from the Circuit Court of McLean County No. 15CF894 Honorable
Scott Drazewski, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with
opinion. Justices Holder White and Knecht concurred in the
judgment and opinion.
1 In July 2015, a grand jury indicted defendant, Kirk
Zimmerman, for the first degree murder (720 ILCS 5/9-1(a)(1)
(West 2014)) of defendant's ex-wife, Pamela Zimmerman.
The State later filed two motions in limine that
sought to (1) introduce identification testimony pursuant to
section 115-12 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/115-12 (West 2016)) and Illinois Rule of
Evidence 801(d)(1) (eff. Oct. 15, 2015) and (2) introduce
statements by Pamela under the doctrine of forfeiture by
wrongdoing. See Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011).
Defendant subsequently filed his own motions in
limine to exclude the same evidence the State sought to
2 The trial court first took up the identification testimony
and conducted a hearing over multiple days in March and April
2017, at which several witnesses testified. Following the
hearing, the court granted the State's motion in part,
ruling that only one of the State's witnesses could
testify as to a prior identification.
3 Over five days in May 2017, the trial court conducted a
hearing, at which several witnesses testified on the issue of
forfeiture by wrongdoing. In July 2017, the court issued a
written order finding defendant killed Pamela with the
intention of preventing her from testifying. However, the
court deemed only two oral statements and one set of
documents admissible pursuant to the forfeiture by wrongdoing
doctrine. The court excluded all other proposed statements
because they were "not probative of any material fact;
irrelevant; speculative; remote; improper lay opinion;
lack[ed] *** personal knowledge; cumulative; improper
character evidence; and/or the probative value of the
evidence [was] substantially outweighed by its prejudicial
effect." Despite so ruling, the court noted the State
could still seek to introduce the evidence at trial.
4 In August 2017, the State filed two motions to reconsider
each of the trial court's rulings. The State argued the
court applied the wrong standards in evaluating the evidence
and unduly restricted the State's ability to present its
case. Alternatively, the State requested the court explain
with specificity why the court believed certain statements
were inadmissible so the State could address the court's
concerns before again seeking the statements' admission
at trial. The State also explained that it wished to properly
structure its case so as to prevent an inadvertent violation
of the order in limine and a mistrial. The court
denied the motions to reconsider. The State filed an
5 The State appeals, arguing that the trial court erred by
(1) granting its motions in limine only in part and
(2) deeming inadmissible certain prior identification
testimony and certain statements under the doctrine of
forfeiture by wrongdoing. We disagree and affirm.
6 I. BACKGROUND
7 The following testimony and documentary evidence were
presented to the trial court at the hearings on the motions
8 A. The Underlying Murder and Initial Investigation
9 Sometime on the evening of November 3, 2014,
defendant's ex-wife, Pamela Zimmerman, was murdered in
her office in an area of Bloomington, Illinois, commonly
known as Doctors Park. On November 4, 2014, at approximately
7:30 a.m., her body was discovered by Ina Hess, Pamela's
secretary. Pamela had been shot multiple times, including
once in the head. Investigators did not discover anything of
significant value missing from the office. Pamela's
wallet was eventually located several streets from the office
in a ditch, but the wallet contained cash and all of her
credit cards. Her cellular phone was also found several
10 Later that day, investigators approached defendant at
State Farm Insurance Company where he worked and, after
informing him of Pamela's death, asked him to come to the
police station for an interview. He complied, and the police
interviewed him for approximately six hours but ultimately
released him. The police interviewed him several times in the
following days but did not arrest him for the murder. The
investigation continued for several months. In July 2015, a
grand jury indicted defendant for first degree murder.
11 B. The Identification Testimony Motions and Proceedings
12 1. Defendant's Motion To Suppress
13 In September 2016, defendant filed a motion to suppress
identification. Although the trial court ultimately granted
that motion in part, that ruling is not at issue in this
appeal. Nonetheless, the testimony presented at the hearing
on that motion is pertinent to this appeal.
14 Defendant sought to suppress the identification of
defendant by Mrs. Maria Legg. Defendant argued the photo
lineup at which Mrs. Legg identified defendant was
impermissibly suggestive. Defendant further contended Mrs.
