from the Circuit Court of McLean County, No. 14-L-51; the
Hon. Richard L. Broch, Judge, presiding.
Attorneys for Appellant: David M. Shapiro and Locke E.
Bowman, of Roderick and Solange MacArthur Justice Center, and
Jeffrey Urdangen, of Bluhm Legal Clinic, both of Northwestern
Pritzker School of Law, of Chicago, for appellant.
Attorneys for Appellee: Thomas G. DiCianni, of Ancel Glink
P.C., of Chicago, for appellees.
Curiae: Arthur Loevy, Jon Loevy, Steven Art, and Alison R.
Leff, of Loevy & Loevy, of Chicago, for amici curiae
former prosecutors Stuart Chanen et al. Tamara L. Cummings,
of Western Springs, Bruce Bialorucki, of Springfield, Dan
Hassinger, of Decatur, and Pasquale A. Fioretto, of Baum
Sigman Auerbach & Neuman, Ltd., of Chicago, for amici
curiae Illinois FOP Labor Council et al. Mark A. Flessner,
Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam
Zreczny Kasper, and Elizabeth Mary Tisher, Assistant
Corporation Counsel, of counsel), for amici curiae City of
Chicago et al.
JUSTICE KNECHT delivered the judgment of the court, with
opinion. Justices Steigmann and Harris concurred in the
judgment and opinion.
1 In 2008, the Supreme Court of Illinois overturned
plaintiffs conviction for the murder of his ex-girlfriend,
Jennifer Lockmiller, upon concluding the State violated his
right to due process when it failed to disclose material and
exculpatory information about an alternative suspect.
People v. Beaman, 229 Ill.2d 56, 890 N.E.2d 500
(2008). In April 2014, plaintiff initiated this action,
alleging defendants, Tim Freesmeyer, Dave Warner, and Frank
Zayas, former officers in the Normal Police Department, acted
maliciously in investigating him and in aiding in his
prosecution. Plaintiff asserted claims of malicious
prosecution, intentional infliction of emotional distress,
and conspiracy. Plaintiff requested damages from defendant,
the Town of Normal, on theories of respondeat
superior and indemnification.
2 In June 2016, the trial court, finding no genuine issue of
material fact as to plaintiffs claims of malicious
prosecution, granted defendants' motion for summary
judgment. Plaintiff appealed, arguing, in part, a reasonable
jury could find in his favor on each of the elements of its
malicious-prosecution claim. We affirmed, concluding the
trial court properly found no genuine issue of material fact
existed on the first element of malicious prosecution-the
commencement or continuance of an original criminal or civil
judicial proceeding by the defendants.
3 In February 2019, the Supreme Court of Illinois reversed
our decision. The court concluded our review of the
aforementioned element was improperly limited. The court
remanded, directing this court to determine "whether the
defendants' conduct or actions proximately caused the
commencement or continuance of the original criminal
proceeding by determining whether defendants played a
significant role in [plaintiffs] prosecution."
Beaman v. Freesmeyer, 2019 IL 122654, ¶ 47.
4 On remand, we have considered the "significant
role" test as set forth in Beaman, 2019 IL
122654, ¶ 45, and affirm the summary judgment order.
5 I. BACKGROUND
6 Before summarizing the facts of this case, we note both
sides of this dispute have hindered this court's ability
to verify the facts set forth in the briefs. The parties,
defendants more so, repeatedly failed to provide specific
cites to the record to support their claims, thereby asking
this court to perform appellate counsels' briefing
duties. See Ill. S.Ct. R. 341(h)(6) (eff May 25, 2018)
(requiring the statement of facts contain "appropriate
reference to the pages of the record on appeal"); see
also Maun v. Department of Professional Regulation,
299 Ill.App.3d 388, 399, 701 N.E.2d 791, 799 (1998)
("Strict adherence to the requirement of citing relevant
pages of the record is necessary to expedite and facilitate
the administration of justice."). In the appellee brief,
defendants routinely cited the first page of a deposition,
instead of the page on which the support for the alleged fact
may be found. By doing so, defendants ask this court to
review hundreds of pages of deposition testimony to find the
one or two pages containing specific facts in support of
their defense. Both sides cited their statements of material
facts filed in the trial court without providing citations to
the appellate record for this court to verify those facts.
