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People v. Sevedo

Court of Appeals of Illinois, First District, Fifth Division

March 24, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ALEJANDRA SEVEDO, Defendant Sarah's Inn and Carol Gall, as Executive Director of Sarah's Inn, Contemnors-Appellants.

         Appeal from the Circuit Court of Cook County. Nos. 14 CR 16278 ACC 150213 The Honorable Charles P. Burns, Judge Presiding.

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justice Hall concurred in the judgment and opinion. Presiding Justice Gordon specially concurred, with opinion.

          OPINION

          LAMPKIN JUSTICE

         ¶ 1 Contemnors, Sarah's Inn and Carol Gall, its executive director, appeal civil and criminal contempt orders entered against them based on their refusal, pursuant to the statutory privilege for domestic violence advocates and victims, to produce documents for in camera judicial review. Sarah's Inn is a domestic violence advocacy center and was providing services to defendant Alejandra Sevedo, who had been charged with armed robbery. During that trial, defendant allegedly made statements to a Sarah's Inn advocate that threatened to harm one of the State's witnesses, a police detective. The advocate disclosed the statements to the police pursuant to an exception to the advocate-victim privilege for imminent risks of serious bodily harm or death.

         ¶ 2 Later, defendant was indicted for threatening a public official based on the disclosed statements, and the State eventually served a subpoena on Sarah's Inn to produce documents generated in connection with the report of defendant's threatening statements. Sarah's Inn moved to quash the subpoena based on the privilege for confidential communications between domestic violence advocates and victims pursuant to section 227 of the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/227 (West 2014)). The circuit court ordered Sarah's Inn to produce the documents for in camera review, but Sarah's Inn and Gall refused. The circuit court held them in direct civil and criminal contempt but stayed the imposition of the fine pending the outcome of this appeal.

         ¶ 3 On appeal, contemnors argue (1) the circuit court erred by denying their motion to quash because the subpoenaed documents are protected by the section 227 advocate-victim privilege, which is absolute and does not allow a court to conduct an in camera review, (2) res judicata precludes the State from contesting whether defendant's statements to the advocate were absolutely privileged and remained privileged despite the advocate's disclosure pursuant to the imminent risk exception, and (3) the contempt findings and fine should be vacated based on contemnors' good-faith assertion of the advocate-victim privilege.

         ¶ 4 For the reasons that follow, we reverse the circuit court's order that denied the motion to quash the subpoena and required Sarah's Inn to submit the documents for in camera review. We also vacate the contempt fine imposed on Sarah's Inn and Gall.

         ¶ 5 I. BACKGROUND

         ¶ 6 Defendant and her then boyfriend were arrested in connection with a 2013 armed robbery. Defendant allegedly was in an abusive relationship with the boyfriend and underwent counseling with a domestic violence advocate employed by Sarah's Inn. The State charged defendant with armed robbery, and the Sarah's Inn advocate accompanied her to court appearances as part of the agency's counseling services. Defendant's boyfriend was not charged in that matter.

         ¶ 7 When the bench trial commenced against defendant, a Chicago police detective testified as a witness for the State on July 28, 2014. That afternoon, defendant made statements to the Sarah's Inn advocate that allegedly threatened the detective and his family. The advocate later reported defendant's statements to the police pursuant to section 227(b)(2) of the Act, which allows domestic violence counselors or advocates to disclose any confidential communication without the written consent of the domestic violence victim "in cases where failure to disclose is likely to result in an imminent risk of serious bodily harm or death of the victim or another person." 750 ILCS 60/227(b)(2) (West 2014).

         ¶ 8 Defendant ultimately was acquitted of armed robbery in August 2014, but a complaint was filed concerning her alleged threat to harm the detective. The grand jury issued a subpoena to the Sarah's Inn advocate to appear before the grand jury on September 8, 2014, to testify concerning the complaint. Sarah's Inn moved to quash the grand jury subpoena, arguing that defendant's statement to the advocate was a privileged communication between a domestic violence advocate and victim. Sarah's Inn asserted the statement at issue constituted a confidential communication under section 227 of the Act because it was "any communication between an alleged victim of domestic violence and a domestic violence advocate or counselor in the course of providing information, counseling, or advocacy." 750 ILCS 60/227(a)(3) (West 2014). Sarah's Inn also argued the advocate's disclosure to the police of defendant's statement based on an imminent risk of serious bodily harm to the detective had no effect on the privilege, which defendant never waived.

