People v. Burnidge
Annotate this Case
People v. Burnidge, No. 81343
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 81343--Agenda 6--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARK BURNIDGE, Appellant.
Opinion filed September 11, 1997.
JUSTICE MILLER delivered the opinion of the court:
After a jury trial in the circuit court of Lake County, the
defendant, Mark Burnidge, was convicted of two counts of aggravated criminal
sexual abuse. The trial judge sentenced the defendant to 36 months'
probation, together with a nine-month term of periodic imprisonment. The
judge also ordered the defendant to pay a total of $1,500 in restitution and
fines. The appellate court affirmed the defendant's convictions and sentence.
279 Ill. App. 3d 127. We allowed the defendant's petition for leave to appeal
(155 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate
court.
Only a brief recitation of the evidence in this case is necessary
here. At trial, R.R., who was 15 years old at the time of the offenses,
testified that she and a friend, J.P., arrived at St. Matthew's Lutheran
Church, located in Lake Zurich, around 7:30 p.m. on April 16, 1994. They were
attending a youth function at the church that night, and they came early to
prepare for the event. The defendant, who was then 23 years old, and who
served as a counselor to the youth group, was already present when the two
girls arrived. According to the complaining witness, after she and the
defendant had set up a table in the lobby of the building and were returning
to the classroom area, she and the defendant stopped in the gymnasium, where
the defendant led her to the stage. There, the defendant kissed her and
reached under her shirt and bra and touched her breasts. The defendant also
placed R.R.'s hand on the front of his pants. R.R. told the defendant to
stop, and he complied.
R.R. testified further that, about 5 or 10 minutes after the
incident in the gymnasium, while she and the defendant were in the basement
of the building looking for a video cassette recorder, the defendant again
kissed her on the mouth, reached under her clothing and touched her breasts,
and placed her hand on the front of his pants. R.R. asked the defendant to
stop; he did initially but resumed a few moments later. R.R. then told the
defendant that they had to go, and they left the basement. R.R. rejoined J.P.
upstairs and asked her friend to accompany her to the restroom. There, R.R.
straightened her bra, which the defendant had unfastened, and told J.P. what
had happened. Later that evening, R.R. reported the incidents to Rev. Carlton
Payne, the assistant pastor of the church. R.R. testified that, at a
subsequent meeting attended by her, her parents, Rev. Payne, and the
defendant, the defendant apologized for what he had done. R.R. denied putting
her arm around the defendant or resting her head on his shoulder, as the
defendant, in his own testimony at trial, said she had done.
Over a defense objection, R.R. also described a similar incident
that occurred in August 1993. On that occasion, R.R. had gone to the church
to help her mother do some cleaning. The defendant was there, and he invited
R.R. to play basketball with him in the gym. After playing a while, the
defendant led R.R. to the stage, where he kissed her and placed his hands
under her clothing and felt her breasts. R.R. reported this incident to Rev.
Payne about a week later but did not tell anyone else about it at the time.
After the incidents in April 1994, however, R.R. informed her parents about
the earlier occurrence.
J.P. provided testimony corroborating R.R.'s account of their
preparations for the church event that night. According to J.P., after R.R.
and the defendant had returned from a search for the video cassette recorder,
R.R. suggested that the two girls go to the restroom. There, R.R.
straightened her bra and tucked in her shirt. R.R. seemed nervous and began
to cry. R.R. then told J.P. that the defendant had kissed her and "tried to
go up her shirt."
The defendant also testified at trial, admitting to one instance of
physical contact with R.R. The defendant said that he, R.R., and J.P. first
set up a table in the lobby of the building. Afterwards, they were searching
for a video cassette recorder, and at one point the defendant told the two
girls that he would look downstairs for it. The defendant testified that as
he was going to the lower level of the building, R.R. appeared behind him and
said that she, too, was going to look for the video recorder. According to
the defendant, as they were walking together down a hallway in the basement,
R.R. put her arm around the defendant's waist and rested her head on his
shoulder. The defendant testified that, when they reached the end of the
hallway, he kissed R.R. and placed his hand on her breasts, over her
clothing. The defendant stated that the incident lasted about 10 seconds, and
he explained that he stopped what he was doing because it was not proper.
According to the defendant, neither he nor R.R. said anything during this
time. The defendant denied having any other physical contact with R.R. on
April 16, 1994, and he also denied the August 1993 incident described by her.
At the defendant's request, the trial judge instructed the jury on
battery as an included offense of the two charges of aggravated criminal
sexual abuse. The jury found the defendant guilty of both counts of
aggravated criminal sexual abuse, as well as of battery. The trial judge
later vacated the battery conviction because it was included in the principal
charges. On the two counts of aggravated criminal sexual abuse, the trial
judge sentenced the defendant to 36 months' probation, with a nine-month term
of periodic imprisonment, and ordered the defendant to pay a total of $1,500
in fines and in restitution; the restitutionary portion of the order provided
reimbursement to the complainant and her family for counseling costs.
