Appeal from the Appellate Court for the First District.
Statements made by a husband to his wife while he was physically abusing her were not confidential, and the marital privilege did not bar their admission at his trial for the murder of another person.
For People State of Illinois, Appellant: Mr. Peter D. Fischer, Assistant State's Attorney, Chicago, IL; Hon. Lisa Madigan, Attorney General, Criminal Appeals Division, Chicago, IL.
For Joseph Trzeciak, Appellee: Ms. Jennifer L. Bontrager, Assistant Appellate Defender, Chicago, IL.
JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, and Kilbride concurred in the judgment and opinion. Justice Theis specially concurred, with opinion, joined by Justice Karmeier. JUSTICE THEIS, dissenting. JUSTICES KILBRIDE and KARMEIER join in this dissent upon denial of rehearing.
[¶1] Defendant, Joseph Trzeciak, was convicted of the murder of Donald Kasavich. The appellate court, with one justice dissenting, reversed defendant's conviction, holding that a threat made by defendant to his wife, Laura Nilsen, that he would kill her and Kasavich, was inadmissable under Illinois' marital privilege, section 115-16 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-16 (West 2010)), and that defendant was prejudiced by the statement's introduction at trial. 2012 IL App (1st) 100259, 972 N.E.2d 205, 361 Ill.Dec. 720. For the reasons set forth below, we find that the threat was not barred by the marital privilege and, therefore, reverse the judgment of the appellate court.
[¶3] On June 29, 2004, the victim, Donald Kasavich, was found dead in his trailer in the Hegwisch area of Chicago. Kasavich suffered three gunshot wounds to the head. His trailer was in disarray and a window had been broken. Defendant, a resident of Hammond, Indiana, was subsequently charged with Kasavich's murder.
[¶4] Prior to trial, defendant filed several motions to exclude various pieces of evidence and testimony, including a motion to exclude evidence of his prior acts of domestic violence against his wife, Laura Nilsen, and a motion to exclude confidential communications made to her. With respect to the former motion, defendant sought to exclude his general pattern of violence and abuse toward Nilsen; evidence that in April of 2004, defendant beat her and then drove her to Kasavich's trailer;
and evidence that he was jealous Nilsen was going to run off with Kasavich and, therefore, beat her. With respect to the latter motion, defendant sought to exclude a statement made by him to Nilsen in April of 2004, in which he threatened to kill both her and Kasavich.
[¶5] The circuit court of Cook County denied in part and allowed in part defendant's motion to exclude evidence of defendant's violence against Nilsen. The court ruled that some evidence of domestic violence was relevant to defendant's motive for killing Kasavich and also relevant to intent. The trial court, however, limited the evidence that was admissible, finding that the admission of all of the evidence would be more prejudicial than probative.
[¶6] The trial court denied defendant's motion to exclude certain testimony from Nilsen based on the marital privilege. The trial court framed the issue as:
" whether or not [the] marital privilege prohibits the testimony of defendant's wife against defendant in defendant's trial for a murder committed against a third party, Donald Kasavich, as to defendant's actions toward his wife, and as to defendant's contemporaneous threats to kill his wife and Kasavich when defendant was not charged with committing an offense against his wife."
After discussing several Illinois cases as well as cases from other jurisdictions, and noting the purpose underlying the marital privilege, the circuit court concluded that our legislature could not have intended to protect the type of spousal abuse alleged in this case or the communications made during such abuse as privileged. The court further found that defendant's conduct in April 2004 and his threat was admissible to show defendant's motive to kill Kasavich because Nilsen allegedly turned to Kasavich for help in escaping from defendant. The court also found that defendant did not intend the threat to be confidential in that he expected Nilsen to convey it to Kasavich to convince Kasavich to stay away from Nilsen and to dissuade him from helping her escape from defendant. The court reasoned that defendant relied upon the fear produced by such threats rather than upon any confidential relationship of the marriage. Accordingly, Nilsen was permitted to testify regarding what she told a detective on July 20, 2004, specifically:
" In April 2004, defendant threatened to kill Nilsen. 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."
[¶7] At trial, Kellee O'Nions testified that she discovered Kasavich's dead body on June 29, 2004. O'Nions stated she had lived with Kasavich from time to time for several years. O'Nions admitted she had been a crack cocaine addict for more than 20 years but stated she no longer used it. O'Nions also stated that she and Kasavich had taken drugs together and she was aware Kasavich often purchased crack from defendant.
[¶8] O'Nions testified that she accompanied Kasavich on June 25, 2004, to Richard Roethler's home in Hammond. O'Nions had known Roethler for approximately 20 years and introduced Kasavich to him because Kasavich was looking for a car to buy and Roethler had a car to sell. Kasavich agreed to buy a red car from Roethler in exchange for a combination of money and cocaine.
