*1 Illinois Official Reports
Appellate Court
People v. Cleary
,
Docket No. 3-11-0610 Filed November 21, 2013
Held On appeal from defendant’s conviction for murdering his wife, the appellate court rejected defendant’s contention that his rights under ( Note: This syllabus the confrontation clause were violated by the admission of the constitutes no part of the statements his wife made to family members and friends prior to her opinion of the court but has been prepared by the death that defendant was going to kill her if she left him, since the Reporter of Decisions statements were not testimonial under the test set forth in Stechly, that for the convenience of is, they were not made in a “solemn fashion,” and they were not the reader. ) intended to establish a particular fact. Decision Under Appeal from the Circuit Court of Tazewell County, No. 10-CF-205; the Hon. Stuart P. Borden, Judge, presiding. Review Affirmed. Judgment
Counsel on Peter A. Carusona and Santiago A. Durango (argued), both of State *2 Appellate Defender’s Office, of Ottawa, for appellant. Appeal
Stewart Umholtz, State’s Attorney, of Pekin (Terry A. Mertel and Judith Z. Kelly (argued), both оf State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People. JUSTICE McDADE delivered the judgment of the court, with
Panel
opinion.
Presiding Justice Wright concurred in the judgment and opinion. Justice Schmidt specially concurred, with opinion.
OPINION Following a jury trial, defendant Daniel Cleary was convicted of murdering his wife and
sentenced to 60 years’ imprisonment. During the trial, the State admitted hearsay statements
made by the victim pursuant to section 115-10.2a of the Code of Criminal Procedure of 1963
(725 ILCS 5/115-10.2a (West 2010)). In these statements, the victim told her friends and
family that defendant had stated he would kill her if she tried to end their marriage and that she
wanted to leave defendant but was afraid to do so. On appeal, defendant contends that pursuant
to
Crawford v. Washington
,
testimonial. Applying the test set out in
People v. Stechly
,
¶ 5 MeLisa and Cleary had an argument in their home on the evening of June 6, 2008. Later
that evening, MeLisa did not show up to her sister’s house as planned, and calls to MeLisa’s cell phone went unanswered. The following day, MeLisa’s Ford Expedition was found abandoned about a half-mile from Cleary’s home in Mackinaw, Illinois. On June 9, 2008, MeLisa was found dead under an interstate overpass in Logan County. On April 16, 2010, the State charged Cleary with five counts of first degree murder (720 ILCS 5/9-1(a) (West 2010)), alleging that Cleary caused MeLisa’s death by striking her on the head.
¶ 6 I. Statements Made by MeLisa
¶ 7 Prior to trial, the State requested to admit hearsay statements made by MeLisa to her
friends and family members pursuant to section 115-10.2a of the Code of Criminal Procedure (725 ILCS 5/115-10.2a (West 2010)). The substance of those statements, and the conversations in which they occurred, is as follows. Kaitlyn, MeLisa’s 12-year-old daughter, testified that one or two days prior to her death,
MeLisa asked Kaitlyn what she thought about MeLisa and Cleary getting a divorce. Kaitlyn answered that she thought it would be a good idea. MeLisa then asked Kaitlyn to watch over Jacob and Chloe because MeLisa thought “something bad was going to happen to her.” Paul Robertson met MeLisa approximately one month before her death at the Tops & Tails bar. In a conversation at the bar approximately two weeks before her death, MeLisa told Robertson that her marriage was “rocky” and that Cleary had threatened to kill her if she left him. MeLisa also said that when she told Cleary she wanted a divorce, he showed no emotion, which scared MeLisa. MeLisa and her sister Brandy Gеrard discussed MeLisa’s marriage at MeLisa’s home in
Mackinaw on May 10, 2008. MeLisa told Brandy that she wanted to leave her marriage with Cleary but would never make it out alive, saying that Cleary had told her he would kill her and burn the house down. When Brandy urged her to gather her belongings and leave, MeLisa said that it did not matter if she ran–Cleary would find her and kill her. MeLisa also told Brandy that while Cleary was supposed to be in California that weekend, she believed Cleary was still in town, following her. Stephanie Sanford was a friend of MeLisa’s from the Tops & Tails bar, where they met one
month prior to MeLisa’s death. Sanford testified that a couple weeks before MeLisa’s death, when she called MeLisa’s home a man answered and told her never to call again. MeLisa called Sanford back and apologized, saying that Cleary was acting crazy and they were getting a divorce. MeLisa also said that Cleаry had “hurt her before” but did not say how or when. During a conversation on the night prior to MeLisa’s death, MeLisa told Sanford that Cleary said that if MeLisa “tried to leave him again, that he would kill her, that if he couldn’t have her, nobody could.” Nicole Simpson was a friend and former coworker of MeLisa. While discussing MeLisa’s
marriage, Simpson asked why MeLisa stayed with Cleary if she was so unhappy in the *4 relationship. MeLisa responded that Cleary, on multiple occasions, said he would never let her out of the marriage and that he would kill her first. While Simpson urged MeLisa to contact the police about these threats, she refused to do so. MeLisa called Simpson on the phone the day prior to her death, and Simpson could tell that MeLisa was upset. MeLisa told Simpson that she woke up in the middle of the night and Cleary was pacing in front of the bed, staring at her. Cleary tоld MeLisa he was watching her sleep because she was so beautiful and that he would never let her out of the marriage and would kill her first.