The appellate court affirmed the defendant's convictions and
sentence. 279 Ill. App. 3d 127. The court rejected, among other contentions,
the defendant's "novel argument" that the entire prosecution should have been
dismissed because the State's evidence was tainted by a clergyman's improper
disclosure of confidential information received from the defendant. 279 Ill.
App. 3d at 132. We allowed the defendant's petition for leave to appeal. 155
Ill. 2d R. 315(a).
The only question raised on appeal by the defendant concerns the
trial judge's refusal to dismiss the present case because, in the defendant's
view, it was tainted by a clergyman's improper disclosure of conversations
between the clergyman and the defendant. This issue was raised prior to
trial, when the defendant asked the trial judge to suppress all evidence
derived from conversations between the defendant and Rev. John Golisch, and
reported by Rev. Golisch to the Department of Children and Family Services
(DCFS). Rev. Golisch was a pastor at another Lutheran church and a
psychologist, and Rev. Payne had referred the defendant to him for
counseling. After speaking with the defendant, Rev. Golisch was not sure
whether he was required to file a report with DCFS pursuant to section 4 of
the Abused and Neglected Child Reporting Act (325 ILCS 5/4 (West 1994)). Rev.
Golisch explained at the pretrial hearing that he called DCFS for advice and
was told that as a clergyman he was not required to submit a report but that
as a psychologist he was. The statute requires psychologists, but not members
of the clergy, to report instances of abuse. Rev. Golisch subsequently
submitted to DCFS a report that identified R.R. as a victim of abuse but did
not name the offender. Also at the pretrial hearing, the parties stipulated
that DCFS relayed Rev. Golisch's report to the Lake County sheriff's office,
and that the sheriff's office then brought the matter to the State's
Attorney's attention.
The trial judge agreed with the defendant that Rev. Golisch could
not be compelled to testify to his conversations with the defendant and that
Rev. Golisch's report could not be introduced into evidence. The trial judge
refused the defendant's request, however, that he suppress all the other
evidence obtained in the wake of the report. Separately, the trial judge
determined that conversations between the defendant and Rev. Payne and Deacon
Todd Martin were also protected by the clergymen privilege and that those
witnesses therefore could not be compelled to testify about what the
defendant had said in confidence to them.
The defendant contends that his conversations with Rev. Golisch
were privileged and that section 4 of the Abused and Neglected Child
Reporting Act did not require the clergyman to submit a report to DCFS. The
defendant argues further that the Lake County authorities would not have
learned about the present offenses had it not been for the allegedly improper
disclosure made by Rev. Golisch, and the defendant believes that all the
information traceable to the disclosure must therefore be excluded. In
essence, the defendant seeks to have the entire prosecution quashed because
it is the "fruit of the poisonous tree," having been derived, in the
defendant's view, solely from Rev. Golisch's report. Accordingly, the
defendant asks that his convictions be reversed outright, without a remand
for retrial. In response, the State contends that the defendant's
conversations with Rev. Golisch were not privileged, that Rev. Golisch was
required to report the instances of abuse to DCFS, and that the defendant
waived any privilege he might have possessed. Finally, the State argues that
suppression of all the evidence is not an appropriate remedy in this case. We
agree with the State that suppression is not required here, and we do not
address the State's alternative arguments.
Just as the defendant seeks application of the exclusionary rule to
what he characterizes as the fruit of a poisonous tree, so, too, do we
believe that exceptions to the poisonous tree doctrine could be invoked if
the exclusionary rule were to apply. Assuming, without deciding, that
suppression might be necessary in appropriate cases involving violations of
evidentiary privileges (see Walstad v. State, 818 P.2d 695, 699 & n.6 (Alaska
App. 1991)), we do not believe that so drastic a remedy would be warranted
here. It should be noted that information regarding the defendant's
involvement in the present offenses was not secret, even if it is assumed
both that the defendant's conversations with Rev. Golisch were privileged and
that Rev. Golisch was not required to file a report with DCFS. The
complaining witness' own testimony implicated the defendant in these
offenses, and the defendant, through an admission made to the victim and her
family, had himself acknowledged responsibility for what he had done. In Wong
Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963),
the Supreme Court determined that the exclusionary rule is not applicable
when the prosecution acquires the evidence in question from a source
independent of the alleged illegality. R.R. and her family provided the State
with an independent basis for the prosecution. We also note that the report
made by Rev. Golisch to DCFS did not identify the defendant by name,
referring to him only as a helper to the church youth group to which R.R.
belonged. Apparently, it was not until further investigation that the State
learned of the defendant's identity.
The defendant maintains, however, that the present case would not
have come to the attention of the authorities in Lake County had it not been
for Rev. Golisch's report to DCFS, and the defendant therefore insists that
the entire prosecution be quashed. As support for this argument, the
defendant emphasizes that both Rev. Payne and the complaining witness' family
believed, at least initially, that the matter could be resolved entirely
within the church, and without the intervention of the civil authorities.