Legg's testimony was inherently unreliable.
15 The trial court conducted a hearing on the motion on three
separate days in March and April 2017. Bloomington Detective
Tim Power testified about the police investigation of the
death of Pamela Zimmerman. Power stated the police received
an anonymous tip in March 2016 that someone may have seen
defendant at the scene of the crime on the night of the
murder. The tip led police to Ron and Annis Guenther, who
informed them about a meeting they had with Maria and Charles
Legg at a Hardee's restaurant in the fall of 2015. During
that meeting, Mrs. Legg informed them she had seen defendant
in the Doctors Park parking lot on November 3, 2014, and
recognized him when his picture was printed in the newspaper
following his July 2015 arrest.
16 Later in March 2016, Power interviewed the Leggs in their
home and administered a photo lineup via a computer program.
Both the interview and the lineup were recorded and reviewed
by the court. During the interview, Mrs. Legg described (1)
what she saw on November 3, 2014, (2) her identification of
defendant as the man she saw on that night from a picture in
the newspaper, and (3) her conversation with the Guenthers
and her husband at the Hardee's regarding both of these
events. Power testified that following the interview, Mrs.
Legg viewed a photo lineup and indicated she believed the
first photo was the man she saw. The first photo was
defendant and was the same photo published in the local
newspaper on numerous occasions.
17 Mrs. Legg testified she was dropping off recycling at St.
Luke Union Church around 6 p.m. on November 3, 2014. The
church shares a parking lot with Doctors Park. Mrs. Legg
testified she saw a man exiting the rear of what was later
identified as Pamela's office. The man was tightly
holding a black garbage bag and stared directly at her. Mrs.
Legg stated she was scared because she was alone, but she
looked right at the man. The parking lot was well-lit, and
the man eventually walked in her direction, but before
reaching her, he stopped at a car parked under a light post.
He put the garbage bag in the car's trunk before getting
in the car. As Mrs. Legg then exited the parking lot, she
drove past the man as he sat in his car. The next day, she
saw in the newspaper that a murder occurred in Doctors Park.
She called her husband, who was out of town, and told him
what had happened. She asked him if she should talk to the
police. Her husband said she should not because the man might
come after them.
18 Months later, Mrs. Legg saw a photo of defendant in the
newspaper and recognized him as the man she saw on the night
of the murder. (The trial court took judicial notice of the
fact that the first time defendant's picture was
published in the newspaper was July 22, 2015.)
19 Mrs. Legg further testified that sometime thereafter, she
and her husband met the Guenthers at a fast-food restaurant,
and she informed both of them about what she saw on the night
of the murder. She also told them she subsequently identified
defendant as the man she saw from his photo in the newspaper.
Mrs. Legg also testified about the police interview and photo
lineup. Additionally, Mrs. Legg made an in-court
identification of defendant.
20 Annis Guenther testified she and her husband sometimes met
the Leggs at a Hardee's. They did not socialize with the
Leggs outside of that setting. Mrs. Guenther testified that
on one particular occasion, likely in the fall of 2015, Mrs.
Legg was very upset and told them what she had seen on
November 3, 2014. Mrs. Legg also told them about recognizing
defendant after seeing his picture in the newspaper. Mrs.
Guenther stated she did not tell the police but did share the
information with others.
21 Charles Legg testified that in early November 2014, his
wife called him upset because she had seen a strange man
while dropping off recycling at St. Luke Union Church. He
added that she later recognized the man when his picture was
published in the newspaper. Mr. Legg also testified about
seeing the Guenthers at Hardee's and that his wife
informed them of her experiences.
22 After the hearing, the trial court ruled Mrs. Legg's
identification of defendant from the photo lineup was
inadmissible because it was impermissibly suggestive.
However, the court found Mrs. Legg had a sufficient
independent recollection to render her in-court
23 2. The State's Motion in Limine To Admit
Statements of Identification
24 In May 2017, the State filed a motion in limine
to admit statements of identification pursuant to section
115-12 of the Code (725 ILCS 5/115-12 (West 2016)) and
Illinois Rule of Evidence 801(d)(1)(B) (eff. Oct. 15, 2015).
