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People v. Zimmerman

Court of Appeals of Illinois, Fourth District

March 31, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
KIRK P. ZIMMERMAN, Defendant-Appellee The Pantagraph, WGLT FM, and the Illinois Press Association, Intervenors-Appellants.

         Appeal from the Circuit Court of McLean County No. 15-CF-894; the Hon. Scott Daniel Drazewski, Judge, presiding.

          Donald M. Craven, of Donald M. Craven, P.C., of Springfield, for appellant.

          Jason Chambers, State's Attorney, of Bloomington (David J. Robinson, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          John P. Rogers, of Schwartz Rogers LLP, of Clayton, Missouri, for appellee Kirk P. Zimmerman.

          Panel PRESIDING JUSTICE TURNER delivered the judgment of the court, with opinion. Justices Holder White and Pope concurred in the judgment and opinion.

          OPINION

          TURNER, PRESIDING JUSTICE

         ¶ 1 Pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2016), intervenors-the Pantagraph, WGLT FM, and the Illinois Press Association-appeal the McLean County circuit court's January 3, 2017, order denying the intervenors' request to open for public inspection the fourth and fifth motions in limine filed under seal by criminal defendant, Kirk P. Zimmerman. On appeal, the intervenors contend the circuit court erred by finding the presumption of public access to judicial documents did not apply to the documents at issue. We reverse and remand for further proceedings.

         ¶ 2 I. BACKGROUND

         ¶ 3 In this case, the supporting record is scant, and thus this court has very limited facts. Notably, we lack the documents at issue.

         ¶ 4 According to defendant's pleadings, the State charged him with the first degree murder of Pamela Zimmerman, his former spouse. In October 2016, defendant filed a motion for leave to file motions in limine under seal. The document referred to the motions at issue as his fourth and fifth motions in limine. Defendant noted his fourth and fifth motions in limine sought to exclude the admission of evidence that was sensitive, private, and/or inflammatory about himself and others who may be called as witnesses or who are otherwise connected to him. According to defendant, given the high level of media attention to his case, the evidence sought to be excluded would taint the jury pool if it became public and his right to a fair trial depended on the motions being sealed. Additionally, defendant noted he was prepared to provide the circuit court with advance copies of the motions at issue for an in camera examination in the event the court needed additional facts. Defendant also filed a motion to close the proceedings on the motions in limine.

         ¶ 5 In November 2016, the intervenors filed a petition to intervene and objections to defendant's motion to close the courtroom and to file the motions in limine under seal. The intervenors also filed a supporting memorandum of law. On November 21, 2016, defendant filed a response to the intervenors' petition. On that same day, the circuit court entered an order, granting defendant leave to file his fourth and fifth motions in limine. The order further stated the following: "Documents are filed for 90 days. The documents shall not be unsealed up to and until the court orders the same."

         ¶ 6 On December 22, 2016, the circuit court held the hearing on defendant's fourth and fifth motions in limine. An excerpt of the hearing is included in the supporting record. The court noted at the beginning of the hearing that it had allowed the intervenors' petition to intervene at an earlier court date. At the hearing, it was noted that the State did not intend to raise the matters addressed in defendant's fourth and fifth motions in limine in its case in chief. Defendant withdrew his motion asking to seal the courtroom, leaving the continued sealing of the fourth and fifth motions in limine as the only remaining contested matter. Defendant requested the motions continue to be sealed until the jury in his case was impaneled. The State took no position on the continued sealing of the motions. After hearing the parties' arguments, the court allowed, without objection, defendant's fourth and fifth motions in limine. The court further ordered the fourth and fifth motions in limine to remain sealed until jury selection and noted any order in limine related to those motions would also be sealed. The court reasoned that the presumption of access did not apply to the motions in limine and ended its analysis with that conclusion.

         ¶ 7 On January 3, 2017, the circuit court entered a written order, granting the fourth and fifth motions in limine and ordering those motions to remain sealed until after the selection of a jury.

         ¶ 8 On January 19, 2017, the intervenors filed a timely notice of appeal in sufficient compliance with Illinois Supreme Court Rule 303 (eff. Jan. 1, 2015). See Ill. S.Ct. R. 307(a) (eff. Nov. 1, 2016) (providing "the appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal designated 'Notice of Interlocutory Appeal' conforming substantially to the notice of appeal in other cases"). Thus, this court has jurisdiction of this appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2016). See Skolnick v. Altheimer & Gray, 191 Ill.2d 214, 221, 730 N.E.2d 4, ...


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