People v. Saunders
State: Illinois
Court: 4th District Appellate
Docket No: 4-96-0579
Case Date: 06/02/1997
NO. 4-96-0579
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Vermilion County
FRED E. SAUNDERS, ) No. 96CF70
Defendant-Appellee. )
) Honorable
) Thomas J. Fahey,
) Judge Presiding.
JUSTICE GREEN delivered the opinion of the court:
This case concerns the meaning of the phrase "or as to
matters in which either has acted as agent of the other" as it
appears in section 115-16 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/115-16 (West Supp. 1995)), which defines the
husband and wife privileges against certain testimony by one spouse
against another in criminal cases. Section 115-16 of the Code
states, in part, as follows:
"In criminal cases, husband and wife may
testify for or against each other. Neither,
however, may testify as to any communication
or admission made by either of them to the
other or as to any conversation between them
during marriage, except in cases in which
either is charged with an offense against the
person or property of the other, in case of
spouse abandonment, when the interests of
their child or children or of any child or
children in either spouse's care, custody, or
control are directly involved, when either is
charged under Section 12-13, 12-14, 12-14.1,
12-15, or 12-16 of the Criminal Code of 1961
and the victim is a minor under 18 years of
age in either spouse's care, custody, or
control at the time of the offense, or as to
matters in which either has acted as agent of
the other." (Emphasis added.) 725 ILCS
5/115-16 (West Supp. 1995).
We hold that the testimony involved here was not so privileged.
On February 13, 1996, defendant, Fred E. Saunders, was
charged in the circuit court of Vermilion County with two counts of
theft of property in excess of $300 (720 ILCS 5/16-1(a)(1)(A) (West
Supp. 1995)) as was his wife, Catherine Saunders. On June 3, 1996,
defendant filed a motion seeking an in limine order prohibiting the
State from examining Catherine at trial concerning conversations
between them during the marriage. On June 28, 1996, the circuit
court reluctantly issued an order prohibiting such testimony unless
the State could show that Catherine had been acting as defendant's
agent at the time of the conversation.
The parties again came before the court on July 23, 1996.
The prosecutor indicated he was concerned that he could not show
that Catherine was acting as an agent of defendant at the time of
the conversations he wished to introduce into evidence. The
prosecutor requested the adoption of a rule that spouses could be
required to disclose conversations between them that occurred in
the course of a joint criminal enterprise. The court stated that
because of the decision of the third district in People v. Krankel,
105 Ill. App. 3d 988, 434 N.E.2d 1162 (1982), the court could not
do so. Accordingly, an in limine order was entered prohibiting the
State from offering such evidence. The State filed a certificate
of impairment and a notice of appeal pursuant to Supreme Court Rule
604(a)(1). 145 Ill. 2d R. 604(a)(1). We reverse and remand with
directions.
As the issue presented is entirely a question of law, we
view the matter de novo. People v. Garriott, 253 Ill. App. 3d
1048, 1050, 625 N.E.2d 780, 783 (1993). Defendant's motion for an
in limine order filed June 3, 1996, merely requested that
conversations between defendant and Catherine during the course of
their marriage be barred from evidence. More detail in regard to
the dispute is found in the statement of the prosecutor at the time
of the first hearing on the motion in limine. The prosecutor
stated the State would produce testimony from Catherine that on
various occasions defendant asked her to take a credit card (which
had apparently been stolen from her grandfather's bedroom) to a
cash station, withdraw money with it, and bring the money back to
the defendant.
The major thrust of the State's argument on appeal is not
that Catherine was the agent of defendant, but that we should adopt
a rule that would require a spouse to testify as to conversations
with the other spouse when those conversations took place in the
course of a joint criminal enterprise. This rule has been adopted
in federal cases (United States v. Evans, 966 F.2d 398, 400-02 (8th
Cir. 1992); United States v. Kahn, 471 F.2d 191, 194-95 (7th Cir.
1972)), the decisions of several state supreme courts (State v.
Witchey, 388 N.W.2d 893 (S.D. 1986); State v. Smith, 384 A.2d 687
(Me. 1978)), and those of various state courts of intermediate
review. The doctrine has never been adopted in Illinois and was
rejected by the third district in Krankel.
We are not bound by the decisions of other districts of
the appellate court of this state (In re May 1991 Will County Grand
Jury, 152 Ill. 2d 381, 398, 604 N.E.2d 929, 938 (1992)), although
we respect and commend their decisions. However, we are bound by
the language of section 115-16 of the Code. The only one of the
four exceptions to the rule permitting testimony of conversations
between spouses that is relevant here is the one concerning
"matters in which either has acted as agent of the other." 725
ILCS 5/115-16 (West Supp. 1995). We agree with the circuit court
that such agency must be shown to permit the conversation to be
admitted.
The term "agent" has been defined as "[a] person
authorized by another (principal) to act for or in place of him;
one intrusted with another's business" (Black's Law Dictionary 63
(6th ed. 1990)). Under the circumstances described by the
prosecutor, Catherine would seem to have been acting as defendant's
agent when, at his direction, she took a stolen credit card to a
cash station, obtained cash, and delivered it to defendant. In
Krankel, the opinion indicated the wife aided her husband in
stealing some silverware and taking it to a place to be sold. It
differs from here in that there the wife was participating for her
mutual benefit. Here, the evidence indicated the wife (Catherine)
was merely acting for the benefit of the defendant by getting money
and delivering it to her husband (defendant). We conclude that
this case is substantially different from Krankel. However, even
if this case is not substantially different than Krankel, to the
extent Krankel shows the existence of an agency between the wife
and husband, we elect not to follow Krankel.
The defendant maintains the State has waived any
contention that Catherine was an agent of defendant. The State did
not waive the question at the first hearing on the motion in limine
just because the prosecutor expressed uncertainty as to whether
Catherine was an agent. The prosecutor's position was more
definite as to the difficulty of finding the existence of an agency
at the second hearing, but he did not directly waive the issue and
the defense was not prejudiced by the action taken by the State.
In its brief as appellant, the State revived the agency question
and defendant had an opportunity to respond in his brief as
appellee.
For the reasons stated, we reverse the in limine order to
the extent it would prohibit testimony by Catherine as to defendant
requiring her to take the credit card, obtain money, and give the
money to him. We remand to the circuit court for further
proceedings consistent herewith.
Reversed and remanded with directions.
KNECHT and COOK, JJ., concur.
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