The State sought a ruling that testimony at the hearing on
the motion to suppress identification from Charles Legg,
Annis Guenther, and Ron Guenther that Maria Legg identified
defendant as the man she saw on November 3, 2014, was
admissible. The State argued that testimony from Charles Legg
that Mrs. Legg identified defendant upon seeing him in the
newspaper and her later recitation of this event to the
Guenthers both constituted statements of identification and
were therefore admissible.
25 Defendant filed a response, arguing the proposed witnesses
lacked "personal knowledge of the circumstances of ***
identification, " and were merely informed of the
identification after the fact. Accordingly, defendant argued,
the testimony would be cumulative, unhelpful, and constitute
26 In August 2017, the trial court ruled that Charles Legg
could testify as to the identification made by Mrs. Legg when
she saw defendant's photo in the newspaper, but the
Guenthers could not testify regarding the conversation at
Hardee's. The court indicated that it found the Guenthers
"were merely individuals who would be able to repeat
what someone said[, ]" and their testimony would merely
be repetitive of Mr. and Mrs. Leggs' testimony. The court
described a hypothetical in which Mrs. Legg recounted her
identification to a crowded theater and explained that the
State could not call all those witnesses to testify to the
same event because it would be cumulative. Because the court
concluded that the Guenthers' testimony would not be
helpful to the trier of fact in deciding what weight to give
the statements of prior identification, the court excluded
27 C. The Forfeiture by Wrongdoing Motions and Proceedings
28 1. The Motions in Limine
29 In March 2017, the State filed a motion in limine
to admit certain hearsay statements of Pamela pursuant to the
common-law doctrine of forfeiture by wrongdoing and Illinois
Rule of Evidence 804(b)(5). The State later filed several
additional motions that added additional statements for
admission on the same grounds.
30 In total, the State sought to introduce more than 40
statements from 16 witnesses and approximately 20 pages of
documents. The proposed statements were from as far back as
2010 and as recent as the day of the murder.
31 In its motions, the State listed each specific statement
to which it anticipated each witness would testify. Most of
the statements dealt with the relationship between Pamela and
defendant, particularly their 2012 divorce, 2013 child
support enforcement proceedings, and anticipated enforcement
proceedings in 2014. Others dealt with Pamela's fear or
suspicion of defendant and what he might do to her over
money, his retirement, and her recent engagement. The
statements will be discussed only as necessary.
32 Defendant filed a written response to the State's
motion, and the State subsequently amended its motion and
filed a written response to defendant's response. On July
5, 2017, after the trial court had conducted evidentiary
hearings, the State filed written arguments in support of its
33 On July 10, 2017, defendant filed a motion in
limine to exclude the State's proposed statements.
Defendant argued that the State failed to meet its burden
that he murdered Pamela with the intent of preventing her
from testifying at a future proceeding. Defendant
additionally asserted that even if forfeiture by wrongdoing
applied, the statements were still inadmissible because they
were irrelevant, speculative, remote, and substantially more
prejudicial than probative.
34 2. The Forfeiture by Wrongdoing Testimony
35 Over five days in May 2017, the trial court heard
testimony on the State's motion in limine in
order to determine if (1) defendant murdered Pamela and (2)
he did so with the intent to make her unavailable as a
witness. See Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011). The
court took judicial notice of the identification testimony
and evidence submitted at prior hearings in this case as well
as the records in the McLean County divorce case between
Pamela and defendant. The parties stipulated to the admission
of numerous exhibits, including crime scene and investigation
photographs, autopsy reports, gunshot residue reports, cell
phone records, witness interview recordings (including
defendant's prior interviews), and various other
36 At the hearing, the State's theory was that defendant
killed Pamela, in part, because she had recently decided to
take him back to court to recover his half of certain child
care expenses, and her doing so would interfere with
defendant's ability to retire as scheduled. The evidence
presented showed Pamela sent defendant a letter in October
2014, explaining that he owed $4000 in child care expenses
and warning that if he did not pay, she would institute legal
proceedings to recover the money. The letter included a
spreadsheet itemizing the expenses. Other evidence showed the
letter was sent via FedEx, and defendant signed for it in
late October. In his interview with police the day after the
murder, defendant discussed a FedEx document with police
while describing his relationship with his ex-wife and their
37 The State presented extensive testimony from Pamela's
friends, neighbors, and clients as to particular statements
Pamela made. Several friends testified that during and after
the divorce, Pamela had said various versions of the
following statement: "[i]f anything happens to me, Kirk
did it." Others testified that Pamela had expressed
concern over how defendant would react when he found out she
had gotten engaged. The evidence showed she got engaged just
a few days before she was killed. Still others testified as
to statements made by Pamela before, during, and after the
divorce concerning her fear of what defendant might do to her
and statements made by defendant to Pamela about the divorce
and child support.
