Appeal from Circuit Court of Macon County No. 08CF1474 Honorable Lisa Holder White, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justice Appleton concurred in the judgment and opinion.
Justice Pope specially concurred in the judgment, with opinion.
¶ 1 In October 2008, the State charged defendant, William J. Richter, with three counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)). In August 2010, the State filed a motion in limine, seeking to admit numerous statements the victim made to others pursuant to section 115-10.2a of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.2a (West 2010)). Following a September 2010 hearing, the trial court granted the State's motion as to the majority of the statements, excluding only some statements that the victim made to two co-workers. Following an October 2010 trial, a jury convicted defendant of one count of first degree murder. The court later sentenced defendant to 75 years in prison.
¶ 2 Defendant appeals, arguing that the trial court abused its discretion by granting portions of the State's motion in limine. Specifically, defendant contends that (1) the court erred by admitting numerous hearsay statements the victim made to friends, family members, and co-workers under section 115-10.2a of the Code, and (2) the court's decision to admit numerous hearsay statements violated his sixth amendment right to confrontation.
¶ 3 We disagree and affirm.
¶ 5 In October 2008, the State charged defendant with three counts of first degree murder, alleging that on Sunday, August 24, 2008, defendant, while armed with a firearm, shot the mother of his two children, Dawn Marquis, in the head, killing her. 720 ILCS 5/9-1(a)(1), (a)(2) (West 2008); 730 ILCS 5/5-8-1(a)(1)(d)(i) (West 2008) (text of section effective until June 1, 2009).
¶ 6 A. The State's Motion in Limine
¶ 7 In August 2010, the State filed a motion in limine, seeking to admit numerous hearsay statements Dawn made primarily to friends, family members, and co-workers. The State's motion (1) listed each witness who would offer hearsay testimony and (2) identified each hearsay statement of Dawn the State sought to elicit from that witness and to admit under section 115-10.2a of the Code. That section permits the admission of hearsay statements by certain persons in domestic violence prosecutions when the declarant is unavailable to testify. Specifically, the State sought to introduce Dawn's hearsay statements at defendant's trial to show (1) defendant intended to kill Dawn and (2) defendant's motive for doing so.
¶ 8 1. The State's Evidence at the Hearing on the Motion in Limine
¶ 9 At the September 2010 hearing on the State's motion in limine, the State presented the following evidence:
¶ 10 a. Dawn's Statements to Her Mother, Norma
¶ 11 Norma Marquis, Dawn's mother, testified that Dawn lived with defendant for 17 years and had two children by him during their relationship, 17-year-old Dalton Marquis and 15-year-old Crystal Marquis. (Dawn had two other adult children from a previous relationship, Amanda Carter and Cory Marquis.) In August 2008, Dawn told Norma, with whom she was then residing, that she had left defendant because she could no longer tolerate his physical, mental, and verbal abuse. Norma testified that Dawn told her that Dawn was in the process of obtaining an apartment for herself, Dalton, and Crystal, but defendant would not agree to relinquish custody of their children.
¶ 12 b. Dawn's Statements to Her Son Cory
¶ 13 The State introduced an August 4, 2008, recording of a conversation between Dawn and Cory that took place while Cory was incarcerated in the Illinois Department of Corrections. During their conversation, Dawn told Cory, in part, that (1) she was moving from defendant's home and (2) defendant threatened to kill her.
¶ 14 c. Dawn's Statements to a Therapist
¶ 15 On August 7, 2008, Timothy Moore, a psychological therapist, met individually with Dawn and defendant in an attempt to help them reconcile their relationship. Dawn informed Moore that she intended to leave defendant. Dawn explained that she was afraid of defendant because of his "radical" mood swings, recounting that the previous weekend defendant had grabbed her by her hair and threatened her, as follows: " 'If you leave, we might as well both die.' " Dawn also told Moore that (1) defendant's will left their children to his sister, (2) she intended to rent an apartment for her children, and (3) she had started a relationship with a younger man, which she characterized as " 'not about sex but about someone caring for her.'"
¶ 16 d. Dawn's Statements to Her Neighbors
¶ 17 i. Kimberly Smith-Chandler
¶ 18 In June 2008, Dawn told Smith-Chandler, who was a neighbor, that she had to move out of the home she shared with defendant. Smith-Chandler noted that Dawn was committed to leaving defendant but was afraid to do so because Dawn believed defendant would kill her.