         ¶ 9 After hearing argument on September 8, 2014, the circuit court granted the motion to quash the grand jury subpoena. The court found the communication the advocate received from defendant was privileged, the advocate acted properly when she notified the police, the notification to the police dissipated the imminent risk of serious harm, defendant never waived the privilege, and the privilege must be deemed intact so that victims of domestic violence will feel secure to discuss their situations with their advocates and counselors.

         ¶ 10 On September 16, 2014, the grand jury indicted defendant for threatening a public official, alleging defendant knowingly and indirectly conveyed a threat that would put the detective or his immediate family in reasonable apprehension of bodily harm when defendant threatened that she knew the detective's address and that he was married and had two children, and she was going to hurt the detective and had a plan to do so. Moreover, defendant conveyed the threat because of the detective's performance of his public duty.

         ¶ 11 In October 2014, the State issued a subpoena duces tecum to Sarah's Inn for "[a]ny and all incident reports or documents [in Sarah's Inn's possession or control that were] generated in connection to the report of threats made about a Chicago Police Detective by [defendant] on or about July 28, 2014 reported under Chicago Police RD #HX364192 and communicated to [the domestic violence advocate]."

         ¶ 12 Sarah's Inn and Gall moved to quash the subpoena, arguing the issue was res judicata based on the court's September 8, 2014, ruling on the grand jury subpoena. They also argued that section 227 of the Act protected communications between domestic violence advocates and victims from disclosure, the privilege remained intact despite the advocate's disclosure under the imminent risk of serious harm exception, there was no evidence defendant waived the privilege, and federal statutes and regulations required Sarah's Inn to maintain the confidentiality of a client's records.

         ¶ 13 In response, the State conceded that the advocate involved in this matter met the definition in section 227(a)(2) of the Act (750 ILCS 60/227(a)(2) (West 2014)) of a domestic violence advocate. However, the State argued Sarah's Inn failed to establish that defendant made the statements to the advocate threatening the detective in the course of the client/advocate relationship. The State also argued that even if the statement was considered a confidential communication in a client/advocate context, the statement was subject to disclosure because it fell under the imminent harm exception of section 227(b)(2) of the Act.

         ¶ 14 In April 2015, the court found that the September 8, 2014, ruling quashing the grand jury subpoena did not preclude the State, after defendant was charged, from litigating whether the advocate's testimony about the threat and any related documents were protected from disclosure by the advocate-victim privilege. The court ordered Sarah's Inn to provide the documents to the court for an in camera inspection to determine whether the documents were protected from discovery by the privilege.

         ¶ 15 In May 2015, Sarah's Inn moved the court to reconsider, arguing the statements were made within the scope of the domestic violence advocate-victim relationship because the advocate accompanied defendant to court in the armed robbery case in the course of providing information, counseling, and advocacy and, thus, the statements were protected from disclosure by the unbroken absolute privilege. Sarah's Inn also argued that section 227 did not provide for any in camera inspection of the documents.

         ¶ 16 In July 2015, the court ordered Sarah's Inn to provide the documents for in camera review, and then the court would rule on the motion to reconsider.

         ¶ 17 In August 2015, Sarah's Inn refused to provide the documents, asserting the court was not allowed to conduct an in camera inspection of the documents to determine whether the advocate-victim privilege applied. After much discussion, Sarah's Inn agreed to file the documents under seal with the office of the chief deputy clerk of the criminal court building, and no one would review the documents pending the appeal of this matter. Furthermore, the State stipulated that it would not prosecute Sarah's Inn or its representatives for producing the documents under seal pursuant to the court's order. The court denied Sarah's Inn's motion to reconsider, found Sarah's Inn guilty of contempt, and ...


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