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People v. Holloway

Court of Appeals of Illinois, Second District

December 6, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
THOMAS HOLLOWAY, Defendant-Appellant.

          Appeal from the Circuit Court of Du Page County. No. 15-CF-2148 Honorable Liam C. Brennan, Judge, Presiding.

          JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson and Burke concurred in the judgment and opinion.

          OPINION

          SCHOSTOK JUSTICE

         ¶ 1 After a jury trial, defendant, Thomas Holloway, was convicted of violation of bail bond (720 ILCS 5/32-10(a) (West 2014)) and was sentenced as a Class X offender (730 ILCS 5/5-4.5- 95 (West 2014)) to nine years' imprisonment. On appeal, he argues that he was denied a fair trial because his attorney-client privilege was violated. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 The indictment against defendant alleged that, on April 26, 2014, he was admitted to bail in case No. 12-CF-2466, a prosecution for unlawful delivery of a controlled substance; that, on August 25, 2015, his bond was forfeited;[1] and that he willfully failed to surrender himself within 30 days after the forfeiture.

         ¶ 4 The State moved in limine to admit the testimony of James Murphy-Aguilu, defendant's attorney in case No. 12-CF-2466. The motion alleged as follows. On August 25, 2015, Murphy-Aguilu appeared for trial. He told the court that he had spoken to defendant by telephone and defendant had said that he was in the parking lot. In the present case, the State planned to call Murphy-Aguilu to testify about his conversation and defendant's failure to appear that day. The attorney-client privilege did not bar this testimony, because defendant had not been seeking legal advice and his call was not related to any such purpose. Alternatively, the communication was within the crime-fraud exception to the privilege, because defendant was attempting to deceive Murphy-Aguilu, as he was not in the parking lot and never appeared for trial. ¶ 5 The State's motion attached a transcript from the August 25, 2015, hearing. Murphy-Aguilu was present for defendant, and Assistant State's Attorney Claudia Fantauzzo appeared for the State. The transcript read:

"[THE] COURT: Well, for the record, it's 11:35, and we're here for trial. If everyone can identify.
MS. FANTAUZZO: Claudia Fantauzzo for the People.
MR. MURPHY-AGUILU: James Murphy-Aguilu, Murphy hyphen A-g-u-i-l-u. Your [H]onor, I actually spoke with him about 20 minutes ago. He claimed to be in the parking lot. It would seem pretty impossible for him to be in the parking lot still. I don't know where he is.
THE COURT: Any luck reaching out to him since?
MR. MURPHY-AGUILU: The last call I just got a hangup [sic], so-
THE COURT: All right. Well, at this time a bond forfeiture and a no bond warrant will issue.
MS. FANTAUZZO: Thank you, [Y]our Honor.
THE COURT: And what is the judgment of forfeiture date?
MS. FANTAUZZO: 9/29.
THE COURT: Let's go to the 30th.
THE COURT: 9/30/15 for judgment on forfeiture.
MS. FANTAUZZO: Thank you, Judge.
THE COURT: All right. Thank you.
MR. MURPHY-AGUILU: Is there any possibility of doing a different date? My wife is actually due on the 28th, so-
THE COURT: Yes, sure there is.
MR. MURPHY-AGUILU: I'm going to be back here a week from that date, so the 7th?
THE COURT: That's fine.
MR. MURPHY-AGUILU: Just for a quick status.
THE COURT: All right. 10/7-
MR. MURPHY-AGUILU: Thank you.
THE COURT:-for judgment of forfeiture." (Emphasis added.) For convenience, we shall refer to the emphasized passage as the "parking-lot statement."

         ¶ 6 Defendant did not file a written response to the motion. At a hearing on the motion, the following colloquy ensued:

"MR. WIGELL [(DEFENDANT'S ATTORNEY)]: *** Conceptually, I have no difficulty with the State's motion, especially regarding the privilege, but we ...

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