Appeal from the Circuit Court of Cook County. No. 05 CR 28283 Honorable Angela M. Petrone, Judge Presiding.
The opinion of the court was delivered by: Justice Salone
JUSTICE SALONE delivered the judgment of the court, with opinion. Presiding Justice Steele concurred in the judgment and opinion. Justice Murphy dissented, with opinion.
¶ 1 Following a jury trial, defendant Joseph Trzeciak was convicted of first degree murder for killing Donald Kasavich with a firearm. Defendant was sentenced to 90 years' imprisonment consisting of 50 years for murdering Kasavich and a 40-year enhancement for the use of a firearm in the commission of the murder. The trial court further ordered defendant's sentence to run consecutive to a 10-year sentence imposed following his conviction for violating federal firearms laws. On appeal, defendant raises seven claims of error, arguing: (1) that the trial court erred in admitting testimony which should have been excluded as marital privilege; (2) that the trial court erred in admitting evidence regarding defendant's domestic abuse of his wife; (3) that the trial court erred in admitting evidence regarding defendant's flight; (4) that the trial court erred in refusing to allow a defense witness to testify regarding his knowledge of the alleged murder weapon; (5) that the trial court erred in forcing a venire member to return everyday and watch the trial, after he stated that he could not be impartial; (6) that the State failed to prove beyond a reasonable doubt that he murdered Donald Kasavich; and (7) that defendant's sentence was excessive. For the reasons that follow, we reverse defendant's conviction and remand this matter for a new trial.
¶ 3 Defendant was charged with murdering Donald Kasavich with a firearm. Kellee O'Nions discovered the dead body of Donald Kasavich in his Chicago trailer on June 29, 2004. O'Nions, who lived with Kasavich from time to time, arrived at the trailer in the evening to find the trailer in disarray and Kasavich dead, lying on his back. Police investigators noted broken glass on a shed outside of the trailer with blood on it. DNA testing later revealed that the blood recovered from the window belonged to defendant. Inside the house the police recovered one fired .40-caliber Smith & Wesson bullet and three spent cartridges of the same caliber. Kasavich suffered three gunshot wounds to the head and had bruises to his hands, arms and legs. The medical examiner recovered one .40-caliber bullet from Kasavich's brain, along with several bullet fragments.
¶ 4 Prior to trial defendant filed several motions in limine requesting the exclusion of various pieces of physical and testimonial evidence. For the limited purposes of this appeal, we focus on defendant's motion to exclude testimony by his wife regarding communications between the two on the basis of marital privilege. After argument the trial court granted defendant's motion in part and denied it in part. Specifically, the trial court stated:
"In Illinois, as in other states, the intent of marital privilege is to protect the sanctity of the marriage and to promote harmony between spouses. In this case, the marriage was in shambles. There was no harmony to protect. It is alleged there was a continuous pattern by defendant of violence towards his wife since the very beginning of their marriage, including beating her several times a week, kicking her while wearing boots, threatening her with guns and knives, tying her up and locking her in their home.
It is alleged defendant was committing violent behavior upon his wife, beating her and intimidating her with a firearm while he was making the contested threats to kill both her and Kasavich. The defendant's actions and statements are intertwined and cannot be separated without keeping highly probative evidence from the trier of fact. I do not believe that the Legislature of Illinois intended to protect the type of spousal abuse alleged here and to keep action and communications committed during such abuse privileged.
The exclusion of the testimony of defendant's wife would be far more likely to frustrate justice than to promote marital harmony. The evidence also goes to the defendant's motive to kill Kasavich because defendant's wife allegedly turned to Kasavich for help in escaping from defendant. It suggests defendant did not intend the threats to be confidential. That he wanted his wife to convey them to Kasavich in order to convince Kasavich to stay way [sic] from her, and to dissuade Kasavich from helping her escape from defendant. It suggests the defendant himself was relying upon the fear produced by such threats rather than upon any confidential relationship of the marriage to achieve these goals.
Therefore, defendant's wife may testify as to what she told Detective Butler during their conversation on July 20, 2004, which is the following: In April 2004, defendant threatened to kill Laura. Defendant tied her up, beat her, threw her in his pickup truck, had a gun, drove her to Donald Kasavich's trailer, pointed at the trailer and said he'd kill Kasavich and her, and then cut off Kasavich's dick and stick it in her mouth. She and defendant were both outside the trailer for a few minutes, then defendant drove her back to their home. Defendant continued to beat her to get her to confess. She had plans to leave with Kasavich. End of what she may testify to."
¶ 5 The court went on to exclude testimony regarding statements made by defendant to his wife where she could not recall the date, and statements where defendant did not reference the victim. Defense counsel renewed their objection to all of the statements made by defendant to his wife and asked the trial court to reconsider its ruling. In denying the motion to reconsider, the trial court stated:
"I will just note though that the defense is correct that the defendant was not charged with committing crimes against his spouse while the statement in question was being made by defendant, but I found that he was committing crimes against his spouse. That was the allegation anyway that will have to be testified to in court.
A crime was being committed against her when the statement that I read was allegedly said. That statement will not be allowed to be testified to unless Laura testifies to the abuse first."
¶ 6 During the voir dire one of the venire members explained to the trial court that he would find it difficult to be unbiased because of a family member's experience in the criminal justice system. Before the entire venire, the trial refused to excuse the venire person and ordered him to attend every day of the trial as an observer and observe "how a fair trial operates." The trial court denied his ...