¶ 20 In April 2008, Willis-a branch manager for a temporary employment agency and Dawn's neighbor-assisted Dawn in obtaining employment. On Thursday, August 21, 2008, Willis spoke with Dawn about an electronic mail message (e-mail) that was sent to the agency's corporate office, purportedly from Dawn, admitting illegal drug use and expressing anger at her fellow employees. Dawn informed Willis that she had not sent the e-mail and conveyed her frustration that defendant was attempting to ruin her plans to begin a new life. Dawn told Willis that defendant had threatened to kill her "many times." Specifically, Dawn stated that, "I'm telling everybody I know that it will happen, and [defendant] may not do it, but he will have somebody do it if he does not do it." Dawn explained to Willis that she was constantly "looking over [her] shoulder" because she was afraid of defendant.
¶ 21 e. Dawn's Statements to Her Work Supervisor
¶ 22 Candy Petersen testified that she became Dawn's work supervisor three months before her death. Petersen stated that, initially, Dawn was a "faithful" employee who came to work on time and would work late when required. About four weeks before Dawn's death, Petersen noticed a change in Dawn's mood in that she became upset, nervous, and afraid, and began crying at work. After Dawn left the apartment she shared with defendant and moved in with her mother, Dawn confided in Petersen that she believed defendant was going to kill her because she was planning to move into her own apartment. The day before her death, Dawn became "very nervous" when explaining to Petersen that she met defendant the previous night and he asked her to come back. When Dawn responded that she was moving into her own place, defendant made a gesture with his hands-representing a gun-and told her, " 'You're dead.' " Peterson also stated that either Dalton or Crystal told Dawn that defendant "had gotten passports to leave the country." Peterson added that she provided police a statement shortly after Dawn's death, in which she stated that Dawn told her she found passports for defendant, Dalton, and Crystal.
¶ 23 f. Dawn's Statements to Her Co-workers
¶ 25 Collins, one of Dawn's co-workers, testified that in June 2008, Dawn began speaking to her about her relationship with defendant, which Collins noted was "never positive." Collins described an argument that occurred after Dawn returned from the grocery store because defendant believed that she had been gone too long. Dawn also told Collins that defendant was "stalking her" in that she suspected defendant was following her after she left her home to go to work. Approximately three weeks before her death, Dawn told Collins about her plans to leave defendant and move into her own apartment. Dawn wanted to take her children with her, but defendant would not allow it. Collins noticed that Dawn became upset because she feared defendant would kill her if she carried out her plans. Collins recalled that the day before her death, Dawn was extremely upset, stating that "something bad was going to happen to her," but Collins did not inquire further. Collins further recalled an incident in which Dawn told her that she had found passports for defendant, Dalton, and Crystal.
¶ 27 After meeting Dawn at work, Tulop began a dating relationship with Dawn that became intimate. Approximately three weeks before her death, Dawn told Tulop that defendant threatened to kill her if she continued seeing him.
¶ 29 The day before her death, Dawn told Bird that she had dinner with defendant the previous night, and he asked her to return home. When Dawn refused, defendant made a gesture with his hand, representing a gun, pointed to Dawn, and said, " 'Bang, bitch,' " " 'It's on,' " or " 'You're dead.' " Dawn also told Bird that she did not believe defendant could kill her but that defendant would hire someone to murder her. Dawn planned to leave work early because she believed defendant had someone following her. Bird added that Dawn appeared scared.
¶ 31 Long first met Dawn at work and knew defendant from his childhood, but he had not continued that friendship. In early August 2008, Long received a telephone call from defendant. Defendant first asked Long if his phone was being "tapped or recorded." After Long said no, defendant then asked him if he knew of anyone at Dawn's work that drove a green pickup truck. Long told defendant that he did not. The day before Dawn's death, Dawn told Long that she was upset because she believed defendant was attempting to sell a car to raise money to have her killed.
¶ 33 Sometime during her employment, Dawn approached McKnight crying, stating that she was afraid to go home because something was going to happen. McKnight could not recall the date of their conversation.