In Nix v. Williams, 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984), the Supreme Court recognized the "inevitable discovery"
exception to the rule requiring the exclusion of evidence obtained as a
result of a violation of a defendant's constitutional rights. The court in
Nix held that evidence arguably tainted by a prior illegality may be
introduced if the prosecution is able to show that "the evidence in question
would inevitably have been discovered without reference to the police error
or misconduct." Nix, 467 U.S. at 448, 81 L. Ed. 2d at 390, 104 S. Ct. at
2511. The rationale for the "inevitable discovery" exception is that, while
"the prosecution is not to be put in a better position than it would have
been in if no illegality had transpired," the prosecution should not be put
"in a worse position simply because of some earlier police error or
misconduct." (Emphasis in original.) Nix, 467 U.S. at 443, 81 L. Ed. 2d at
387, 104 S. Ct. at 2508.
Although the issue was not phrased in these precise terms at the
pretrial hearing on the defendant's motion to suppress, we nonetheless
believe that the record belies the defendant's contention that the
complaining witness and her parents would not have pursued this matter
outside the church. At the pretrial hearing, the complaining witness' father,
who was a deacon in the church, acknowledged that he, as well as the others
involved in this case, sought initially to resolve this problem internally,
without the involvement of civil authorities. The complaining witness' father
also said, however, that in his own mind he kept open the possibility that
criminal charges could be brought. R.R.'s father explained further that he
met with Rev. Harold Krueger and Rev. Payne, the pastor and assistant pastor
of the church, on April 19, several days after the incidents charged here.
R.R.'s father told the two clergymen that he was very concerned about the
matter, that he did not believe that the defendant should be associated with
the youth group, and that the defendant, who was a church trustee, should
relinquish his set of keys to the church.
R.R.'s father testified further that he next discussed the matter
with Rev. Krueger and Rev. Payne several weeks later; also attending that
meeting were the complaining witness' mother and the parents of the J.P., who
testified at trial. R.R.'s father was angry that more had not been done about
the situation, and he continued to insist that the defendant should surrender
his keys to the building and adopt a lower profile in church activities.
The victim impact statement submitted by the complaining witness'
parents, and introduced into evidence as an attachment to the presentence
report, also shows the family's growing sense of displeasure with their
church's response to the accusations against the defendant. In a joint
statement, the complaining witness' mother and father said that although they
had initially believed that the matter could be resolved within the confines
of their church, they later became dissatisfied with what the parents
believed were insufficient measures taken by the church leaders in response
to the defendant's misconduct. The statement explained, "First, it was the
defense attorney's position that this incident should have never gotten to
court; that it should have been handled in the church. It was our INITIAL
intent that this matter be handled by the church, but in our opinion, it was
not handled, it was ignored!" (Emphasis in original.) The parents expressed
their surprise at what they perceived to be the church's reluctance to make
any response to the charges, and noted that the defendant was allowed to
participate in the church youth group even after R.R. had reported the August
1993 incident to Rev. Payne. The parents' victim impact statement continued,
"About the time we realized that we would be leaving the church, Pastor Payne
notified us that DCFS would be contacting us. At this point, we decided to
cooperate fully with the Lake County Sheriff's Department and DCFS. We have
no regrets about what has happened. We never had to make the decision to call
the police, but we never ruled it out either." The family eventually decided
to leave this church and to join another one in a different town.
The complaining witness, in her own victim impact statement, also
expressed the view that the church had not handled the situation properly.
R.R. explained that the family initially believed that the matter could be
resolved within the church but later welcomed the intervention of the civil
authorities. In her own statement, which she read at the sentencing hearing,
R.R. said, "At first we weren't happy that officials were getting involved.
Now we are happy they came to help us." The testimony and victim impact
statements submitted by R.R. and her parents demonstrate to us that the
information the defendant seeks to suppress would have come to light even
without the involvement of DCFS.
In sum, we do not agree with the defendant that the exclusionary
rule requires suppression of all the evidence in this case. By requesting
that the entire prosecution be dismissed, the defendant is seeking a remedy
that is much more extensive in scope than the evil he complains of. In the
circumstances presented here, the trial judge granted the defendant the full
measure of relief that was necessary to vindicate the privilege the defendant
asserts. Following a pretrial hearing, the judge barred the introduction of
the report made by Rev. Golisch to DCFS, as well as testimony by the
clergymen to whom the defendant had spoken about the matter--Rev. Golisch,
Rev. Payne, and Deacon Martin. By excluding this evidence, the trial judge
provided the defendant with an appropriate remedy for the alleged breach of
the privilege. See People v. Knippenberg, 66 Ill. 2d 276 (1977).
The special concurrence presupposes that we have determined that
the exclusionary rule is available in these circumstances, but in this case
we have only assumed its application. Because the defendant raises no further
challenge to the proceedings below, we therefore affirm his convictions and
sentence. For the reasons stated, the judgment of the appellate court is
affirmed.
Judgment affirmed.