¶ 13 The trial court ruled these statements satisfied the criteria of section 115-10.2a and were
admissible. The court did not rule whether the statements violated Cleary’s confrontation clause rights because that issue was not argued at the pretrial hearing.
¶ 14 During the trial, as part of its case-in-chief, the State elicited testimony from the above
witnesses in which they relayed the statements made by MeLisa. ¶ 15 II. Other Evidence at Trial The other evidence presented at trial established that the following events occurred. On the
afternoon of June 6, 2008, Cleary came home early from work, and MeLisa made repeated calls to Simpson expressing her alarm about his early arrival. She planned on packing her bags and going to Simpson’s home that evening. Around 5 p.m., MeLisa was on the phone with Sanford, and Sanford heard a man’s voice yelling in the background, after which the call ended abruptly. Jacob, the couple’s son, was home on June 6, and he testified that Cleary yelled at MeLisa
to get off the couch. Cleary then told Jacob and his sister Chloe to go to their room and turn the radio up loud. Jacob stated that his father usually told him to do this when his parents would argue. Jacob testified that he and Chloe were in his room for close to an hour. Kaitlyn, MeLisa’s daughter, testified that Cleary and MeLisa had been arguing intensely
for the past several weeks. When she returned home at around 5:30 p.m. on June 6, Kaitlyn saw Cleary emerge from the garage looking agitated: his face and neck were bright red, as if he had been arguing with MeLisa. Cleary began pacing in the kitchen, then ordered Kaitlyn, Jacob, and Chloe to go outside, since Cleary stated he was going to spray for bugs. Jacob testified that they were outside for what seemed like a long time. After the children came back inside, Cleary told Kaitlyn not to go into the garage; however,
while Cleary showered, Kaitlyn went into the garage to retrieve her purse from MeLisa’s Ford Expedition. Kaitlyn testified she saw red spots on the floor of the garage. When she looked inside the vehicle, in the cargo area she saw a shape wrapped in blankets. Kaitlyn thought the shape looked like a body lying on its side. She also noticed more red spots in the back of the vehicle. Kaitlyn testified she grabbed her purse and left the garage quickly because she was disobeying Cleary’s order not to go in the garage. Kaitlyn did not tell investigators about the shape she saw in the vehicle for more than а
month after MeLisa was found dead. Kaitlyn testified that she did not tell the police what she had seen in the garage because she did not want Cleary to find out she had told them. Kaitlyn initially said that the reason she did not tell the police immediately was that Cleary had *5 threatened her, saying that if she said anything, he would kill her dog while making her watch and then he would beat her to death. Kaitlyn admitted that Cleary did not actually threaten her, and she told this story at the urging of MeLisa’s sister Felicia.
¶ 21 On the evening of June 6, both Kaitlyn and Jacob tried to enter MeLisa’s bedroom to say
goodnight, but Cleary stopped them and said their mother did not want to be disturbed. Cleary subsequently drove Kaitlyn to a sleepover, taking Jacob and Chloe with him on a job and then going out for ice cream. Kaitlyn tried to call MeLisa’s cell phone that night, but her calls went unanswered.