7 In addition, plaintiffs statement of facts is rife with
argument and conclusions in violation of Illinois Supreme
Court Rule 341(h)(6) (eff. May 25, 2018) ("Statement of
Facts *** shall contain the facts necessary to an
understanding of the case, stated accurately and fairly
without argument or comment ***."). For example,
headings in plaintiffs statement of facts include
"Freesmeyer Delivers the Indictment and
Conviction," "Defendants Ignore a Witness who
Exonerates Beaman," and "Warner Hides
8 In our attempt to summarize the evidence in this case, we
rely primarily on the facts provided in the published cases
on this matter. We also include facts that are readily
verifiable, but we have not fulfilled appellate counsels'
duties by using judicial resources to search the voluminous
record to find support for every alleged fact.
9 A. Lockmiller's Murder and the Investigation
10 On August 28, 1993, the body of Lockmiller, a 21-year-old
student at Illinois State University, was found in her
Normal, Illinois, apartment. Lockmiller's shirt was
pulled up, exposing her breasts. Her shorts and underwear
were down around one of her legs. The electrical cord of an
alarm clock was around Lockmiller's throat. A pair of
scissors protruded from her chest. A box fan had been placed
over Lockmiller's face. A bag of trash, which may have
been taken from a trash can, was found on the living room
sofa. The kitchen sink was filled with dirty dishes. The book
bags and purse found on a table appeared closed and
undisturbed. The wallet contained $17.71 in cash. Both the
air conditioner and television were on. The apartment showed
no signs of forced entry. Lockmiller died from ligature
strangulation with the cord of the alarm clock. The
investigators found no one who had seen Lockmiller alive
after her class ended at 11:50 a.m. on August 25, 1993.
11 A number of police officers from the Town of Normal Police
Department (NPD) were involved in the investigation. These
officers included defendants: Freesmeyer, a detective,
Warner, a detective, and Zayas, a lieutenant. Early in the
investigation, starting in October or November 1993,
Freesmeyer served as the principal detective on the
investigation. Warner's role included serving as an
evidence custodian and investigating one of the suspects,
Stacey Gates. Zayas supervised the detectives who worked on
the investigation until he retired in November 1994. Other
individuals involved in the investigation included Charles
Reynard, the McLean County State's Attorney, and James
Souk, assistant state's attorney. Souk acted as the lead
prosecutor in plaintiffs criminal case.
12 Police officers focused the investigation on plaintiff
early in the case. Lockmiller's body was found by her
friend, Morgan Keefe (now Hartman). Hartman attempted to
contact Lockmiller for several days. Hartman went to
Lockmiller's apartment. She called the police upon
finding her body. Hartman told the police she knew "who
did it." Hartman reported Lockmiller was afraid of
plaintiff. She heard Lockmiller "say over and over and
over again that she was afraid" of him. Lockmiller also
reported to Hartman that plaintiff had broken down her door
and threatened suicide if she broke up with him. Hartman
"was aware" plaintiff "was possessive."
Hartman stated Lockmiller usually kept her apartment tidy.
13 While investigating plaintiff, the officers learned
plaintiff, a student at Illinois Wesleyan University, was
residing with his parents in Rockford, Illinois, at the time
of Lockmiller's murder. Rockford is approximately two
hours from Normal by car. Detectives learned plaintiff
occasionally sang and played guitar and saxophone for his
church youth group while home from college. He was scheduled
to rehearse on Wednesday, August 25, 1993, for the
performance the following Sunday. Plaintiff and the youth
pastor arranged that time as plaintiffs "parents were
14 Officers garnered information regarding plaintiffs and
Lockmiller's relationship. Plaintiff and Lockmiller began
a tumultuous relationship in July 1992. The two broke up and
rekindled the relationship 17 to 18 times. The relationship
ended about one month before the murder. Detectives learned
of a history of loud arguments. One argument ended when
plaintiff drank nail polish remover. According to letters
found in Lockmiller's apartment after her murder,
plaintiff wanted their relationship to be monogamous, but he
suspected Lockmiller saw other men. In the letters, plaintiff
expressed he loved her "more passionately than Romeo did
Juliet, more hopelessly than Ophelia did Hamlet, more
vengefully than Medea, Jason," and stated,
"Don't worry, I won't kill anybody, I don't
believe in that. I do unto others as I would have them unto
me (from now on)." Shortly before her death, Lockmiller
became involved with Michael Swaine, plaintiffs friend and
15 Lockmiller's apartment showed no sign of forced entry.
The police investigated individuals Lockmiller knew. The
police questioned Lockmiller's current boyfriend and
plaintiff s roommate, Swaine, as well as former boyfriends,
including plaintiff, Gates, and Larbi John Murray. Swaine had
an alibi. On August 25, 1993, the date the State concluded
Lockmiller was murdered, Swaine was working at a bookstore in
Elmhurst, Illinois. Gates, who had moved to Peoria to be
closer to Lockmiller, also had an alibi. Records from a
Peoria school showed Gates was at work on August 25.
