People v. Zimmerman

2018 IL App (4th) 170695

107 N.E.3d 938

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

v.Kirk ZIMMERMAN, Defendant–Appellee.

NO. 4–17–0695, 4–17–0696 cons.

Appellate Court of Illinois, Fourth District.

FILED June 18, 2018

Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and David E. Mannchen, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

John P. Rogers, of Rogers, Sevastianos & Bante, LLP, of Clayton, Missouri, for appellee.

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

¶ 1 In July 2015, a grand jury indicted defendant, Kirk Zimmerman, for the first degree murder ( 720 ILCS 5/9–1(a)(1) (West 2014) ) of defendant's ex-wife, Pamela Zimmerman. The State later filed two motions in limine that sought to (1) introduce identification testimony pursuant to section 115–12 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/11512 (West 2016) ) and Illinois Rule of Evidence 801(d)(1) (eff. Oct. 15, 2015) and (2) introduce statements by Pamela under the doctrine of forfeiture by wrongdoing. See Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011). Defendant subsequently filed his own motions in limine to exclude the same evidence the State sought to introduce.

¶ 2 The trial court first took up the identification testimony and conducted a hearing over multiple days in March and April 2017, at which several witnesses testified. Following the hearing, the court granted the State's motion in part, ruling that only one of the State's witnesses could testify as to a prior identification.

¶ 3 Over five days in May 2017, the trial court conducted a hearing, at which several witnesses testified on the issue of forfeiture by wrongdoing. In July 2017, the court issued a written order finding defendant killed Pamela with the intention of preventing her from testifying. However, the court deemed only two oral statements and one set of documents admissible pursuant to the forfeiture by wrongdoing doctrine. The court excluded all other proposed statements because they were "not probative of any material fact; irrelevant; speculative; remote; improper lay opinion; lack[ed] * * * personal knowledge; cumulative; improper character evidence; and/or the probative value of the evidence [was] substantially outweighed by its prejudicial effect." Despite so ruling, the court noted the State could still seek to introduce the evidence at trial.

¶ 4 In August 2017, the State filed two motions to reconsider each of the trial court's rulings. The State argued the court applied the wrong standards in evaluating the evidence and unduly restricted the State's ability to present its case. Alternatively, the State requested the court explain with specificity why the court believed certain statements were inadmissible so the State could address the court's concerns before again seeking the statements' admission at trial. The State also explained that it wished to properly structure its case so as to prevent an inadvertent violation of the order in limine and a mistrial. The court denied the motions to reconsider. The State filed an interlocutory appeal.

¶ 5 The State appeals, arguing that the trial court erred by (1) granting its motions in limine only in part and (2) deeming inadmissible certain prior identification testimony and certain statements under the doctrine of forfeiture by wrongdoing. We disagree and affirm.

¶ 6 I. BACKGROUND

¶ 7 The following testimony and documentary evidence were presented to the trial court at the hearings on the motions in limine .

¶ 8 A. The Underlying Murder and Initial Investigation

¶ 9 Sometime on the evening of November 3, 2014, defendant's ex-wife, Pamela Zimmerman, was murdered in her office in an area of Bloomington, Illinois, commonly known as Doctors Park. On November 4, 2014, at approximately 7:30 a.m., her body was discovered by Ina Hess, Pamela's secretary. Pamela had been shot multiple times, including once in the head. Investigators did not discover anything of significant value missing from the office. Pamela's wallet was eventually located several streets from the office in a ditch, but the wallet contained cash and all of her credit cards. Her cellular phone was also found several streets away.

¶ 10 Later that day, investigators approached defendant at State Farm Insurance Company where he worked and, after informing him of Pamela's death, asked him to come to the police station for an interview. He complied, and the police interviewed him for approximately six hours but ultimately released him. The police interviewed him several times in the following days but did not arrest him for the murder. The investigation continued for several months. In July 2015, a grand jury indicted defendant for first degree murder.

¶ 11 B. The Identification Testimony Motions and Proceedings

¶ 12 1. Defendant's Motion To Suppress

¶ 13 In September 2016, defendant filed a motion to suppress identification. Although the trial court ultimately granted that motion in part, that ruling is not at issue in this appeal. Nonetheless, the testimony presented at the hearing on that motion is pertinent to this appeal.

