Beaman v. Freesmeyer

          Appeal 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.

          Amici 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.

          OPINION

          KNECHT, JUSTICE

         ¶ 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 Evidence."

         ¶ 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 coming in."

         ¶ 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 roommate.

         ¶ 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 questioning occurred:

"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 Lockmiller?

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 Lockmiller?

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 establish it?

A. In speaking with Mr. Swaine, I asked him where he was that week."

         ¶ 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 through town?

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 ...