16 The NPD officers learned Murray was Lockmiller's drug
dealer. Murray and Lockmiller had also been lovers. Murray
was twice interviewed by police. Initially, Murray reported
leaving town on August 24, 1993, a day before the murder.
Murray's girlfriend, Debbie Mackoway, however, told
police they did not leave town until the afternoon of August
25. Murray then amended his story and his version was
consistent with Mackoway's report. Murray informed
officers he was alone at home before 2 p.m. on August 25.
Murray resided 1.5 miles from Lockmiller. Murray had a
criminal history. He faced charges of drug possession with
intent to deliver and of domestic violence for the abuse of
Mackoway. According to Mackoway, Murray also began using
steroids and behaved erratically. Both cocaine and steroids
had been found in Murray's apartment. Murray agreed to
submit to a polygraph examination. At the start of the
examination, Murray failed to follow instructions. The
examiner terminated the examination.
17 Investigators interviewed David Singley, Lockmiller's
neighbor. Singley informed investigators he arrived home from
class at 2 p.m. on August 25 and heard someone slam the door
to Lockmiller's apartment. Singley stated he heard the
stereo, the door open and close a second time, and footsteps.
Singley also reported noticing, around 4:30 p.m., the stereo
was off and the television had been turned on.
18 Lockmiller's neighbors who lived directly below
Lockmiller told detectives they overheard fights between
Lockmiller and a man who drove a silver Ford Escort.
Plaintiff drove a silver/grey Ford Escort. The neighbors
recalled the fights occurred in January or February 1993.
John Revis, another individual interviewed by Freesmeyer,
reported once ripping off plaintiff during a drug deal.
19 In an August 28, 1993, interview by Freesmeyer of Swaine,
Swaine reported he and plaintiff were friends. They were
roommates for an unspecified time. Lockmiller and Swaine
started a relationship while Lockmiller and plaintiff
"were going out." Swaine reported plaintiff made
two holes in Lockmiller's apartment walls. Swaine also
reported the first time plaintiff broke into Lockmiller's
apartment, he found Lockmiller "fooling around"
with Murray. The second time occurred within two months of
Lockmiller's death. Swaine was at Lockmiller's
apartment. Plaintiff arrived and began screaming at
Lockmiller. Swaine ran and hid in the bedroom closet. Swaine
heard plaintiff scream, "I know you are in there."
Plaintiff broke through the door. On a different date,
plaintiff searched Lockmiller's trash, looking for
Swaine's used condoms.
20 The investigation recovered seven fingerprints from the
alarm clock found at Lockmiller's apartment. Two belonged
to plaintiff, four to Swaine, and one remained unidentified.
21 As of August 29, 1993, one day after the discovery of the
body, Souk concluded plaintiff was the only suspect, but
other people could be potential suspects. According to Souk,
he did not believe Murray had a motive to kill Lockmiller.
While prosecuting plaintiff, Souk knew Murray had provided
Lockmiller with narcotics and marijuana, and conflicting
statements had been made about whether Lockmiller owed Murray
money. Souk also knew Murray made a mistake regarding his
alibi and corrected that mistake in a second interview. Souk
did not find the mistake suspicious. At the time of the
trial, Souk knew Murray began taking steroids in January 1994
and had begun acting erratically. Before that time, Murray
had not been physically violent toward Mackoway.
22 In February 1994, Freesmeyer was involved in a
consultation with the Chicago Police Department (CPD)
regarding the investigation. As the NPD had limited
experience in investigating homicides, the Normal chief of
police suggested the consultation for suggestions on the
investigation. A copy of the case report was sent to the CPD.
Detectives from CPD later met with Freesmeyer and others. The
CPD detectives' only suggestion was "to continue to
try to talk to [plaintiff] as long as [they] could."
23 On May 16, 1994, a meeting was held to determine whether
to arrest plaintiff for Lockmiller's murder. Those in
attendance included Reynard, Souk, Freesmeyer, Zayas, Normal
Chief of Police James Taylor, and Detective Tony Daniels.
