January 2013Volume 101Number 1Page 10

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Hearsay allowed in murder trial under domestic violence exception

The Illinois Appellate Court ruled recently that hearsay evidence is admissible in a murder trial under a statutory exception for domestic violence prosecutions.

A unanimous downstate appellate court panel held that in certain circumstances it does not violate a defendant's constitutional rights to be convicted by hearsay statements that would be inadmissible in a murder trial were it not for a state rule allowing such evidence in prosecutions based on domestic violence.

Allowing hearsay evidence is generally held to violate the constitution's confrontation clause, subject to a finite list of exceptions enumerated in the federal rules of procedure and closely mirrored in the state rules. Section 115-10.2a of the Illinois Code of Criminal Procedure provides an additional exception to the general rule "in a domestic violence prosecution."

To admit hearsay statements in domestic-violence cases, the court must first determine that the declarant is "unavailable" as defined by the Code, that the out-of-court statement is offered as proof of a material fact, that no other reasonably available evidence could prove that fact, and "the interests of justice will best be served by admission of the statement into evidence." 725 ILCS 5/115-10.2a.

In People v. Richter, No. 4-10-1025, the fourth district of the Illinois Appellate Court affirmed a 75-year sentence for a man convicted of murdering his longtime live-in girlfriend, who was the mother of his two children. The appellate court found it was proper for the trial judge to rule that "a domestic violence prosecution" as stated in the procedural rule includes a murder trial when the defendant and victim are engaged in a domestic relationship.

Criminal-law Professor William Schroeder of Southern Illinois University School of Law said this kind of murder is exactly what the legislature intended when it created a statute allowing hearsay evidence in domestic violence prosecutions. Schroeder said because there is no crime in Illinois called "domestic violence," courts must interpret the meaning of those words to determine the kinds of cases to which the rule applies.

"Obviously this was a domestic battery that ended in a death - that's what homicide is," Schroeder said. "You can't say domestic violence stops being domestic violence just because she died. That can't be the right answer."

Richter facts and holding

With no murder weapon in evidence, the state relied heavily on hearsay statements from numerous sources who had spoken with the victim shortly before her death.

The victim's alleged out-of-court statements were made to friends, family members, a therapist, neighbors, and coworkers. Prior to trial, the state filed a detailed motion in limine seeking permission to show and tell the jury evidence from 14 people who heard statements by the victim that painted the picture of a hard-working mother who was trying to get out of an abusive relationship and feared for her life in the months and days leading up to her death.

The trial court applied an 11-factor test to each statement and issued written findings for every request. Following its order granting the state's motion in part, the court allowed the jury to hear evidence of hearsay statements the victim made to 12 of those 14 people.

According to the appellate court decision written by Justice Robert Steigmann, the admitted statements included the victim telling her mother she was moving out of the home she shared with the defendant "because she could no longer tolerate his physical, mental and verbal abuse." In a recorded conversation between the victim and her son, who was then incarcerated in the Illinois Department of Corrections, the victim said she was moving out because the defendant had threatened to kill her.

The victim and defendant had individually gone to the same therapist in hopes of reconciling their relationship, and she told the therapist she was "afraid of defendant because of his 'radical' mood swings." She told the branch manager of a temporary employment agency that the defendant had threatened to kill her "many times."

She sent a text message to her daughter that read, "I got you[r] message, but I can't talk to [him]. All we do is argue. He becomes angry and starts threatening me. Well, enough of that. Do you have a softball game tournament tomorrow and when[?]"

After learning the defendant had found out about a relationship the victim started with another man, she called her lawyer's office and left a voicemail message in which she said, "The person who called [your law office] claiming to be my father was not my father. Also [he] is threatening me with paying people from out of town to take care of me and the guy I was with.…I am feeling very, very threatened right now so just give me a call when you get a chance. Thanks."

In reviewing the trial judge's rulings on the motion in limine, the appellate court determined that the hearsay statements were not testimonial, were not obtained with any governmental involvement, and that the victim would not have anticipated at the time she made the statements that they would be used in prosecuting the defendant.

As such, the court held the admission of those statements did not violate the confrontation clause as interpreted by the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004).

"In evaluating the reliability, materiality, and necessity of these statements, the trial court - in its written order - noted that it had considered the entirety of the evidence presented within the framework of 11 applicable factors. The court then found that the statements at issue were reliable, material and necessary," Steigmann wrote for the appellate court.

Adam W. Lasker <alasker@ancelglink.com> is a lawyer in the Chicago office of Ancel, Glink, Diamond, Bush, DiCanni & Krafthefer.

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