¶ 34 g. Dawn's Statements to the Apartment Complex Manager
¶ 35 Kari Kavanaugh testified that on Thursday, August 21, 2008, Dawn inquired about renting a two-bedroom apartment for herself and her two children. Dawn explained that she was late for their appointment because she had to resolve an issue regarding a work e-mail. Dawn told Kavanaugh that she did not want defendant to know that she was renting an apartment. Kavanaugh's impression was that Dawn was afraid of defendant based on her actions, but she acknowledged that Dawn did not specifically tell her that she was afraid.
¶ 36 h. Dawn's Text Message to Her Daughter
¶ 37 Decatur police department Detective Charles Hendricks testified that during his investigation of Dawn's death, he questioned Crystal about a telephone text message she received from Dawn the evening prior to Dawn's death. Dawn's message read, as follows:
"I got you [sic] message, but I can't talk to [defendant]. All we do is argue. He becomes angry and starts threatening me. Well, enough of that. Do you have a softball game tournament tomorrow and when[?]"
Hendricks (1) confirmed that Crystal had a softball game the following day and (2) noted that he did not personally verify that the text message originated from Dawn's phone.
¶ 38 i. Dawn's Recorded Message to Her Attorney's Answering Machine
¶ 39 On Friday, August 22, 2008, Jennifer Golladay, the secretary for attorney Guy Casey, answered a phone call from a male caller, inquiring as to whether Dawn had made it to her appointment with Casey, which had occurred earlier that day. On the morning of Monday, August 25, 2008-the day after Dawn's death-Golladay listened to messages that had been left on Casey's business telephone voicemail during the weekend. The following message was received on Saturday, August 23, 2008:
"Hi, I'm trying to reach Mister Casey. This is Dawn Marquis. I am leaving him a message. The person who called, claiming to be my father was not my father. Also [defendant] is threatening me with paying people from out of town to take care of me and the guy I was with. My son called me late last night and said that [defendant] was giving his cars away to some people out of Chicago and said he was acting crazy, so, yeah, [defendant] drove by me and held his fingers up and pointed at me and made a gesture like a gun so I am feeling very, very threatened right now and so just give me a call when you get a chance. Thanks." (Dawn's father, Dwight Marquis, testified that he did not call Casey.)
¶ 40 2. Defendant's Evidence at the Hearing on the Motion in Limine and the State's Rebuttal
¶ 41 In his written response to the State's motion in limine, defendant provided separate summaries of interviews police conducted with Dalton on Sunday and Monday, August 24 and 25, 2008, to show that the hearsay statements of Dawn that the State sought to admit were not reliable. At the hearing on the State's motion in limine, defendant informed the trial court that in the interest of judicial economy, the State had agreed to permit defendant to introduce the summaries in lieu of Dalton's testimony. In exchange, defendant agreed not to object to the State's introduction of a recording, showing an August 25, 2008, interview that police conducted with Dalton. The court accepted the parties' agreement.
¶ 42 The Sunday, August 24, 2008, synopsis of Dalton's statements to police recounted that Dalton (1) was not aware of any physical violence between defendant and Dawn, and (2) "had never heard [defendant] threaten Dawn." The Monday, August 25, 2008, synopsis, stated in pertinent part, the following:
"Notwithstanding statements by Dawn *** to both *** Collins and *** Peterson that Dalton had told her that he had overheard [defendant] talking to some guys from Chicago, offering to give away a car if they would kill Dawn, Dalton states that he never heard [defendant] say that and that he (Dalton) never said anything to Dawn like that. He reiterated in the same statement when asked, if on that day he had heard [defendant] say anything to Dawn about shooting her or having her shot 'he never heard [defendant] say anything like that.' When asked in the same statement 'if he ever heard [defendant] say anything to indicate he would compensate someone for causing some kind of harm to Dawn, or ever heard [defendant] make any kinds of threats to Dawn" Dalton stated 'he had never heard any of this'." (Collins' testimony at the hearing on the State's motion in limine did not include any evidence regarding "guys from Chicago.")
¶ 43 In rebuttal, the State played for the trial court the Monday, August 25, 2008, recording of Dalton explaining to police, in part, that defendant made him call Dawn and falsely claim that defendant was "acting crazy" and giving away his cars to men from Chicago.
