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People v. Zimmerman

Court of Appeals of Illinois, Fourth District

June 18, 2018

KIRK ZIMMERMAN, Defendant-Appellee.

          Appeal 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 introduce.

         ¶ 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 interlocutory appeal.

         ¶ 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 in limine.

         ¶ 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 streets away.

         ¶ 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 identification admissible.

         ¶ 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 improper bolstering.

         ¶ 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 that testimony.

         ¶ 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 motion.

         ¶ 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 documents.

         ¶ 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 financial disagreements.

         ¶ 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 would be.

         ¶ 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 recollection.

         ¶ 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 ...

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