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People v. Cleary

Court of Appeals of Illinois, Third District

November 21, 2013

DANIEL K. CLEARY, Defendant-Appellant.

Held [*]

On appeal from defendant’s conviction for murdering his wife, the appellate court rejected defendant’s contention that his rights under the confrontation clause were violated by the admission of the statements his wife made to family members and friends prior to her death that defendant was going to kill her if she left him, since the statements were not testimonial under the test set forth in Stechly, that is, they were not made in a “solemn fashion, ” and they were not intended to establish a particular fact.

Appeal from the Circuit Court of Tazewell County, No. 10-CF-205; the Hon. Stuart P. Borden, Judge, presiding.

Peter A. Carusona and Santiago A. Durango (argued), both of State Appellate Defender’s Office, of Ottawa, for appellant.

Stewart Umholtz, State’s Attorney, of Pekin (Terry A. Mertel and Judith Z. Kelly (argued), both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Presiding Justice Wright concurred in the judgment and opinion.



¶1 Following a jury trial, defendant Daniel Cleary was convicted of murdering his wife and sentenced to 60 years' imprisonment. During the trial, the State admitted hearsay statements made by the victim pursuant to section 115-10.2a of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.2a (West 2010)). In these statements, the victim told her friends and family that defendant had stated he would kill her if she tried to end their marriage and that she wanted to leave defendant but was afraid to do so. On appeal, defendant contends that pursuant to Crawford v. Washington, 541 U.S. 36 (2004), admitting these statements violated his rights under the confrontation clause of the sixth amendment to the United States Constitution. He argues that section 115-10.2a was unconstitutional as applied to him because it allowed testimonial hearsay statements to be admitted against him when he had no prior opportunity to cross-examine the declarant.

¶2 This case calls for us to determine whether the statements admitted against defendant were testimonial. Applying the test set out in People v. Stechly, 225 Ill.2d 246 (2007) (plurality op.), we conclude that the hearsay statements at issue were not testimonial. Accordingly, the confrontation clause does not bar their admission against defendant, and we affirm.


¶4 MeLisa Cleary and her husband Daniel Cleary lived together with their children, Jacob and Chloe, and Kaitlyn, MeLisa's daughter from a previous marriage. In May 2008, MeLisa had decided to end her relationship with Cleary and started spending the weekends with her friend Nicole Simpson; MeLisa and Simpson frequented the "Tops & Tails" bar in Creve Coeur, where MeLisa started a relationship with one of the bar's regular patrons. At the end of May 2008, MeLisa told Cleary she wanted a divorce, and she planned to move out of the marital residence on June 6, 2008.

¶5 MeLisa and Cleary had an argument in their home on the evening of June 6, 2008. Later that evening, MeLisa did not show up to her sister's house as planned, and calls to MeLisa's cell phone went unanswered. The following day, MeLisa's Ford Expedition was found abandoned about a half-mile from Cleary's home in Mackinaw, Illinois. On June 9, 2008, MeLisa was found dead under an interstate overpass in Logan County. On April 16, 2010, the State charged Cleary with five counts of first degree murder (720 ILCS 5/9-1(a) (West 2010)), alleging that Cleary caused MeLisa's death by striking her on the head.

¶6 I. Statements Made by MeLisa

¶7 Prior to trial, the State requested to admit hearsay statements made by MeLisa to her friends and family members pursuant to section 115-10.2a of the Code of Criminal Procedure (725 ILCS 5/115-10.2a (West 2010)). The substance of those statements, and the conversations in which they occurred, is as follows.

¶8 Kaitlyn, MeLisa's 12-year-old daughter, testified that one or two days prior to her death, MeLisa asked Kaitlyn what she thought about MeLisa and Cleary getting a divorce. Kaitlyn answered that she thought it would be a good idea. MeLisa then asked Kaitlyn to watch over Jacob and Chloe because MeLisa thought "something bad was going to happen to her."

¶9 Paul Robertson met MeLisa approximately one month before her death at the Tops & Tails bar. In a conversation at the bar approximately two weeks before her death, MeLisa told Robertson that her marriage was "rocky" and that Cleary had threatened to kill her if she left him. MeLisa also said that when she told Cleary she wanted a divorce, he showed no emotion, which scared MeLisa.

¶10 MeLisa and her sister Brandy Gerard discussed MeLisa's marriage at MeLisa's home in Mackinaw on May 10, 2008. MeLisa told Brandy that she wanted to leave her marriage with Cleary but would never make it out alive, saying that Cleary had told her he would kill her and burn the house down. When Brandy urged her to gather her belongings and leave, MeLisa said that it did not matter if she ran–Cleary would find her and kill her. MeLisa also told Brandy that while Cleary was supposed to be in California that weekend, she believed Cleary was still in town, following her.

¶11 Stephanie Sanford was a friend of MeLisa's from the Tops & Tails bar, where they met one month prior to MeLisa's death. Sanford testified that a couple weeks before MeLisa's death, when she called MeLisa's home a man answered and told her never to call again. MeLisa called Sanford back and apologized, saying that Cleary was acting crazy and they were getting a divorce. MeLisa also said that Cleary had "hurt her before" but did not say how or when. During a conversation on the night prior to MeLisa's death, MeLisa told Sanford that Cleary said that if MeLisa "tried to leave him again, that he would kill her, that if he couldn't have her, nobody could."

¶12 Nicole Simpson was a friend and former coworker of MeLisa. While discussing MeLisa's marriage, Simpson asked why MeLisa stayed with Cleary if she was so unhappy in the relationship. MeLisa responded that Cleary, on multiple occasions, said he would never let her out of the marriage and that he would kill her first. While Simpson urged MeLisa to contact the police about these threats, she refused to do so. MeLisa called Simpson on the phone the day prior to her death, and Simpson could tell that MeLisa was upset. MeLisa told Simpson that she woke up in the middle of the night and Cleary was pacing in front of the bed, staring at her. Cleary told MeLisa he was watching her sleep because she was so beautiful and that he would never let her out of the marriage and would kill her first.

¶13 The trial court ruled these statements satisfied the criteria of section 115-10.2a and were admissible. The court did not rule whether the statements violated Cleary's confrontation clause rights because that issue was not argued at the pretrial hearing.

¶14 During the trial, as part of its case-in-chief, the State elicited testimony from the above witnesses in which they relayed the statements made by MeLisa.

¶15 II. Other Evidence at Trial

¶16 The other evidence presented at trial established that the following events occurred. On the afternoon of June 6, 2008, Cleary came home early from work, and MeLisa made repeated calls to Simpson expressing her alarm about his early arrival. She planned on packing her bags and going to Simpson's home that evening. Around 5 p.m., MeLisa was on the phone with Sanford, and Sanford heard a man's voice yelling in the background, after which the call ended abruptly.

ΒΆ17 Jacob, the couple's son, was home on June 6, and he testified that Cleary yelled at MeLisa to get off the couch. Cleary then told Jacob and his sister Chloe to go to their room and turn the radio up loud. Jacob stated that his father usually told him to do this when his parents would ...

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