People v. Gliniewicz

2020 IL App (2d) 190412

171 N.E.3d 90

446 Ill.Dec. 655

The PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.Melodie GLINIEWICZ, Defendant-Appellee.

No. 2-19-0412

Appellate Court of Illinois, Second District.

Opinion filed June 25, 2020

Michael G. Nerheim, State's Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Richard S. London, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Donald J. Morrison, of Morrison & Morrison, P.C., and Brian G. Smith, of LaLuzerne & Smith, Ltd., both of Waukegan, and Vasili D. Russis, of Kelleher & Buckley, LLC, of North Barrington, for appellee.

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

¶ 1 The State appeals the trial court's order granting defendant, Melody Gliniewicz's, amended motion in limine to bar, as protected by marital privilege, evidence of electronic communications between her and her deceased husband, Charles Joseph Gliniewicz (Joe), that the police recovered from his cell phone. For the following reasons, we reverse.

¶ 2 This case comes before us for the third time. In People v. Gliniewicz , 2018 IL App (2d) 170490, 427 Ill.Dec. 648, 119 N.E.3d 28 ( Gliniewicz I )¹ , the State appealed the trial court's order granting defendant's original motion in limine to bar evidence of electronic communications between her and Joe, specifically those that were recovered from his cell phone and were related to their alleged criminal conduct. The trial court held that the communications were protected by marital privilege. We granted a limited remand in Gliniewicz I to permit the State to reopen the proofs on the motion in limine and present newly discovered information that, in October 2015, defendant consented to a search of her cell phone. On remand, the trial court denied the State's motion to reopen the proofs. We affirmed the order granting the defendant's motion in limine but reversed the order that disallowed the reopening of the proofs. Id. ¶¶ 39, 50. We held "that the State has, by its representations to the trial court and by the exhibits, made a prima facie case" that defendant waived her marital privilege. Id. ¶ 50. Since the facts regarding defendant's "waiver/consent" were contested, we reversed the order denying the motion to reopen the proofs and remanded for further proceedings. Id. ¶ 52.

¶ 3 On remand, defendant filed an amended motion in limine to bar evidence of electronic communications between her and Joe. The court granted the motion. For the following reasons, we reverse.

¶ 4 I. BACKGROUND

¶ 5 Defendant was indicted by a Lake County grand jury on January 27, 2016. Four counts of the indictment accused defendant of disbursing charitable funds without authority and for personal benefit ( 225 ILCS 460/19 (West 2016) ). Two counts accused defendant of money laundering ( 720 ILCS 5/29B-1(a)(1)(B)(i) (West 2016). On March 9, 2016, the grand jury returned an indictment adding four additional counts: one alleged disbursing charitable funds without authority and for personal benefit ( 225 ILCS 460/19 (West 2016) ), one alleged conspiracy (disbursing charitable funds without authority and for personal benefit ( 720 ILCS 5/8-2(a) (West 2016); 225 ILCS 460/19 (West 2016) ), and two alleged conspiracy (money laundering) ( 720 ILCS 5/8-2(a), 29B-1(a)(1)(B)(i) (West 2016)). These charges alleged that Joe participated in the commission of these offenses as part of a scheme to steal funds from the Fox Lake Police Explorer Post Program. Explorer Posts, which are affiliated with the Boy Scouts of America, give young adults the opportunity to learn about law enforcement by working with local law enforcement agencies.