CHIEF JUSTICE FREEMAN, specially concurring:
Defendant in this case has framed the issue on appeal as one
requiring an analysis which is ordinarily reserved for those cases
challenging the admissibility of evidence as being the "fruit of the
poisonous tree." The majority has inclined its ear and, correspondingly,
engages in an analysis to determine whether, regardless of Rev. Golisch's
violation of the clergy testimonial privilege, the challenged evidence would
have been inevitably discovered and, therefore, properly admissible. Slip op.
at 5. I agree with the majority's ultimate conclusion that the trial court
provided defendant with the appropriate remedy for an alleged breach of the
clergy privilege. Slip op. at 8. I disagree, however, with the majority's
decision to apply the "fruit of the poisonous tree doctrine" and its
correlative inevitable discovery exception in disposing of this case. I
therefore write separately to address this point.
The "fruit of the poisonous tree" doctrine was born out of fourth
amendment concerns over improper police conduct in the gathering of evidence.
See Nix v. Williams, 467 U.S. 431, 442, 81 L. Ed. 2d 377, 386, 104 S. Ct. 2501, 2508 (1984). Generally, evidence obtained through the exploitation of
illegal police conduct must be excluded from evidence at trial. See Note, The
Inevitable Discovery Exception To The Constitutional Exclusionary Rules, 74
Colum. L. Rev. 88 (1974). This exclusionary rule deprives the prosecution of
evidence tainted by official wrongdoing and thereby discourages future
improprieties. See United States v. Jones, 72 F.3d 1324, 1330 (7th Cir.
1995).
An exception to the exclusionary rule is the "inevitable discovery
doctrine." People v. Edwards, 144 Ill. 2d 108, 143 (1991); Nix v. Williams,
467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984). The exception serves
to block the setting aside of convictions that would have been obtained
without police misconduct. Nix, 467 U.S. at 443 n.4, 81 L. Ed. 2d at 387 n.4,
104 S. Ct. at 2509 n.4. If the prosecution can establish by a preponderance
of the evidence that the information inevitably would have been discovered by
lawful means, then the evidence should be received. Nix, 467 U.S. at 444, 81 L. Ed. 2d at 387-88, 104 S. Ct. at 2509.
The majority, without supporting authority, extends the reach of
the fruit of the poisonous tree doctrine to now cover more than police
misconduct cases, but also violations of the clergy privilege by clergymen.
Application of the doctrine in these cases is simply inappropriate. See
People v. Ward, 199 A.D.2d 573, 604 N.Y.S.2d 320 (1993) (fruit of poisonous
tree doctrine not applied to suppress evidence flowing from privileged
communication between clergy and penitent); see also Walstad v. State, 818 P.2d 695, 699 n.6 (Alaska App. 1991) (noting that there seems to be
considerable doubt as to the extent to which the fruits of the poisonous tree
doctrine should apply in cases involving violations of evidentiary
privileges). The availability of the doctrine in an evidentiary privilege
case, such as this one, could have undesirable consequences. Specifically, in
the event that the inevitable discovery exception does not operate to purge
the taint of evidence obtained as a result of a violation of the clergyman's
privilege, the availability of the exclusionary rule will operate to exclude
probative evidence from admission at trial. Moreover, application of the rule
in other than illegal police conduct cases is wholly inconsistent with the
purpose of the exception--deterring police misconduct.
Even assuming that application of the fruit of the poisonous tree
doctrine is proper in evidentiary privilege cases, I disagree that the
inevitable discovery exception would operate to "purge the taint" of the
challenged evidence here. The majority believes otherwise, finding that
because R.R.'s parents had not ruled out the possibility of pursuing criminal
charges, evidence concerning the criminal sexual abuse would have been
inevitably discovered regardless of Rev. Golisch's report to DCFS. See slip
op. at 6-7. This analysis is plagued with infirmities. First, because the
State has not engaged in any illegal conduct in acquiring Rev. Golisch's
statements, it bears no burden of proof on the issue of inevitable discovery.
That, of course, leaves the court to inappropriately make this factual
determination. See Jones, 72 F.3d at 1334 (stating that typically a
preponderance of the evidence burden of proof for purposes of inevitable
discovery requires testimony rather than mere argument).
Second, courts will generally find that evidence would have been
inevitably discovered where such evidence would have been, inter alia,
discovered through an independent line of investigation untainted by the
illegal conduct and the independent investigation was already in progress at
the time the evidence was unconstitutionally obtained. People v. Durgan, 281
Ill. App. 3d 863, 867 (1996), citing People v. Perez, 258 Ill. App. 3d 133,
138 (1994); see also Nix, 467 U.S. at 459, 81 L. Ed. 2d at 397, 104 S. Ct. at
2517 (Brennan, J., dissenting, joined by Marshall, J.). In this case, there
was no independent police investigation in progress. The investigation did
not begin until after Rev. Golisch made his report to DCFS.
Third, the finding of inevitable discovery requires proof by a
preponderance of the evidence that the challenged evidence would have been
discovered despite the illegal conduct. It is important that courts be
extremely careful not to apply the " `inevitable discovery' rule upon the
basis of nothing more than a hunch or speculation as to what otherwise might
have occurred." See 1 W. LaFave, Criminal Procedure sec. 9.3, at 741 (1984).
