People v. Gliniewicz

JUSTICE BIRKETT delivered the judgment of the court, with opinion.

Appeal from the Circuit Court of Lake County. No. 16-CF-239 Honorable James K. Booras, Judge, Presiding. JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices Hutchinson and Burke concurred in the judgment and opinion.

OPINION

¶ 1 In this appeal, the State argues that the circuit court of Lake County erred both in granting defendant Melodie Gliniewicz's motion in limine and in denying the State's motion to reopen the proofs. For the following reasons, we reverse the trial court's order denying the State's motion to reopen the proofs and we remand this cause for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 On January 27, 2016, a Lake County grand jury returned a six-count indictment charging defendant with four counts of disbursing charitable funds without authority and for personal benefit (225 ILCS 460/19 (West 2016)) and two counts of money laundering (720 ILCS 5/29B-1(a)(1)(B)(i) (West 2016)). On March 9, 2016, the grand jury returned an indictment charging ¶ 8 The State filed a motion to reconsider. In its motion, it argued that the "text messages are admissible under the third-party exception," citing People v. Simpson, 68 Ill. 2d 276, 280 (1977). The motion contained a summary of the communications at issue, which the trial court ordered redacted by agreement. During the hearing on the motion, the State argued that the e-mail and text messages were "analogous to written communications which have been intercepted or eavesdropped." Defendant argued that it was improper for the State to argue a new theory in a motion to reconsider. She claimed that the third-party exception did not apply in this case, because there was "no loss, interception or mis-delivery." Defendant acknowledged the holding in Simpson that a "conscious action by the defendant" results in "waiver of the privilege." See id. at 281 (" 'a voluntary revelation by the holder [of the privilege] of the communication, or of a material part, is a waiver' " (quoting McCormick's Handbook of the Law of Evidence § 83, at 170 (Edward W. Cleary ed., 2d ed. 1972))). Defendant contended that she "has not taken any action" to reveal these communications. She noted that the communications were revealed by the State via a search warrant. She argued that, unlike in Simpson, "[h]ere there's no allegation that the defendant has revealed the content of the communication." She claimed that the purpose of the privilege "to promote free, frank and open communication" would be "essentially meaningless" if the court were to adopt the State's reasoning. ¶ 9 The trial court denied the State's motion to reconsider, ruling that "[a]ll of these communications are protected and thus they must not be disclosed." The court agreed with defendant that the third-party exception did not apply. It noted that there was no third party, loss, or misdelivery. Finally, the court commented:

"And the third scenario where this would apply is as I indicated by the conscious waiver of the privilege, basically when someone communicates in the presence of a third party or one's knowledge of [ sic] a third party has received it."

¶ 10 The State filed a certificate of impairment pursuant to People v. Young, 82 Ill. 2d 234 (1980), stating that the trial court's order barring the communications substantially impaired its ability to prosecute this case. The State filed its opening brief on February 14, 2018. Defendant filed her response brief on March 21, 2018. In her response brief, citing People v. Gardner, 105 Ill. App. 3d 103 (1982), defendant acknowledged that "just like in Simpson, if the holder of a privilege (i.e., the defendant) intentionally reveals those contents to a third person, he has relinquished the privilege." (Emphasis in original.) Defendant then said, "[h]owever, in this matter, there is no evidence in the record of any such voluntary or intentional revelation by the defendant, and therefore the State's broad assertion does not apply to the case before this court." (Emphases added and omitted.) ¶ 11 Prior to filing its reply brief, the State filed an "Emergency Motion for a Remand to Reopen Proofs." In the motion, the State alleged that it had received newly discovered information from the assistant state's attorney and chief of the criminal division, Jeff Pavletic. The State asserted that on April 2, 2018, the Lake County State's Attorney's Office received an e-mail from the attorney representing Fox Lake in a civil suit involving Joe's pension. In the e-mail, that attorney said that "defendant had signed a consent to search her phone (the subject of defendant's motion in limine re: marital privilege) on October 8, 2015." The State alleged that the e-mail did not include a copy of the consent form and that the State did not receive a copy of it until April 16, 2018. The State also alleged that Joe's cell phone containing the text messages at issue "was purchased with charitable funds and is/was owned by Fox Lake." This information was also new. The State attached a copy of the consent form. The form is a "Department of Justice/Federal Bureau of Investigation" consent-to-search form, signed by defendant on October 8, 2015. The form contains a description of the phone and the phone number. The form authorizes a search of the phone and contains the following printed acknowledgment:

"1. I have been asked by Special Agent of the Federal Bureau of Investigation to permit a complete search of: Samsung Galaxy S5 847-***-****
***
2. I have been advised of my right to refuse consent.
3. I give this permission voluntarily.
4. I authorize these agents to take any items which they determine may be related to their investigation."

