations.

A trial court may reject offered evidence on the ground of irrelevancy if evidence has little probative value as a result of remoteness, uncertainty, or its possibly unfair prejudicial nature. (Enis, 139 Ill. 2d at 281.) Even if relevant, however, evidence will be excluded if the prejudicial effect outweighs its probative value; a trial court's ruling on this question, as with relevance, will not be reversed absent an abuse of discretion. (People v. Brown (1992), 235 Ill. App. 3d 479, 495, 176 Ill. Dec. 492, 601 N.E.2d 1190.) Prearrest, false exculpatory statements of the defendant are admissible in the State's case in chief as probative evidence of the defendant's consciousness of guilt. People v. Seawright (1992), 228 Ill. App. 3d 939, 969, 171 Ill. Dec. 183, 593 N.E.2d 1003.

In reviewing the transcript of the recordings, we note that the defendant made no directly incriminating remarks. For instance, this colloquy is excerpted from the first conversation:

"Bill: You know I got that picture and everything and all that identification, you know, that you gave me.

[Defendant]: Okay. What time can you be out in front?

Bill: Uh.

[Defendant]: Wait a minute, Bill.

Bill: What time is it now?

[Defendant]: It's 2:30 in the morning."

The reference to the "picture" and "identification" are references to information that defendant allegedly gave Bill Kelly while allegedly soliciting him to murder for hire. Another colloquy which the State asserts is incriminating is this excerpt from the second conversation between defendant and Bill Kelly:

"Bill: You did it. You had to do somethin'.

[Defendant]: (Whispering) I was cleared by the cops tonight, Bill . . . do you understand that? I was cleared.

Bill: Why did you do it, Jim. I know you did it.

[Defendant]: I didn't do it. I was cleared by the cops tonight."

The State asserts that this colloquy is evidence of a false exculpatory statement, "I didn't do it." Such a false statement is inferred in Illinois to show a guilty conscience. (Seawright, 228 Ill. App. 3d at 969.) However, we determine that such remarks do not support the Conclusion that defendant was guilty of murdering his ex-wife. They could just as reasonably be taken to mean that defendant knew he was innocent all along and had just realized that the police did not hold him culpable. Alternatively, the statement could be a natural reaction that a reasonable person would make once accused of "doing it." For these reasons, we find no abuse of discretion in the trial court's exclusion of all the tapes from evidence.

In the last issue on appeal, the State asserts that the trial court erred in excluding evidence of the murder of Jayne Kelly in the defendant's trial for solicitation. The State asserts that such evidence is critical to its case in the solicitation trial. That is, the State claims that the evidence of solicitation and murder are so interwoven that evidence of the murder necessarily must come into the solicitation trial. In response to defendant's motions in limine, the trial court excluded evidence of Jayne Kelly's death, the method of her death, the fact that defendant was charged in the murder, and references to the police investigation of the murder in the evidence presented at defendant's solicitation trial. We determine that the trial court abused its discretion in so ordering, and thus we reverse this part of its decision with directions outlined below.

Evidence of the commission of other crimes for which defendant is not on trial is admissible when such evidence is relevant to prove modus operandi, intent, identity, or motive. (People v. Thingvold, (1991), 145 Ill. 2d 441, 452, 164 Ill. Dec. 877, 584 N.E.2d 89.) However, such evidence is not admissible to establish propensity for committing a crime. (Thingvold, 145 Ill. 2d at 452.) Such evidence overpersuades the jury, which might convict the defendant only because it feels he is a bad person deserving punishment. (Thingvold, 145 Ill. 2d at 452.) When such evidence is offered, it is incumbent upon the trial court to weigh the relevance of the evidence to establish the purpose for which it is offered against the prejudicial effect that the introduction of such evidence may have upon the defendant. (People v. Stewart (1984), 105 Ill. 2d 22, 62, 85 Ill. Dec. 241, 473 N.E.2d 840.) The trial court's ruling as to the admissibility of such evidence will not be reversed absent a clear showing of abuse of discretion. (Thingvold, 145 Ill. 2d at 452-53.) However, before evidence of other crimes may be admitted, the State must first show (1) that a crime took place and (2) that the defendant committed it or participated in its commission. (Wernowsky v. Economy Fire & Casualty Co. (1985), 106 Ill. 2d 49, 55, 87 Ill. Dec. 484, 477 N.E.2d 231.) Proof that the defendant committed the crime, or participated in its commission, need not be beyond a reasonable doubt, but such proof need be more that a mere suspicion. Thingvold, 145 Ill. 2d at 456.

It is clear that the fact that defendant's ex-wife was murdered by stabbing on September 3, 1991, is relevant to whether defendant had intent to solicit murder for hire several months earlier by Rocky Cerda and Bill Kelly. That is, the fact she was murdered by stabbing is probative as to whether he had intent to solicit murder by stabbing several months prior to the date of the murder. Yet the fact that she was murdered is prejudicial to defendant in the solicitation case. In weighing the prejudicial value against the probative value of that fact in order to determine admissibility, the trial court must consider whether sufficient evidence existed linking defendant to the commission of the murder. Thingvold, 145 Ill. 2d at 460-61.

In this case the State made an offer of proof in attempting to persuade the trial court to permit the State to introduce evidence of Jayne Kelly's stabbing death. The State intended to introduce the testimony of Arthur Bovio, to whom the defendant confessed to stabbing his ex-wife to death. Defendant also made a statement to his ex-wife in the presence of his daughter around the same time that he began the solicitation, stating, "I'll get you someday." The State also had testimony of witnesses to defendant's statements that he hated his ex-wife. Defendant made false exculpatory statements to the police regarding his rental car on the day of the murder. There was conflicting evidence as to defendant's whereabouts on the day of the murder. Defendant's motive was illustrated by the fact that on August 29, 1991, the divorce court ruled against the defendant by ordering him to make a lump sum payment of $250,000 to his ex-wife. In addition, the court denied his petition for custody on August 29, 1991. In this case, the person that defendant is charged with soliciting to murder will testify that the defendant told him he wanted her stabbed in her home while the children were away. That is in fact how she was murdered.

In light of the "nexus" of evidence linking defendant to the murder, we determine that the trial court erred in not permitting evidence that Jayne Kelly died in a stabbing murder to be brought into the solicitation case. (Thingvold, 145 Ill. 2d at 461.) Thus, the trial court abused its discretion in not admitting such evidence. On this basis, we affirm the trial court's rulings with respect to the murder trial and reverse the trial court's ruling regarding admitting evidence of the death of Jayne Kelly in the solicitation trial. On this basis we remand to the trial court with directions to admit evidence of the stabbing murder of Jayne Kelly in the solicitation trial. However, we prohibit the trial court from admitting evidence in the solicitation trial that the defendant was charged in the murder case.

Affirmed in part; reversed in part and remanded to the trial court with directions.

DOYLE and QUETSCH, JJ., concur.

19940505

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