¶ 22 When MeLisa did not show up to Simpson’s housе that evening as planned, Simpson
called and sent text messages to MeLisa, with no response. She contacted Cleary looking for MeLisa, and he gave inconsistent statements as to where he had last seen her. On Saturday, June 7, Tazewell County sheriff deputies went to Cleary’s home to conduct a
preliminary investigation of a missing person. They spoke to Cleary and walked through the home. They noticed that the bed in the master bedroom was stripped of the bedding and found damp pairs of sneakers and damp bedspreads in the clothes dryer, along with a bottle of bleach. The officer also observed Cleary scrubbing the floor of the garage with a rag and bottle of cleaner; Cleary stated he had spilled some oil on the floor while changing the Expedition’s oil. Later that day MeLisa’s mother went to the home and also found Cleary scrubbing thе floor of the garage, although she did not notice a spill. Jacob also testified that earlier that morning he saw his father scrubbing the garage floor with bleach and doing laundry. On the afternoon of June 7, MeLisa’s abandoned Expedition was found approximately a
half-mile south of the Cleary residence. A farm field separated the road where the vehicle was found from the Cleary’s home. A path led through the field’s grass toward Cleary’s home, but the path disappeared in a muddy part of the field. Jacob testified that he saw muddy footprints inside the home on the morning of June 7. After MeLisa’s body was discovered on June 9, police forensically examined the
Expedition and Cleary’s garage. In the Expedition, investigators found possible traces of blood in the cargo area and on the driver’s pedals. In the garage, investigators found possible spots оf blood, and a spot from the garage door matched MeLisa’s DNA profile. One part of the garage door had a streak pattern, indicating that blood had been partially wiped clean. Traces of blood were not found on any tools or the walls and ceiling of the garage. The coroner examined MeLisa’s body and concluded that MeLisa’s death was caused by
blunt trauma to the head and neck. The coroner also determined that MeLisa had not died where she was found, but was killed the night of Friday June 6, then laid on her back for 8 to 12 hours, causing the blood to congeal in her wounds. Investigators found no indication of a sexual assault. After the State rested, Cleary presented evidence that a neighbor spotted two unidentified
men in a vehicle parked next to the Expedition in the early morning of June 7. He also argued that MeLisa was engaging in high-risk behavior: he presented evidence that MeLisa had started a sexual relationship with a man she met at the Tops & Tails bar, and had contacted another man on MySpace about meeting with him. Cleary also elicited testimony that another *6 bar patron followed MeLisa around the bar and made unwelcome comments to her, which made MeLisa feel “creeped out.” A defense expert also testified that nothing ruled out the possibility that the sample of Melisa’s DNA found in the garage came from her merely rubbing against the garage door.
¶ 28 After the close of evidence and arguments, the jury returned a guilty verdict. Cleary’s
posttrial motion for a new trial was denied, and the court sentenced Cleary to 60 years’ imprisonment. Cleary appeals.
¶ 29 ANALYSIS In this case, pursuant to section 115-10.2a, the court admitted various hearsay statements
made by MeLisa which conveyed Cleary’s threats to kill her if she ended their relationship. This statute allows hearsay statements made by a person protected under the Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 2010)) to be admitted in a “domestic violence prosecution,” if the statements are not covered by any other hearsay exception but have equivalent circumstantial guarantees of trustworthiness, and the person who made the statements is unavailable to testify. 725 ILCS 5/115-10.2a(a) (West 2010). In addition, to admit the statements the court must find (1) the statements are evidence of a material fact; (2) the statements are more probative than any other evidence which the proponent can reasonably procure; and (3) that admitting the statements will best serve the general purposes of the statute and the interests of justice. See 725 ILCS 5/115-10.2a(a) (West 2010). One previous appellate court decision allowed hearsay statements of a murdered spouse to
be admitted under this section (see
People v. Richter
,
statements pursuant to section 115-10.2a violated Cleary’s right to confront the witnesses
against him. Whether a defendant’s constitutional right has been violated is reviewed
de novo
.