Speculation and assumption do not satisfy the dictates of Nix. See Jones, 72 F.3d 1324 (holding that for inevitable discovery exception to apply,
government must establish by preponderance of evidence not only that there
would have been probable cause for a lawful search, but that the search in
fact would have occurred).
As the majority itself notes, R.R.'s parents had originally
intended for this matter to be "handled in the church." Slip op. at 7.
Although the parents had thoughts of filing a complaint with the police,
there is no evidence that the parents would have, in fact, contacted the
police. Further, it is insufficient for purposes of inevitable discovery that
the police might or could have obtained R.R.'s parents' statement. Clearly,
to conclude that R.R.'s parents would have made a police report is
speculative. Thus, the majority's reliance on the above facts to support
inevitable discovery falls far short of the preponderance of the evidence
burden of proof mandated by the Court in Nix.
There is one final factor which points up the inappropriateness of
the use of the inevitable discovery exception in this case. As I have stated,
the inevitable discovery exception flows out of fourth amendment concerns for
overreaching by police. In the typical case, the focus of the inquiry is on
the future intended investigatory conduct of the violator--the police.
For its finding of inevitable discovery, the majority here focuses
its inquiry, not on the future intended conduct of the person having
allegedly violated the privilege, Rev. Golisch, but instead, on the witnesses
to the offense. Consistent with the inevitable discovery analysis, the focus
of the inquiry here should necessarily be on the intended future conduct of
Rev. Golisch in his investigation of the offense. Because Rev. Golisch was,
of course, not engaged in an investigation, consideration of his future
conduct would leave the inevitable discovery inquiry yet unanswered.
The exclusionary rule, out of which was created the inevitable
discovery exception, is the constitutional response to illegally seized
evidence. The rule serves the legitimate purpose of deterring police
misconduct, while its exceptions operate to defeat the rule's absolute bar to
the admissibility of illegally seized evidence. The clergy testimonial
privilege, which is statutorily created, also protects legitimate competing
interests. However, privileges should be allowed only to the extent necessary
to achieve their desired purposes. See J. Hilliard, The Public's Right to
Evidence--Sometimes: The Clergy Testimonial Privilege, 83 Ill. B.J. 182, 182-
83 (1995). To apply fourth amendment principles to a statutorily created
privilege inappropriately elevates the privilege to constitutional
dimensions. See Walstad, 818 P.2d at 699 n.6 (stating that if government was
party to improper breach and a constitutional privilege was involved the
legal fruits doctrine will apply). Incidentally, it is generally accepted
that the clergy privilege is not required by the first amendment. See 83 Ill.
B.J. at 183. The clergy privilege, not being of constitutional dimension,
merits for its violation no constitutional remedy.
In my view, the appellate court's analysis of the issue presented
in this appeal is the proper one. Rather than suggest that fourth amendment
principles are even appropriate in cases involving evidentiary privileges, I
would simply have affirmed the appellate court.
JUSTICE BILANDIC joins in this special concurrence.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 81343--Agenda 6--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARK BURNIDGE, Appellant.
Opinion filed September 11, 1997.
JUSTICE MILLER delivered the opinion of the court:
After a jury trial in the circuit court of Lake County, the
defendant, Mark Burnidge, was convicted of two counts of aggravated criminal
sexual abuse. The trial judge sentenced the defendant to 36 months'
probation, together with a nine-month term of periodic imprisonment. The
judge also ordered the defendant to pay a total of $1,500 in restitution and
fines. The appellate court affirmed the defendant's convictions and sentence.
279 Ill. App. 3d 127. We allowed the defendant's petition for leave to appeal
(155 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate
court.
Only a brief recitation of the evidence in this case is necessary
here. At trial, R.R., who was 15 years old at the time of the offenses,
testified that she and a friend, J.P., arrived at St. Matthew's Lutheran
Church, located in Lake Zurich, around 7:30 p.m. on April 16, 1994. They were
attending a youth function at the church that night, and they came early to
prepare for the event. The defendant, who was then 23 years old, and who
served as a counselor to the youth group, was already present when the two
girls arrived. According to the complaining witness, after she and the
defendant had set up a table in the lobby of the building and were returning
to the classroom area, she and the defendant stopped in the gymnasium, where
the defendant led her to the stage. There, the defendant kissed her and
reached under her shirt and bra and touched her breasts. The defendant also
placed R.R.'s hand on the front of his pants. R.R. told the defendant to
stop, and he complied.