¶ 6 The State disclosed that it would seek to introduce electronic communications (e-mail and text messages) between defendant and Joe that were recovered from Joe's cell phone pursuant to a search warrant. On January 30, 2017, defendant filed her original motion in limine to bar the State from introducing the electronic communications between her and Joe, based on marital privilege. Defendant maintained that these confidential communications were obtained without her knowledge or consent. Defendant originally argued that she had taken no action to reveal these communications, as was the case in People v. Simpson , 68 Ill. 2d 276, 280, 12 Ill.Dec. 234, 369 N.E.2d 1248 (1977) (recognizing the third-party exception to marital privilege). Gliniewicz I , 2018 IL App (2d) 170490, ¶¶ 9-10, 427 Ill.Dec. 648, 119 N.E.3d 28. After the opening briefs were filed in Gliniewicz I , the State filed an "Emergency Motion for a Remand to Reopen Proofs," based on newly discovered information that on October 8, 2015, after speaking to her attorney, defendant had signed a written consent to search her cell phone. Id. ¶ 11. The State attached a copy of the consent form as well as a copy of the "Lake County Major Crimes Task Force" report documenting a conversation between defendant and Detective Andrew Jones. Id. ¶ 12. We granted the State's motion in part and remanded the case for " ‘the limited purpose of the trial court's consideration of the State's request to reopen the proofs on defendant's motion in limine regarding marital communications and other necessary proceedings pertaining to that motion.’ " Id. ¶ 15. On remand, the trial court denied the State's motion to reopen the proofs. Id. ¶ 26.

¶ 7 In Gliniewicz I , we rejected the State's arguments that the third-party exception applied to the communications discovered on Joe's phone. Id. ¶ 37. We also rejected the State's argument that we should adopt the joint-criminal-enterprise exception to the marital privilege. Id. ¶ 38. We noted that, although foreign jurisdictions have recognized the joint-criminal-enterprise exception, Illinois appellate courts had rejected it and the trial court was bound by those courts' decisions. Id.

¶ 8 Although we found that the trial court did not err in its initial ruling granting defendant's motion in limine , we held that it abused its discretion in denying the State's motion to reopen the proofs and we remanded for further proceedings. Id. ¶ 52. We determined that the State had made a prima facie case of waiver. Id. ¶ 50. We also rejected defendant's argument that the circumstances surrounding the consent to search defendant's phone were irrelevant because the State could not produce any evidence as to what was contained on her phone, which, the State represented, had been returned to defendant without being searched. We noted that "defendant's motion in limine challenged the admissibility of communications between defendant and Joe recovered from Joe's phone and tendered in discovery." Id. ¶ 48. Our mandate in Gliniewicz I was issued on January 17, 2019, and filed in the trial court on January 22, 2019. On remand, defendant did not request a hearing on the voluntariness of her consent. Instead, on February 4, 2019, defendant filed her "Amended Motion In Limine (with exhibits)." Defendant's amended motion pointed out that, contrary to the State's earlier representation, defendant's phone had been searched before it was returned to her. Defendant noted that the State had recently submitted an extraction report showing what was on defendant's phone at the time she tendered it to law enforcement. According to defendant, the report "shows that at the time she signed the consent to search her phone, and contrary to the State's assertion in the trial court and the appellate court, the communications on defendant's phone were not ‘identical’ to nor were they ‘mirror images’ of the communications on her late husband's phone." Defendant's motion argued that, at the time we issued our opinion in Gliniewicz I , we "labored under the misapprehension that there was no extraction report showing the contents of defendant's phone at the time she signed the consent." Defendant noted that we "did not discuss whether the prima facie case of waiver was limited to communications found on defendant's phone at the time of consent." Defendant conceded that, "for purposes of this motion," she waived the marital privilege as to the communications between her and Joe "found on her phone at the time she signed the consent." Defendant argued that additional communications found on Joe's phone, but not recovered from her phone, "are inadmissible pursuant to the marital communications privilege and should be barred." In a footnote to her motion, defendant reserved the right to ask for an evidentiary hearing on unresolved factual issues, including the "voluntariness of any alleged consent by her."

¶ 9 The State renewed the arguments it made in Gliniewicz I that an exception to the marital-communications privilege should be applied in this case. The State also repeated its argument that the admissibility of the communications should be considered under the marital privilege and not under section 115-16 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-16 (West 2016) ), which generally bars spouses from testifying "as to any communication or admission made by either of them to the other or as to any conversation between them during marriage." The State also argued that defendant's consent to search her phone was not conditioned on the type of search to be performed. The consent form contained the following printed acknowledgement:

"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."

Attached to the consent form is a document listing the backup password for defendant's cell phone.

¶ 10 On March 5, 2019, the parties appeared in court for the first time following our remand. Defense counsel informed the trial court that the parties have "an extraction...