¶ 12 Attached to the consent form is a document listing the backup password for defendant's cell phone. The State also attached "page KL 09263" from its discovery answer. The document is a "Lake County Major Crimes Task Force" investigative report. That report documented a conversation between defendant and Detective Andrew Jones. In the report, Jones wrote, "[w]e then asked her about a message between her and Joe regarding the hiding of money." Jones then said, "I then advised [defendant] that we would also like to review the information contained in her phone. [Defendant] advised that she would like to speak to her attorney first and we allowed her to do so." Jones went on to state that, while he was following defendant to her home, defendant sent him a text saying that he could take the phone. "[i]s the evidence of the utmost importance? I submit, folks, it's not because it doesn't exist. It hasn't been analyzed." The court said that the issue was not ripe, because the phone had not been analyzed and no one knew what was in it. Regarding defendant's comment to the police that they would find on her phone the same things that were on Joe's phone, the court said, "I don't know what she meant by that." With respect to the issue of waiver, the court said, "I don't know to what extent that waiver, if there is a waiver[,] the consent or waiver applies to the marital privilege. That's something for someone else to determine and make that call at a later junction. Therefore, I am saying at this point that the issue is not ripe." The court denied the State's motion to reopen the proofs. ¶ 27 We ordered that the State supplement the record on appeal with the report of proceedings from the hearing on the motion, along with any exhibits presented to the trial court. We denied the State's motion to file an amended motion and we also denied defendant's motion for sanctions. Further, we ordered that the State file its reply brief by July 3, 2018, and address the issue of whether the trial court erred when it denied the State's motion to reopen the proofs. Defendant was given until July 24, 2018, to file her surreply to the State's reply brief. Both parties timely filed their briefs.

Defendant later argued that the messages were found during the execution of a search warrant on Joe's cell phone.

"KL" are the initials of Kenneth LaRue, the assistant state's attorney assigned to this case. --------

¶ 28 II. ANALYSIS

¶ 29 A. Motion in Limine ¶ 30 Initially, on defendant's motion, we strike the first two paragraphs of the State's statement of facts, for failure to comply with Illinois Supreme Court Rule 341(h)(6) (eff. May 25, 2018) (the statement of facts shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the at 1009. An abuse of discretion exists where the trial court's decision is arbitrary, fanciful, or unreasonable such that no reasonable person would take the view adopted by the trial court. People v. Ramsey, 239 Ill. 2d 342, 429 (2010). However, we review a trial court's decision regarding privilege de novo. King Koil Licensing Co. v. Harris, 2017 IL App (1st) 161019, ¶ 78. Likewise, when the facts are not in dispute and credibility is not implicated, the question of whether a waiver has taken place is a legal one, and no deference is owed to the trial court's decision. Brunton v. Kruger, 2015 IL 117663, ¶ 72. ¶ 33 The State argues that the trial court misapplied section 115-16 of the Code (725 ILCS 5/115-16 (West 2016)), because the third-party exception to the privilege applies. We disagree. ¶ 34 Section 115-16 sets out the marital-communication privilege. Trzeciak, 2013 IL 114491, ¶ 40. "First, the communication must be an utterance or other expression intended to convey a message. Second, the message must be intended by the communicating spouse to be confidential in that it was conveyed in reliance on the confidence of the marital relationship." Id. ¶ 44. The burden of establishing that a privilege applies is on the party claiming it, who must establish all of the necessary elements. People v. McNeal, 175 Ill. 2d 335, 359 (1997). ¶ 35 In its response to defendant's motion in limine, the State conceded that "[a]ny text messages and emails exchanged between the defendant and Charles Joseph Gliniewicz contain information privately disclosed between husband and wife in the marital relationship." Thus, although the text messages and e-mails at issue are not in the record, the State admits that the communications were privileged absent some exception to or waiver of the privilege. ¶ 36 The State argues that the third-party exception applies to the communications. The State notes that in Simpson, 68 Ill. 2d at 280, our supreme court said:

"Communications in the presence and hearing of a third party are generally not considered to be confidential communications within that privilege. ( People v. Palumbo (1955), 5 Ill. 2d 409, 414-15.) It is likewise apparent that one in whose presence a communication between spouses is made may testify to that conversation, even though the witness overheard the conversation by eavesdropping. Similarly, one may testify who learns the contents of a written communication from one spouse to another by interception, or through loss or misdelivery by the custodian. McCormick, Evidence sec. 82, at 167 (2d ed. 1972).