R.R. testified further that, about 5 or 10 minutes after the
incident in the gymnasium, while she and the defendant were in the basement
of the building looking for a video cassette recorder, the defendant again
kissed her on the mouth, reached under her clothing and touched her breasts,
and placed her hand on the front of his pants. R.R. asked the defendant to
stop; he did initially but resumed a few moments later. R.R. then told the
defendant that they had to go, and they left the basement. R.R. rejoined J.P.
upstairs and asked her friend to accompany her to the restroom. There, R.R.
straightened her bra, which the defendant had unfastened, and told J.P. what
had happened. Later that evening, R.R. reported the incidents to Rev. Carlton
Payne, the assistant pastor of the church. R.R. testified that, at a
subsequent meeting attended by her, her parents, Rev. Payne, and the
defendant, the defendant apologized for what he had done. R.R. denied putting
her arm around the defendant or resting her head on his shoulder, as the
defendant, in his own testimony at trial, said she had done.
Over a defense objection, R.R. also described a similar incident
that occurred in August 1993. On that occasion, R.R. had gone to the church
to help her mother do some cleaning. The defendant was there, and he invited
R.R. to play basketball with him in the gym. After playing a while, the
defendant led R.R. to the stage, where he kissed her and placed his hands
under her clothing and felt her breasts. R.R. reported this incident to Rev.
Payne about a week later but did not tell anyone else about it at the time.
After the incidents in April 1994, however, R.R. informed her parents about
the earlier occurrence.
J.P. provided testimony corroborating R.R.'s account of their
preparations for the church event that night. According to J.P., after R.R.
and the defendant had returned from a search for the video cassette recorder,
R.R. suggested that the two girls go to the restroom. There, R.R.
straightened her bra and tucked in her shirt. R.R. seemed nervous and began
to cry. R.R. then told J.P. that the defendant had kissed her and "tried to
go up her shirt."
The defendant also testified at trial, admitting to one instance of
physical contact with R.R. The defendant said that he, R.R., and J.P. first
set up a table in the lobby of the building. Afterwards, they were searching
for a video cassette recorder, and at one point the defendant told the two
girls that he would look downstairs for it. The defendant testified that as
he was going to the lower level of the building, R.R. appeared behind him and
said that she, too, was going to look for the video recorder. According to
the defendant, as they were walking together down a hallway in the basement,
R.R. put her arm around the defendant's waist and rested her head on his
shoulder. The defendant testified that, when they reached the end of the
hallway, he kissed R.R. and placed his hand on her breasts, over her
clothing. The defendant stated that the incident lasted about 10 seconds, and
he explained that he stopped what he was doing because it was not proper.
According to the defendant, neither he nor R.R. said anything during this
time. The defendant denied having any other physical contact with R.R. on
April 16, 1994, and he also denied the August 1993 incident described by her.
At the defendant's request, the trial judge instructed the jury on
battery as an included offense of the two charges of aggravated criminal
sexual abuse. The jury found the defendant guilty of both counts of
aggravated criminal sexual abuse, as well as of battery. The trial judge
later vacated the battery conviction because it was included in the principal
charges. On the two counts of aggravated criminal sexual abuse, the trial
judge sentenced the defendant to 36 months' probation, with a nine-month term
of periodic imprisonment, and ordered the defendant to pay a total of $1,500
in fines and in restitution; the restitutionary portion of the order provided
reimbursement to the complainant and her family for counseling costs.
The appellate court affirmed the defendant's convictions and
sentence. 279 Ill. App. 3d 127. The court rejected, among other contentions,
the defendant's "novel argument" that the entire prosecution should have been
dismissed because the State's evidence was tainted by a clergyman's improper
disclosure of confidential information received from the defendant. 279 Ill.
App. 3d at 132. We allowed the defendant's petition for leave to appeal. 155
Ill. 2d R. 315(a).
The only question raised on appeal by the defendant concerns the
trial judge's refusal to dismiss the present case because, in the defendant's
view, it was tainted by a clergyman's improper disclosure of conversations
between the clergyman and the defendant. This issue was raised prior to
trial, when the defendant asked the trial judge to suppress all evidence
derived from conversations between the defendant and Rev. John Golisch, and
reported by Rev. Golisch to the Department of Children and Family Services
(DCFS). Rev. Golisch was a pastor at another Lutheran church and a
psychologist, and Rev. Payne had referred the defendant to him for
counseling. After speaking with the defendant, Rev. Golisch was not sure
whether he was required to file a report with DCFS pursuant to section 4 of
the Abused and Neglected Child Reporting Act (325 ILCS 5/4 (West 1994)). Rev.
Golisch explained at the pretrial hearing that he called DCFS for advice and
was told that as a clergyman he was not required to submit a report but that
as a psychologist he was. The statute requires psychologists, but not members
of the clergy, to report instances of abuse. Rev. Golisch subsequently
submitted to DCFS a report that identified R.R. as a victim of abuse but did
not name the offender. Also at the pretrial hearing, the parties stipulated
that DCFS relayed Rev. Golisch's report to the Lake County sheriff's office,
and that the sheriff's office then brought the matter to the State's
Attorney's attention.
The trial judge agreed with the defendant that Rev. Golisch could
not be compelled to testify to his conversations with the defendant and that
Rev. Golisch's report could not be introduced into evidence. The trial judge
refused the defendant's request, however, that he suppress all the other
evidence obtained in the wake of the report. Separately, the trial judge
determined that conversations between the defendant and Rev. Payne and Deacon
Todd Martin were also protected by the clergymen privilege and that those
witnesses therefore could not be compelled to testify about what the
defendant had said in confidence to them.
