People v. Gliniewicz

2018 IL App (2d) 170490

119 N.E.3d 28

427 Ill.Dec. 648

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

v.Melodie GLINIEWICZ, Defendant-Appellee.

No. 2-17-0490

Appellate Court of Illinois, Second District.

Opinion filed November 2, 2018

Rehearing denied December 4, 2018

Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino, David J. Robinson, 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, both of Waukegan, and Vasili D. Russis, of Kelleher & Buckley, LLC, of North Barrington, for appellee.

JUSTICE BIRKETT delivered the judgment of the court, with 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 5/29B1(a)(1)(B)(i) (West 2016) ). On March 9, 2016, the grand jury returned an indictment charging defendant with four additional counts: one count of disbursing charitable funds without authority and for personal benefit ( 225 ILCS 460/19 (West 2016) ), one count of 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 counts of conspiracy (money laundering) (720 ILCS 5/82(a), 29B-1(a)(1)(B)(i) (West 2016) ). In the indictments, the State alleged that defendant's deceased husband, Charles Joseph Gliniewicz (Joe), participated in these offenses.

¶ 4 In its discovery answer, the State indicated that it would seek to admit electronic communications (e-mail and text messages) between defendant and Joe that were recovered from Joe's cell phone. On January 30, 2017, defendant filed a motion in limine requesting that the trial court bar the State from introducing any evidence of communications between her and Joe. In her motion, defendant alleged that the State had disclosed numerous documents detailing confidential communications between defendant and Joe, including e-mail and text messages. Specifically, defendant claimed, "[t]hese confidential communications were obtained via grand jury subpoena and without the knowledge or consent of defendant Melodie Gliniewicz."¹ Defendant cited People v. Trzeciak , 2013 IL 114491, 378 Ill.Dec. 761, 5 N.E.3d 141, and section 115-16 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-16 (West 2016) (witness disqualification) ) for the propositions that the marital-communication privilege has a long common-law history and was recognized to "promote marital harmony and stability." Defendant also noted that Illinois courts have specifically rejected the "joint criminal enterprise exception" to the marital-communication privilege, citing People v. Krankel , 105 Ill. App. 3d 988, 991, 61 Ill.Dec. 565, 434 N.E.2d 1162 (1982). Defendant also argued that the agency exception to the privilege, recognized in People v. Saunders , 288 Ill. App. 3d 523, 223 Ill.Dec. 840, 680 N.E.2d 790 (1997), did not apply to the communications, because the indictments alleged only that defendant and Joe were co-conspirators, and not that she was his agent.

¶ 5 In response, the State admitted that the communications at issue were made while defendant and Joe were married. However, the State also asserted that section 115-16 of the Code bars spousal testimony, not communications themselves. 725 ILCS 5/115-16 (West 2016). The State contended that the admissibility of the communications must be analyzed under the marital-communication privilege and not the spousal-testimonial privilege. The State then requested that the trial court recognize the joint-criminal-enterprise exception to the marital-communication privilege, citing United States v. Espudo , No. 12-CR-236-IEG, 2013 WL 2252637 (S.D. Cal. May 22, 2013).

¶ 6 In reply, defendant claimed that the State "[drew] an inapt distinction between spousal testimonial privilege and marital privilege." Citing Trzeciak , 2013 IL 114491, ¶¶ 56-59, 378 Ill.Dec. 761, 5 N.E.3d 141 (Theis, J., specially concurring), she noted that, in discussing the marital-communication privilege, our supreme court frequently referred to section 115-16 of the Code. Defendant argued that the marital-communication privilege applies to all forms of confidential spousal communications, including electronic messages such as texts and e-mails.

¶ 7 On May 11, 2017, the trial court granted defendant's motion and ordered that "[t]he State shall not present any testimony or other evidence at trial concerning confidential communications between defendant and her husband, without first obtaining the court's permission." The court also barred the State from mentioning any such "confidential communications at trial" without the court's permission. The order applied to "emails, text messages, as well as any other confidential written communications between defendant and her husband."

¶ 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, 12 Ill.Dec. 234, 369 N.E.2d 1248 (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, 12 Ill.Dec. 234, 369 N.E.2d 1248 (" ‘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, 45 Ill.Dec. 150, 412 N.E.2d 501 (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, 60 Ill.Dec. 951, 433 N.E.2d 1318 (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 email, 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

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