People v. Burns
,
statements are barred by the confrontation clause either at trial or in a posttrial motion, and it argues that Cleary has forfeited the issue by failing to raise it below. While Cleary apparently did raise the confrontation clause issue prior to trial, he failed to pursue the argument. Before ruling that the statements were admissible pursuant to section 115-10.2a, the trial judge stated that “I’m not going to get into whether it runs with Crawford or whether it’s constitutional at this point in time, [because it] hasn’t really been brought to the Court’s attention in that fashion.” Cleary also failed to file a posttrial motion alleging a constitutional violation. *7 ¶ 35 Despite his failure to pursue the argument at trial, Cleary is challenging that the statute was
unconstitutional as applied, and generally, a challenge to the constitutionality of a statute may
be raised at any time.
People v. McCarty
, 223 Ill. 2d 109, 123 (2006). See also
People v.
Emmett
,
¶ 36 II. Confrontation Clause Under the sixth amendment, a criminal defendant has the right to be confronted with the
witnesses against him. U.S. Const., amend. VI. In
Crawford v. Washington
, the Supreme Court
held the confrontation clause prevents a “testimonial” hearsay statement of a declarant from
being admitted against a criminal defendant, unless the declarant is unavailable to testify and
the defendant had a prior opportunity to cross-examine the declarant.
Crawford
, 541 U.S. at
68. Nontestimonial hearsay statements, however, are not subject to the protection of the
confrontation clause, although they may still be excluded under normal hearsay rules. See
Davis v. Washington
,
Supreme Court has declined to give a comprehensive definition of “testimonial.” Crawford , 541 U.S. at 68. However, in Crawford the Court looked to the definitions of witness and testimony to determine what concerns are implicated by the confrontation clause, stating that the text of the confrontation clause:
“[A]pplies to ‘witnesses’ against the accused–in other words, those who ‘bear
testimony.’ 2 N. Webster, An American Dictionary of the English Language (1828).
‘Testimony,’ in turn, is typically ‘[a] solemn deсlaration or affirmation made for the
purpose of establishing or proving some fact.’
Ibid.
An accuser who makes a formal
statement to government officers bears testimony in a sense that a person who makes a
casual remark to an acquaintance does not. The constitutional text, like the history
underlying the common-law right of confrontation, thus reflects an especially acute
concern with a specific type of out-of-court statement.”
Crawford
,
formulation, testimonial statements “applie[d] at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police interrogations,”
because “these are the modern practices with closest kinship to the abuses at which the
Confrontation Clause was directed.”
Crawford
,
looking to the “primary purpose” of the statement.
Davis
,
evidentiary purposes and to aid in police investigations, qualify as testimonial.
Melendez-Diaz
v. Massachusetts
,
admitting a child’s hearsay statements implicating the defendant in a sexual assault, without an
opportunity to сross-examine the child, constituted a violation of the defendant’s confrontation
clause rights under
Crawford
.
Stechly
,
281. Indicia of solemnity could include whether the statement was made formally–such as
under oath or after
Miranda
warnings had been given–or whether there were severe
consequences that could discourage dishonesty, such as the threat of potential legal
consequences for lying to a police officer.
Stechly
,
Ill. 2d at 282. Here, the court must evaluate whether the primary purpose of the statement is to
enable police to meet an ongoing emergency or to establish a fact relevant to later criminal
prosecution.
Stechly
,
social worker who recorded the child’s hearsay statements implicating the defendant in abuse
were not doing so for treatment purposes, but to gather information for law enforcement, and
therefore the statements made by the child were testimonial.
Stechly
, 225 Ill. 2d at 300.
However, the child’s statements to her mother were held not to be testimonial.
Stechly
, 225 Ill.
2d at 301. The court noted that the mother’s question to the child–asking “what happened”
while taking the child to the hospital–was not eliciting information for law enforcement, and
therefore it evaluated the statement from the perspective of the declarant.
Stechly
, 225 Ill. 2d at
301-02. The court concluded that when the child told her mother of the abuse, she was merely
explaining the reason for the trip to the hospital, and therefore the circumstances did not
support the conclusion that an objective declarant in the child’s place would anticipate the
statement would likely be used in a prosecution. ,
reversal and remand for a new trial.