The defendant contends that his conversations with Rev. Golisch
were privileged and that section 4 of the Abused and Neglected Child
Reporting Act did not require the clergyman to submit a report to DCFS. The
defendant argues further that the Lake County authorities would not have
learned about the present offenses had it not been for the allegedly improper
disclosure made by Rev. Golisch, and the defendant believes that all the
information traceable to the disclosure must therefore be excluded. In
essence, the defendant seeks to have the entire prosecution quashed because
it is the "fruit of the poisonous tree," having been derived, in the
defendant's view, solely from Rev. Golisch's report. Accordingly, the
defendant asks that his convictions be reversed outright, without a remand
for retrial. In response, the State contends that the defendant's
conversations with Rev. Golisch were not privileged, that Rev. Golisch was
required to report the instances of abuse to DCFS, and that the defendant
waived any privilege he might have possessed. Finally, the State argues that
suppression of all the evidence is not an appropriate remedy in this case. We
agree with the State that suppression is not required here, and we do not
address the State's alternative arguments.
Just as the defendant seeks application of the exclusionary rule to
what he characterizes as the fruit of a poisonous tree, so, too, do we
believe that exceptions to the poisonous tree doctrine could be invoked if
the exclusionary rule were to apply. Assuming, without deciding, that
suppression might be necessary in appropriate cases involving violations of
evidentiary privileges (see Walstad v. State, 818 P.2d 695, 699 & n.6 (Alaska
App. 1991)), we do not believe that so drastic a remedy would be warranted
here. It should be noted that information regarding the defendant's
involvement in the present offenses was not secret, even if it is assumed
both that the defendant's conversations with Rev. Golisch were privileged and
that Rev. Golisch was not required to file a report with DCFS. The
complaining witness' own testimony implicated the defendant in these
offenses, and the defendant, through an admission made to the victim and her
family, had himself acknowledged responsibility for what he had done. In Wong
Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963),
the Supreme Court determined that the exclusionary rule is not applicable
when the prosecution acquires the evidence in question from a source
independent of the alleged illegality. R.R. and her family provided the State
with an independent basis for the prosecution. We also note that the report
made by Rev. Golisch to DCFS did not identify the defendant by name,
referring to him only as a helper to the church youth group to which R.R.
belonged. Apparently, it was not until further investigation that the State
learned of the defendant's identity.
The defendant maintains, however, that the present case would not
have come to the attention of the authorities in Lake County had it not been
for Rev. Golisch's report to DCFS, and the defendant therefore insists that
the entire prosecution be quashed. As support for this argument, the
defendant emphasizes that both Rev. Payne and the complaining witness' family
believed, at least initially, that the matter could be resolved entirely
within the church, and without the intervention of the civil authorities.
In Nix v. Williams, 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984), the Supreme Court recognized the "inevitable discovery"
exception to the rule requiring the exclusion of evidence obtained as a
result of a violation of a defendant's constitutional rights. The court in
Nix held that evidence arguably tainted by a prior illegality may be
introduced if the prosecution is able to show that "the evidence in question
would inevitably have been discovered without reference to the police error
or misconduct." Nix, 467 U.S. at 448, 81 L. Ed. 2d at 390, 104 S. Ct. at
2511. The rationale for the "inevitable discovery" exception is that, while
"the prosecution is not to be put in a better position than it would have
been in if no illegality had transpired," the prosecution should not be put
"in a worse position simply because of some earlier police error or
misconduct." (Emphasis in original.) Nix, 467 U.S. at 443, 81 L. Ed. 2d at
387, 104 S. Ct. at 2508.
Although the issue was not phrased in these precise terms at the
pretrial hearing on the defendant's motion to suppress, we nonetheless
believe that the record belies the defendant's contention that the
complaining witness and her parents would not have pursued this matter
outside the church. At the pretrial hearing, the complaining witness' father,
who was a deacon in the church, acknowledged that he, as well as the others
involved in this case, sought initially to resolve this problem internally,
without the involvement of civil authorities. The complaining witness' father
also said, however, that in his own mind he kept open the possibility that
criminal charges could be brought. R.R.'s father explained further that he
met with Rev. Harold Krueger and Rev. Payne, the pastor and assistant pastor
of the church, on April 19, several days after the incidents charged here.
R.R.'s father told the two clergymen that he was very concerned about the
matter, that he did not believe that the defendant should be associated with
the youth group, and that the defendant, who was a church trustee, should
relinquish his set of keys to the church.
R.R.'s father testified further that he next discussed the matter
with Rev. Krueger and Rev. Payne several weeks later; also attending that
meeting were the complaining witness' mother and the parents of the J.P., who
testified at trial. R.R.'s father was angry that more had not been done about
the situation, and he continued to insist that the defendant should surrender
his keys to the building and adopt a lower profile in church activities.