38 Kathleen Kraft testified extensively concerning the 2012
divorce proceedings and the 2013 enforcement proceedings.
Kraft testified she was Pamela's attorney during this
time period and explained that defendant's pension was an
overriding issue in the divorce proceedings and something she
discussed frequently with Pamela. Pamela repeatedly stated
that defendant wanted to retire at age 55, and if she
interfered with that, she was afraid of what he might do to
her. Kraft advised Pamela she was entitled to half of
defendant's pension, but following mediation, the parties
agreed defendant would keep 100% of his pension.
39 Kraft testified that she initiated enforcement proceedings
in early 2013 against defendant at Pamela's request when
defendant was not paying his share of child support. Pamela
again expressed concern and fear about what defendant would
do to her if enforcement proceedings interfered with his
retirement. The trial court in those proceedings eventually
found defendant in contempt and garnished his wages.
40 Kraft stated she spoke with Pamela in the fall of 2014,
when Pamela advised her that defendant was again not paying
his share of child support. Kraft advised her to send him a
letter demanding payment and suggested if he did not comply,
they would start enforcement proceedings again. On November
3, 2014, Pamela called Kraft and said she sent defendant the
letter, he had not responded, she wished to start enforcement
proceedings, and she wanted to know how much the retainer
41 Marla Knuckey testified she considered Pamela to be one of
her best friends. The two met while their daughters were in
volleyball together and frequently saw each other at games
and tournaments. Sometime after the divorce at one of those
games, Pamela told Knuckey that defendant was angry because
the two were going back to court over child support. Pamela
stated that defendant said he should not have to pay the
amount she was seeking because she made more money than he
did. Pamela also reported to Knuckey that defendant told her
she was ruining his life with these proceedings because he
was not going to be able to retire. According to
Knuckey's testimony, defendant said "he thought that
[Pamela] was going to, basically, use up all of his
retirement money if he had to pay for all of this and he
would not be able to retire."
42 Knuckey testified that in the fall of 2014, a few weeks
before Pamela died, Pamela indicated she was worried about
how defendant would react when he found out she was engaged.
Knuckey could not remember the setting of this conversation,
but she testified that in October 2014 she attended a Big 12
Conference volleyball tournament in Champaign with Pamela. At
that time, Pamela indicated she and defendant had gotten into
an argument, but Knuckey could not remember any specifics.
Knuckey did recall that Pamela told her at that time that
"[i]f anything happens to me, you know who did it,
" referring to defendant.
43 During Knuckey's testimony, defendant frequently
objected to her representations of Pamela's statements
because he believed she was paraphrasing and that the
testimony was "speculative." The State replied that
reliability was not an issue with respect to statements under
the forfeiture by wrongdoing doctrine. The court admonished
Knuckey that " 'I believe' doesn't cut it,
" and to be as specific as possible to the best of her
44 Throughout the hearing, a pattern emerged. Witnesses would
testify as to statements they remembered, defendant would
object and argue the statements were speculative, and,
occasionally, the court would admonish the witness to be as
specific as possible. Eventually, the witnesses were asked by
the State and the court to testify as to Pamela's exact
statements in the first person.
45 The State also presented evidence that a car similar to
defendant's vehicle could be seen on surveillance camera
footage in the parking lot of Pamela's office complex on
the day of the murder. A forensic report showed ...