Stechly
, 225 Ill. 2d at 316. Concurring in part, Justice
Kilbride agreed that the admission of the testimonial statements made to the nurse and social
worker required reversal, but wrote separately to state that the child’s statements to her mother
were also testimonial.
Stechly
,
statement.
People v. Sutton
,
adopted the
Stechly
plurality’s framework for determining whether a statement was testimonial
for the purposes of confrontation clause analysis. See
Sutton
,
evaluate whether MeLisa’s statements were testimonial. We believe that the Stechly framework provides a straightforward, rational framework to guide a court’s confrontation clause analysis. Moreover, nothing in our supreme court’s recent decision in Leach can be seen as an abandonment of the Stechly framework. C. Application to the Case at Bar Applying Stechly , to be testimonial MeLisa’s statements must have (1) been made in a
solemn fashion, and (2) been intended to establish a particular fact.
Stechly
, 225 Ill. 2d at
281-82;
Sutton
,
MeLisa’s statements would be used against Cleary if MeLisa was in fact killed. Indeed, Cleary argues that MeLisa intended for the statements to be passed on to the authorities, and that her “statements had little value except to ensure the arrest and eventual prosecution of the defendant.” We disagree. Given the context of these conversations, it is not at all clear that a reasonable person in MeLisa’s place would have anticipated the statements would have been *12 used in a future prosecution of Cleary. MeLisa’s statements about Cleary’s threats to kill her often occurred in conversations where she was discussing her relationship and why she was afraid to leave it; her statements could have been explanations for why she stayed in the relationship, expressions of her feelings of helplessness, or cries for help. It is not axiomatic that a reasonable person would make these statements with the intent that they be transmitted to law enforcement in the event of a subsequent crime occurring, and Cleary has cited no other evidence demonstrating such an intent. In addition, MeLisa’s statements were clearly not made in a solemn fashion. Statements
made formally, or where there are severe consequences for dishonesty, are considered to be
sufficiently solemn. See , 225 Ill. 2d at 281-82. Here, MeLisa’s statements were
remarks to her friends–some of whom she had not known long–and family in the course of
discussing her relationship. See
Crawford
,
established by the Fourth District Appellate Court in
People v. Richter
, 2012 IL App (4th)
101025.
Richter
presented a set of facts similar to those of the present case, in which the
defendant was accused of killing the mother of his children, and the State admitted various
hearsay statements made by the victim to her family, neighbors, and coworkers.
Richter
, 2012
IL App (4th) 101025, ¶ 7. In these statements, the victim stated that she was trying to move
away from defendant and she detailed various threats to kill her mаde by the defendant and her
resulting fear of him.
Richter
, 2012 IL App (4th) 101025, ¶¶ 7-39. On appeal, the court
rejected the defendant’s argument that admitting the statements against him violated his rights
under
Crawford
.
Richter
,
receiving those statements.
Richter
,
Richter
court conducted an extensive analysis of the law. The
Richter
court relied heavily on
Professor Graham, who interprets
Davis
to focus solely on the conduct of government agents,
which Professor Graham argues supports the proposition that a statement made to someone
who is not a government agent cannot be testimonial.
Richter
, 2012 IL App (4th) 101025,
¶¶ 123-24 (citing Michael H. Graham, Graham’s Handbook of Illinois Evidence § 807.1, at
1013 (10th ed. 2010)). Second,
Richter
relied on a passage from the United States Supreme
Court’s оpinion in
Giles v. California
, which implied that statements made to friends and
neighbors describing domestic abuse would not qualify as testimonial: “ ‘[O]nly
testimonial
statements are excluded by the Confrontation Clause. Statements to friends and neighbors
about abuse and intimidation and statements to physicians in the course of receiving treatment
would be excluded, if at all, only by hearsay rules ***.’ ” (Emphasis in original.)
Richter
, 2012
IL App (4th) 101025, ¶ 126 (quoting
Giles v. California
,
Stechly
. The court stated that
Stechly
plurality’s pronouncement that a statement could be
testimonial even if not given to law enforcement was
dicta
, because the nurse and social
worker were acting as agents of law enforcement.