¶ 44 3. The Parties' Arguments to the Trial Court
¶ 45 After the presentation of evidence, the trial court sought clarification on the specific statements the State sought to admit under section 115-10.2a of the Code, as follows:
"THE COURT: [Section 115-10.2a] applies to statements that are not specifically covered by any other hearsay exception. *** [The court does not] think [the State] get[s] to, under this section, argue in the alternative. *** [C]ertainly, [the State] can say, [']we're going to ask that it be admitted for this purpose and [the State] think[s] there is an exception that applies.[']
[THE STATE]: No. [The State is] saying that you have to show substantial guarantees *** of trustworthiness as other hearsay exceptions.
THE COURT: Right. [THE STATE]: So *** section [115-10.2a] would not apply to [Dawn's] statements she was going to get an apartment. Those [statements] would come in under the state of mind [excep- tion]. What [the State is] saying is that the same type of statements that [Dawn is] making at the same time would have the same guarantees of trustworthiness because of this other recognized hearsay exception.
THE COURT: Okay. And tell [the court] specifically what statements you're referring to.
* * * [THE STATE]: The statements that [Dawn] believed [defendant] was going to kill her; that she was afraid of him; that he threatened to kill her."
¶ 46 Defendant argued, in part, that Dawn's statements should not be admitted under section 115-10.2a because they did not have "substantial guarantees of trustworthiness." In support of his argument, defendant contended that Dawn had been "living a lie" by "having an affair with someone other than her significant other with whom she had been living with for 17 years." Defendant also noted that (1) an official from the Department of Homeland Security concluded that passports were not issued to defendant, Dalton, or Crystal, which was contrary to Dawn's claim to her co-worker, Collins, and her work supervisor, Peterson, and (2) Dalton expressly denied that he had called Dawn and told her that "he heard [defendant] say these [Chicago] guys were being hired to kill [Dawn] and get payment through automobiles."
¶ 47 4. The Trial Court's Decision
¶ 48 The trial court took the matter under advisement and later issued a written order, in which the court identified the following factors it considered: (1) what motivation the specific witness might have to testify, (2) whether the statements were subject to cross-examination, (3) whether the statements were based on Dawn's personal knowledge, (4) the spontaneity of the statements, (5) the lack of motive to fabricate the statements, (6) whether there was consistent repetition, (7) whether Dawn was under duress or pressure when she made the statements, (8) whether Dawn recanted or reaffirmed her statements, (9) whether the statements were made in response to leading questions, (10) the time that elapsed between each incident and Dawn's statements about that incident to others, and (11) the existence of any reliable evidence that refuted Dawn's statements. After considering these factors under the totality of the circumstances, the court granted the State's motion in limine as to all the aforementioned statements except the statements Dawn made to Tulop and McKnight.
¶ 49 B. The Evidence Presented at Defendant's Trial
¶ 50 1. The State's Evidence
¶ 51 During defendant's October 2010 jury trial, the State presented the testimony of Norma, Willis, Petersen, Chandler, Collins, Bird, Long, Kavanaugh, Hendricks, and Golladay, all of whom testified consistently with their respective testimony at the hearing on the State's motion in limine concerning the specific statements Dawn made to each of them. With regard to the testimony provided by Collins, however, neither the State nor defendant elicited any testimony about the passports Dawn purportedly found.
¶ 52 Cory (Dawn's adult son) testified that on August 3, 2008, he called defendant at his home from prison. Thereafter, the State introduced a recording of Cory's conversation with defendant, which the State played for the jury. The recording contained, in part, the following:
¶ 53 Defendant informed Cory that (1) Dawn was traveling to visit him and (2) he needed Cory's help to identify Dawn's new boyfriend so that he could "beat the mother fucker down." Defendant stated that he had scheduled an appointment with a marriage counselor, but if Dawn moved out of their home, he would die before he would lose custody of his children, Dalton and Crystal. When Cory asked defendant how he was going to maintain their standard of living without Dawn, defendant responded, as follows:
"I'm probably gonna have to sell the house and, I, I am keepin' the kids, Cory. There's no doubt in my mind about that, or I'm goin' in the dirt. You understand? That's for sure. That's 125% for sure, on my life. I don't care if fuckin' 20 sergeants come in this mother fucker. I will fuckin' go bananas. I will torch this ...