[¶9] On June 26, O'Nions left with Kasavich to go to Pennsylvania to visit some of Kasavich's family. They drove Kasavich's van and left the red car parked at his trailer. When they returned on June 28, the red car was gone. The next morning O'Nions and Kasavich went to Roethler's house, where they learned Roethler had taken the car back. O'Nions overheard Kasavich and Roethler arguing about the car and the cocaine. Kasavich left, but O'Nions remained to talk to Roethler about giving the car back to Kasavich. After Roethler refused, O'Nions returned to Kasavich's trailer. O'Nions and Kasavich argued and he asked her to leave, which she did. At the time she left, Kasavich had no injuries, the trailer was intact, and the window was not broken.
[¶10] Roethler was later interviewed by Chicago police Detective Kevin Eberle, who concluded Roethler was not a suspect in Kasavich's homicide. In addition, Roethler was excluded as a suspect based on physical evidence taken from the victim and the crime scene.
[¶11] Patricia Madigan testified she met defendant through a mutual friend, Danny Barnas. She bought crack cocaine from defendant, which she had used on a daily basis in 2004. However, in 2009, when the trial took place, she testified she had been clean for three or four years. Madigan did not know Kasavich.
[¶12] Madigan testified that, on June 29, 2004, she called defendant to purchase crack from him. They made arrangements to meet at the intersection of 129th Street and Commercial Avenue in Chicago, between 1:30 and 2 p.m. that day. Defendant failed to show up. Madigan again called defendant and when she finally reached him, he agreed to meet her at 4 p.m. at the same intersection. Madigan drove Michael Lesko's car to the designated location. When she saw defendant, his arm was bandaged and bloody and his clothes had blood on them. Defendant told Madigan he had been involved in a police chase with the Hammond police department and cut himself on glass from his truck. Defendant then asked Madigan if she had heard anything about a murder at a trailer court. She responded she had not.
[¶13] Madigan drove defendant to another drug delivery, then defendant took over driving Lesko's car, and they picked up his daughter. After his daughter got into the car, defendant asked her if she had heard anything about a murder in a trailer court. When she responded she had not, defendant told her to " mind her own fuckin business." The trio then went to Burger King and back to defendant's house to eat.
[¶14] When they got back to defendant's house, he packed an overnight bag and he and Madigan went to Lesko's house. At Lesko's house, defendant asked Madigan to wash his clothes and give him a haircut, which she did. Defendant also bathed, after which Madigan rebandaged his arm. While waiting for defendant's clothes to dry, Madigan, defendant and Lesko used drugs.
[¶15] Thereafter, Madigan and defendant returned to his house in Lesko's car. Defendant exited the car, walked down an alley and went over a fence into his yard. When he returned approximately 5 to 10 minutes later, he threw items wrapped in a blanket over the fence. According to Madigan, the items appeared to be rifles or
guns. Defendant put the guns in the trunk. Defendant then drove down 130th Street with a pistol on his lap, throwing bullets out the window. Subsequently, defendant drove to a landfill by the Calumet River. Defendant gave Madigan crack cocaine to smoke and told her not to watch what he was doing. Defendant exited the car and Madigan heard a splash. When defendant returned, he did not have the gun that was previously on his lap.
[¶16] The two went to the house of their mutual friend, Barnas. Once they arrived at Barnas' house, Madigan smoked crack in the basement while defendant and Barnas spoke privately. She overheard defendant ask Barnas' permission to leave some things at his house. Defendant then brought the blanket from the trunk into Barnas' house. After smoking more crack in Barnas' basement, Madigan and defendant returned to Lesko's home. The two stayed the night and in the morning, defendant left with Lesko's car. Madigan called her mother to pick her up and she then learned about Kasavich's murder.
[¶17] The next time Madigan saw defendant was at Barnas' house sometime in July. She heard defendant asked Barnas if he could remove the rifles he had left there. At this time, the rifles were in a golf bag. On July 28, Madigan spoke with a Chicago police detective and recounted these events in a handwritten statement. She also testified before a grand jury.
[¶18] Michael Lesko testified that he too used crack cocaine in 2004 and knew both defendant and Madigan. In 2004, he owned a white Oldsmobile and would lend it to people, including Madigan and defendant. According to Lesko, between 6 and 8 p.m. on June 29, he was sitting in his kitchen when Madigan and defendant walked in unannounced. Defendant's arm was bandaged with some type of cloth and there was blood on his clothes. Defendant told Lesko he had a couple too many beers, fell down, and injured his arm. Defendant asked if he could use Lesko's bathroom to clean up, which Lesko found unusual since defendant had never made such a request before. While defendant took a bath, Madigan washed his clothes. When defendant was finished with his bath, Madigan rebandaged defendant's arm and then cut his hair, which was also unusual to Lesko. The three talked for a bit and then Lesko went to bed. The next day defendant left in Lesko's car.
[¶19] Lesko testified that when he got his car back a day or two later, it was very clean. Lesko testified that in July, the police showed up at his house and asked for consent to search his vehicle. He ...