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People v. Garner

Court of Appeals of Illinois, First District, Sixth Division

August 5, 2016

PATRICE GARNER, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 06 CR 8607 Honorable Brian Flaherty, Judge Presiding.

          JUSTICE DELORT delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Hoffman concurred in the judgment and opinion.



         ¶ 1 Defendant Patrice Garner was convicted of murdering her six-year-old daughter, Kierra Garner, and sentenced to 35 years' imprisonment. In this appeal, defendant argues that she is entitled to a new trial because the trial court improperly (1) excluded expert testimony regarding her psychological make-up, (2) permitted testimony regarding communications between her husband and her, in contravention of the Illinois spousal privilege statute, and (3) permitted another witness to testify about statements made by her mother that incriminated her. We affirm.

         ¶ 2 BACKGROUND

         ¶ 3 In April 2006, defendant was charged by indictment with four counts of first degree murder stemming from the death of her daughter, Kierra Garner. 720 ILCS 5/9-1(a)(1), (a)(2) (West 2006). The gist of the indictments was that defendant knowingly and intentionally caused Kierra to ingest an antidepressant that resulted in her death. The State's theory of the case was that defendant tried to kill herself and Kierra after defendant's husband told her that he wanted a divorce. Under the State's theory, defendant carried out her plan by administering an overdose of amitriptyline, an antidepressant she had been prescribed for migraine headaches, to Kierra and herself.

         ¶ 4 Before trial, defendant hired Dr. Bruce Frumkin, a clinical psychologist, to evaluate her sanity. Dr. Frumkin interviewed defendant and, in April 2009, authored a three-page report memorializing his findings. The report is not contained in the record, but defense counsel summarized Dr. Frumkin's report for the trial court during an April 20, 2009, hearing:

"THE COURT: What's the basis of his opinion? What's the opinion saying? Just briefly.
[Defense counsel]: Just briefly, Judge, two things. One, he's saying that he concluded that the defendant was not feigning amnesia when she couldn't remember; and, two, that her personality traits were not such that it would-a potential break up with her husband would cause her to commit suicide and also take the life of her daughter."

         ¶ 5 On March 23, 2010, the State filed a motion in limine seeking to preclude defendant from introducing Dr. Frumkin's opinion testimony on the basis that it constituted inadmissible character evidence. The State argued in the alternative that the court should conduct a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to determine whether "Dr. Frumkin's theory that a person could not have committed a murder because murder is not within her personality, is a generally accepted theory in the psychological community."

         ¶ 6 On March 24, 2010, the court held a hearing on the State's motion. The court noted that Dr. Frumkin's report did not contain any "opinion as to what Dr. Fromkin [sic] is going to testify to" and advised the parties that it needed a written statement from Dr. Frumkin before it could rule on the State's motion. Thus, on March 29, 2010, Dr. Frumkin authored a one-page letter summarizing the findings contained in his April 2009 report. A copy of the March 2010 letter was tendered to the trial court. In the letter, Dr. Frumkin stated:

"I understand the court desires some clarification of my opinion expressed in my April 9, 2009 three-page letter to you. It is my opinion with a high degree of psychological certainty that Ms. Garner was not attempting to exaggerate or feign memory impairment or amnesia regarding events immediately leading up to her hospitalization and subsequent arrest. ***
In addition, it is my opinion with a high degree of psychological certainty that Ms. Garner was not a needy or dependent individual whose self-esteem or contentment with life was connected to the strength of her relationship with her husband. It would be unlikely that she would have been so depressed with her husband's infidelities that she would try to kill herself and her child. By all means, I am not indicating that she did or did not commit the offenses for which she is charged. Rather, in assessing motive for the alleged offense, this information may be relevant for a jury to consider."

         ¶ 7 On April 12, 2010, the court held another hearing on the State's motion. The State reiterated its view that Dr. Frumkin's opinion constituted inadmissible character evidence. Defendant argued that the testimony was admissible to rebut the State's evidence regarding defendant's motive. In response, the court stated:

"[I]t seems to be that Dr. Frumkin is putting in character evidence. He's basically saying *** that [defendant] doesn't have the character, based on her-she wasn't the type of person based on herself [sic] esteem or contentment with life that she would commit these crimes, and I think that's what it comes in to. It's coming in as character evidence and you can call it whatever you want because he even says here, I'm not saying she did or didn't do it, I'm just saying that 'she doesn't have the character to commit this act based on her-any self esteem issues that she may have.' "

         The court ultimately granted the State's motion, stating "I believe under Illinois law, it's not allowed. I may be wrong."

         ¶ 8 In April 2012, defendant filed a motion in limine seeking to preclude the State from eliciting testimony from Grady Garner, defendant's husband, regarding telephone conversations between defendant and Grady in the hours immediately before the time when defendant allegedly killed Kierra and attempted to commit suicide. During the conversations, Grady allegedly told defendant that he wanted a divorce. In her motion, defendant, citing section 8-801 of the Code of Civil Procedure (735 ILCS 5/8-801 (West 2012)), claimed that the contents of these conversations were shielded by Illinois's spousal privilege statute. In response, the State argued that the conversations were not privileged because they fell within a statutory exception to the privilege for cases "where the custody, support, health or welfare of [the spouses'] children or children in either spouse's care, custody or control is directly in issue." Id. The court denied the motion on September 6, 2012, stating, "I think there is-this falls within the exception of the disqualification regarding where the interest of child or children is affected."

         ¶ 9 On March 10, 2014, defendant filed a motion in limine seeking to bar the State from eliciting alleged hearsay testimony from other witnesses regarding statements that defendant's mother, Princess Oden, made to paramedics responding to Oden's 9-1-1 call. Immediately before trial, the State explained that it would elicit testimony from Jack Daley, a responding paramedic, to the effect that (1) Oden told Daley when he arrived that she was "the grandmother or mother, " (2) Daley told Oden that Kierra was dead but defendant was still alive and asked Oden whether there was anything the paramedics could give defendant, and (3) Oden said in response "she killed the baby." After the State's proffer, the court denied defendant's motion, stating "[t]hat will be allowed."

         ¶ 10 At trial, Grady testified that he was a traveling anesthesiologist admitted to practice in Arizona and California. On January 1, 2006, Grady left for a business trip to California. On January 5 at around 2:20 a.m., Grady received a phone call from defendant. During the 20-minute conversation that ensued, Grady and defendant discussed their relationship. Grady told defendant that the relationship "had run its course" and that their "marriage was ending." Defendant hung up and called back "right away." According to Grady, during the second call, which lasted approximately 45 minutes, defendant expressed a desire to work through her and Grady's problems. Grady made it clear to defendant that their marriage was "pretty much over" and that they were going to get a divorce. Defendant hung up again and called back a short ...

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