Richter
,
First, a per se rule seems contrary to the Supreme Court’s case-by-case approach to this issue. See , 225 Ill. 2d at 280 (“[T]he Court’s approach has been to steer away from generalized, abstract pronouncements and instead to focus on the particular statements under consideration.”). Second, doing so is not necessary to resolve this case, because the statements
at issue here are not testimonial under the formulation in
Stechly
. Finally, at this time we are
not convinced that such a
per se
rule is appropriate, for the following three reasons.
First, a
per se
rule requiring government involvement is not compelled by the United States
Supreme Court decisions addressing the scope of testimonial statements. While the
Richter
decision relied on the passage from
Giles
quoted above, this statement was pure
dicta
. The
issue in
Giles
was whether a defendant could forfeit the protections afforded by the
confrontation clause by wrongfully causing a witness to be unavailable at trial; the case did not
address whether the hearsay statements at issue were testimonial. See
Giles
,
case-by-case approach. Although
Stechly
was only a plurality opinion, our supreme court has
since adopted the
Stechly
framework in two subsequent cases,
Sutton
and
Rolandis G
. These
cases both dealt with statements given to law enforcement personnel, so the court has not had a
chance to specifically revisit the
Stechly
plurality’s determination that a testimonial statement
does not need to be given to government personnel. But we note that none of the justices have
explicitly disapproved of the plurality = s determination that a testimonial statement does not
require government involvement. Moreover, we disagree with the
Richter
court’s assertiоn
that Justice Kilbride did not address the plurality’s determination that testimonial statements
did not require government involvement. See
Richter
,
is outside of the scope of this opinion, we note the plurality’s determination that a per *15 se rule requiring government involvement had little basis in legal history. See , 225 Ill. 2d at 287 (citing Richard D. Friedman, Crawford and Beyond: Exploring the Future of the Confrontation Clause in Light of the Past: Grappling With the Meaning of “Testimonial”, 71 Brook. L. Rev. 241 (2005)). [3]
¶ 67 We agree with the Richter court that the primary evil which the confrontation clause seeks
to address involves statements made to government personnel. See
Bryant
,
¶ 69 For the foregoing reasons, the judgment of the circuit court of Tazewell County is
affirmed. Affirmed. JUSTICE SCHMIDT, specially concurring. I concur in the judgment. As the majority notes, the State has requested that we adopt a per
se rule set forth in Richter . Supra ¶ 63. The majority also acknowledges that there is no need for us to weigh in on Richter in order to resolve this case. Whether or not statements to a nongovernmental entity can ever be testimonial for
purposes of Crawford is, of course, ultimately a federal constitutional question that will someday be decided by the United States Supreme Court. However and whenever the Supreme Court decides the issue, it seems unlikely that it will give the same weight to Professor Graham’s opinion as does the Richter majority. [4] In a nutshell, since it is unnecessary to the resolution of this case, I see no rеason to adopt
Richter ; additionally, I see no reason to either agree or disagree with Richter and therefore do not join in paragraphs 63 through 67 of the majority opinion.
Notes
[1] This seems to be an odd result, since if a statement is made under circumstances which
encourage honesty, they are testimonial and the confrontation clause bars their admission, while if
they are made in circumstances which are not solemn, the confrontation clause does not limit their
admissibility. However, the Supreme Court has made clear that the focus of the confrontation clause
is not to ensure reliability of evidence. The task of ensuring reliability of nontestimional hearsay can
be done by the normal hearsay rules. See
Crawford
,
[2] As an exception to its
per se
rule,
Richter
also adopted what it called the “conduit theory.”
Richter
,
[3] A historical illustration of the scope of an accused’s right of confrontation can be seen in the
framing-era English case of
King v. Braiser
, which the Court cited in
Davis
. In that case, a young girl
who had just been raped described the incident to her mother, and the mother’s testimony at trial
relaying the daughter’s account was held inadmissible. See
Davis
, 547 U.S. at 828 (citing
King v.
Braiser
, (1779) 168 Eng. Rep. 202 (K.B.); 1 Leach 199);
Bryant
,
[4] While the
Richter
majority suggests that Illinois courts ought to genuflect to Professor Graham
(
Richter
,