¶ 14 Defendant sought to suppress the identification of defendant by Mrs. Maria Legg. Defendant argued the photo lineup at which Mrs. Legg identified defendant was impermissibly suggestive. Defendant further contended Mrs. Legg's testimony was inherently unreliable.

¶ 15 The trial court conducted a hearing on the motion on three separate days in March and April 2017. Bloomington Detective Tim Power testified about the police investigation of the death of Pamela Zimmerman. Power stated the police received an anonymous tip in March 2016 that someone may have seen defendant at the scene of the crime on the night of the murder. The tip led police to Ron and Annis Guenther, who informed them about a meeting they had with Maria and Charles Legg at a Hardee's restaurant in the fall of 2015. During that meeting, Mrs. Legg informed them she had seen defendant in the Doctors Park parking lot on November 3, 2014, and recognized him when his picture was printed in the newspaper following his July 2015 arrest.

¶ 16 Later in March 2016, Power interviewed the Leggs in their home and administered a photo lineup via a computer program. Both the interview and the lineup were recorded and reviewed by the court. During the interview, Mrs. Legg described (1) what she saw on November 3, 2014, (2) her identification of defendant as the man she saw on that night from a picture in the newspaper, and (3) her conversation with the Guenthers and her husband at the Hardee's regarding both of these events. Power testified that following the interview, Mrs. Legg viewed a photo lineup and indicated she believed the first photo was the man she saw. The first photo was defendant and was the same photo published in the local newspaper on numerous occasions.

¶ 17 Mrs. Legg testified she was dropping off recycling at St. Luke Union Church around 6 p.m. on November 3, 2014. The church shares a parking lot with Doctors Park. Mrs. Legg testified she saw a man exiting the rear of what was later identified as Pamela's office. The man was tightly holding a black garbage bag and stared directly at her. Mrs. Legg stated she was scared because she was alone, but she looked right at the man. The parking lot was well-lit, and the man eventually walked in her direction, but before reaching her, he stopped at a car parked under a light post. He put the garbage bag in the car's trunk before getting in the car. As Mrs. Legg then exited the parking lot, she drove past the man as he sat in his car. The next day, she saw in the newspaper that a murder occurred in Doctors Park. She called her husband, who was out of town, and told him what had happened. She asked him if she should talk to the police. Her husband said she should not because the man might come after them.

¶ 18 Months later, Mrs. Legg saw a photo of defendant in the newspaper and recognized him as the man she saw on the night of the murder. (The trial court took judicial notice of the fact that the first time defendant's picture was published in the newspaper was July 22, 2015.)

¶ 19 Mrs. Legg further testified that sometime thereafter, she and her husband met the Guenthers at a fast-food restaurant, and she informed both of them about what she saw on the night of the murder. She also told them she subsequently identified defendant as the man she saw from his photo in the newspaper. Mrs. Legg also testified about the police interview and photo lineup. Additionally, Mrs. Legg made an in-court identification of defendant.

¶ 20 Annis Guenther testified she and her husband sometimes met the Leggs at a Hardee's. They did not socialize with the Leggs outside of that setting. Mrs. Guenther testified that on one particular occasion, likely in the fall of 2015, Mrs. Legg was very upset and told them what she had seen on November 3, 2014. Mrs. Legg also told them about recognizing defendant after seeing his picture in the newspaper. Mrs. Guenther stated she did not tell the police but did share the information with others.

¶ 21 Charles Legg testified that in early November 2014, his wife called him upset because she had seen a strange man while dropping off recycling at St. Luke Union Church. He added that she later recognized the man when his picture was published in the newspaper. Mr. Legg also testified about seeing the Guenthers at Hardee's and that his wife informed them of her experiences.

¶ 22 After the hearing, the trial court ruled Mrs. Legg's identification of defendant from the photo lineup was inadmissible because it was impermissibly suggestive. However, the court found Mrs. Legg had a sufficient independent recollection to render her in-court identification admissible.

¶ 23 2. The State's Motion in Limine To Admit Statements of Identification

¶ 24 In May 2017, the State filed a motion in limine to admit statements of...