¶ 37 In Simpson, an assistant state's attorney testified that he was present when two detectives questioned the defendant's wife. The defendant was also present for the interview. The wife was asked to "[t]ell us what he told you." (Internal quotation marks omitted.) Id. at 279. She responded that the defendant "said that he shot Gwen." Id. The defendant spoke up and said, "[y]es, but I told you later I was lying." (Emphasis and internal quotation marks omitted.) Id. The supreme court held that the defendant's public reply to his wife's statement rendered admissible the account from the interview. Id. at 281. The court said that the defendant did not have to make such an acknowledgement and could have preserved the privilege by remaining silent, "despite the wife's revelation of that conversation to the police." Id. at 281-82. We agree with defendant that the third-party exception does not apply here. Unlike in Simpson, the communications in this case were found through the execution of a search warrant, not by a third party listening to a conversation. Likewise, the communications were not found by "interception, or through loss or misdelivery by the custodian." Id.at 280. ¶ 38 We also reject the State's argument that we should adopt a joint-criminal-enterprise exception to the marital-communication privilege. The State points us to several foreign jurisdictions with statutes similar to ours where reviewing courts recognized such an exception. But Illinois has never adopted it. See Saunders, 288 Ill. App. 3d at 526; Krankel, 105 Ill. App. 3d at 991. The trial court was bound by the holdings in these cases. Although we are not similarly bound by these decisions, we presume that the General Assembly is aware of them. Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445, 458 (1997) ("In amending a statute, the legislature is presumed to have been aware of judicial decisions interpreting the statute and to have acted with knowledge."). We note that section 115-16 has been amended six times since Krankel was decided. Our supreme court has made it clear that changes to the statute are a matter for the legislature. People v. Palumbo, 5 Ill. 2d 409, 413-14 (1955); People v. Kendall, 357 Ill. 448, 456 (1934). Any expansion of the exceptions to the marital-communication privilege is a matter of public policy, committed to the sound judgment of the legislature. ¶ 39 Similarly, we reject the State's invitation to expand upon the "agency" exception recognized in Saunders and People v. Hommerson, 399 Ill. App. 3d 405 (2010). In both of those cases, the wives were acting solely as agents for their husbands. In this case, the indictments alleged that defendant and Joe were coconspirators. We find no error in the trial court's granting defendant's motion in limine, which by law and the court's written order was subject to reconsideration.

¶ 40 B. Motion to Reopen Proofs

¶ 41 Next, the State argues that the trial court abused its discretion when it denied the State's motion to reopen the proofs. ¶ 42 A trial court's ruling on a motion to reopen proofs is reviewed for an abuse of discretion. In re Marriage of Suarez, 148 Ill. App. 3d 849, 858 (1986). "In rendering its decision, the trial court should consider whether the moving party has provided a reasonable excuse for failing to her phone and Joe's phone would be the same. The use of cell phones to transmit and store electronic communications in the form of e-mail and text messages is a matter of common knowledge. People v. Tassone, 41 Ill. 2d 7, 12 (1968) (courts will take judicial notice of that which everyone knows to be true). The trial court commented that it did not know what defendant meant when defendant said, "[y]ou are going to see the same as my husband's." The State's position is that, in the context of the conversation with the police and the consent to search, defendant was exposing her communications with Joe to law enforcement and therefore waiving the marital-communication privilege. At the hearing on the State's motion to reopen the proofs, defense counsel argued that defendant's consent was not voluntary. Thus, the facts regarding defendant's waiver/consent are contested. The trial court may resolve the issue at the reopened hearing on the motion in limine.

¶ 51 III. CONCLUSION

¶ 52 The trial court did not err in granting defendant's motion in limine regarding the marital-communication privilege. However, the trial court erred in denying the State's motion to reopen the proofs on the motion. The order denying the motion to reopen the proofs is reversed, and this cause is remanded for further proceedings. ¶ 53 Reversed and remanded.