During the meeting, Reynard decided to charge plaintiff. Souk
agreed. At his deposition, Daniels testified he suggested a
list of investigative avenues to pursue before arresting
plaintiff. Souk responded, "I think we've got our
guy[, ] *** we went as far as we can with this case."
Souk stated they were going to go ahead and issue a warrant
for plaintiffs arrest. Freesmeyer, in his deposition,
testified no one at the hearing questioned the decision to
arrest plaintiff. He had no memory of Daniels's
suggestions. Plaintiff was arrested in May 1994.
24 B. Grand Jury Proceedings
25 In July 1994, proceedings on Lockmiller's murder were
held before the grand jury. At the hearing, Souk conducted
the questioning. Freesmeyer, as well as other witnesses,
testified. During Freesmeyer's testimony, the following
"Q. I want to go now to some alibi evidence. First as to
Michael Swaine, before we get into his alibi, first let me
ask you if your investigation revealed any conceivable motive
that Michael Swaine might have had to kill Jennifer
A. No, Michael was the present boyfriend. When we picked him
up at the scene, extremely remorseful, crying and sobbing. We
were able to find no motive whatsoever.
Q. *** [B]ut other than Mr. Beaman, were you able in the
course of your investigation to locate any other person
anywhere who had any conceivable motive to kill Jennifer
A. No, not necessarily.
Q. Perhaps the best thing is why don't you just summarize
for us Mr. Swaine's alibi and how you were able to
A. In speaking with Mr. Swaine, I asked him where he was that
26 Freesmeyer was questioned regarding whether his interviews
of residents of the apartment building revealed anything
helpful to the case. He answered they did not.
27 Souk also questioned Freesmeyer about the time trials he
performed on the route from the Beaman residence in Rockford
to Lockmiller's apartment and the routes he took from
Bell Federal to the Beaman residence:
"A. However, considering the phone calls, if she would
have left her mother's residence at 10:00 ***, she would
have been home by 10:17. She could have made the calls at
10:37 and 10:39. Left the house and arrived back at Walmart
at approximately 10:57 or 11:00 ***. Give her 10 minutes to
go into three different departments at Walmart and check out.
It would have been rushed, but it would be possible.
Q. And again, this was one of those rare occasions when you
were driving the speed limit?
A. That is correct.
Q. Now did you also on two occasions do the same kind of
timing from Bell Federal to the Beaman residence?
A. Yes, I did.
Q. On one of those occasions, did you basically drive it
A. I drove the most direct route and I also drove what I
thought to be the fastest route, the two most logical ways to
get to the Beaman residence from Bell Federal.
Q. On both those occasions, did you drive the speed limit?
A. Yes. The trip through town, I drove the speed limit[, ]
and I drove it on a Wednesday afternoon at approximately
10:00 ***, so it would be very comparable to the time that
Mr. Beaman would have driven that route.
Q. How long did that trip take going through town?
A. That trip took me 30 minutes. If he had left the bank at
11 minutes after 10:00, he'd [have] gotten home at 10:45.
The calls were made at 10:37 and 10:39.
Q. When you drove it the other way, did you-from Bell
Federal, if you go a couple miles south, do you get to this
Route 20 going around the south side of town?
A. Yes, Bell Federal is on the corner of Newburg and Alpine.
If you take Alpine straight south to 20 and around, that
would be probably the quickest route to Mr. Beaman's
residence, and that took me 25 minutes. So once again 25
added to the 10:11 would put me there at 10:36. The calls
were at 10:37 and 10:39."
28 C. Motion in Limine
29 Before trial, the State filed a motion in limine
to exclude evidence of Lockmiller's relationships with
men other than plaintiff and Swaine. The trial court reserved
ruling on the motion. Later, the State and plaintiffs defense
counsel discussed Lockmiller's relationship with an
individual identified as "John Doe," who is Murray.
Souk told the court Doe had "nothing to do with the
case." Souk had not disclosed to plaintiffs trial
counsel Murray's criminal records, which would have
exposed his drug and steroid use, the incidents of domestic
violence, or the incomplete polygraph examination. Plaintiffs
trial counsel had no specific evidence pointing to another
individual who could have committed the offense. The trial
court granted the motion in limine.
30 D. Plaintiffs Trial and Conviction
31 At trial, evidence established plaintiff, then a student
at Illinois Wesleyan University, used Lockmiller's alarm
clock to wake for class. During the course of their
relationship, plaintiff stayed ...