The victim impact statement submitted by the complaining witness'
parents, and introduced into evidence as an attachment to the presentence
report, also shows the family's growing sense of displeasure with their
church's response to the accusations against the defendant. In a joint
statement, the complaining witness' mother and father said that although they
had initially believed that the matter could be resolved within the confines
of their church, they later became dissatisfied with what the parents
believed were insufficient measures taken by the church leaders in response
to the defendant's misconduct. The statement explained, "First, it was the
defense attorney's position that this incident should have never gotten to
court; that it should have been handled in the church. It was our INITIAL
intent that this matter be handled by the church, but in our opinion, it was
not handled, it was ignored!" (Emphasis in original.) The parents expressed
their surprise at what they perceived to be the church's reluctance to make
any response to the charges, and noted that the defendant was allowed to
participate in the church youth group even after R.R. had reported the August
1993 incident to Rev. Payne. The parents' victim impact statement continued,
"About the time we realized that we would be leaving the church, Pastor Payne
notified us that DCFS would be contacting us. At this point, we decided to
cooperate fully with the Lake County Sheriff's Department and DCFS. We have
no regrets about what has happened. We never had to make the decision to call
the police, but we never ruled it out either." The family eventually decided
to leave this church and to join another one in a different town.
The complaining witness, in her own victim impact statement, also
expressed the view that the church had not handled the situation properly.
R.R. explained that the family initially believed that the matter could be
resolved within the church but later welcomed the intervention of the civil
authorities. In her own statement, which she read at the sentencing hearing,
R.R. said, "At first we weren't happy that officials were getting involved.
Now we are happy they came to help us." The testimony and victim impact
statements submitted by R.R. and her parents demonstrate to us that the
information the defendant seeks to suppress would have come to light even
without the involvement of DCFS.
In sum, we do not agree with the defendant that the exclusionary
rule requires suppression of all the evidence in this case. By requesting
that the entire prosecution be dismissed, the defendant is seeking a remedy
that is much more extensive in scope than the evil he complains of. In the
circumstances presented here, the trial judge granted the defendant the full
measure of relief that was necessary to vindicate the privilege the defendant
asserts. Following a pretrial hearing, the judge barred the introduction of
the report made by Rev. Golisch to DCFS, as well as testimony by the
clergymen to whom the defendant had spoken about the matter--Rev. Golisch,
Rev. Payne, and Deacon Martin. By excluding this evidence, the trial judge
provided the defendant with an appropriate remedy for the alleged breach of
the privilege. See People v. Knippenberg, 66 Ill. 2d 276 (1977).
The special concurrence presupposes that we have determined that
the exclusionary rule is available in these circumstances, but in this case
we have only assumed its application. Because the defendant raises no further
challenge to the proceedings below, we therefore affirm his convictions and
sentence. For the reasons stated, the judgment of the appellate court is
affirmed.
Judgment affirmed.
CHIEF JUSTICE FREEMAN, specially concurring:
Defendant in this case has framed the issue on appeal as one
requiring an analysis which is ordinarily reserved for those cases
challenging the admissibility of evidence as being the "fruit of the
poisonous tree." The majority has inclined its ear and, correspondingly,
engages in an analysis to determine whether, regardless of Rev. Golisch's
violation of the clergy testimonial privilege, the challenged evidence would
have been inevitably discovered and, therefore, properly admissible. Slip op.
at 5. I agree with the majority's ultimate conclusion that the trial court
provided defendant with the appropriate remedy for an alleged breach of the
clergy privilege. Slip op. at 8. I disagree, however, with the majority's
decision to apply the "fruit of the poisonous tree doctrine" and its
correlative inevitable discovery exception in disposing of this case. I
therefore write separately to address this point.
The "fruit of the poisonous tree" doctrine was born out of fourth
amendment concerns over improper police conduct in the gathering of evidence.
See Nix v. Williams, 467 U.S. 431, 442, 81 L. Ed. 2d 377, 386, 104 S. Ct. 2501, 2508 (1984). Generally, evidence obtained through the exploitation of
illegal police conduct must be excluded from evidence at trial. See Note, The
Inevitable Discovery Exception To The Constitutional Exclusionary Rules, 74
Colum. L. Rev. 88 (1974). This exclusionary rule deprives the prosecution of
evidence tainted by official wrongdoing and thereby discourages future
improprieties. See United States v. Jones, 72 F.3d 1324, 1330 (7th Cir.
1995).
An exception to the exclusionary rule is the "inevitable discovery
doctrine." People v. Edwards, 144 Ill. 2d 108, 143 (1991); Nix v. Williams,
467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984). The exception serves
to block the setting aside of convictions that would have been obtained
without police misconduct. Nix, 467 U.S. at 443 n.4, 81 L. Ed. 2d at 387 n.4,
104 S. Ct. at 2509 n.4. If the prosecution can establish by a preponderance
of the evidence that the information inevitably would have been discovered by
lawful means, then the evidence should be received. Nix, 467 U.S. at 444, 81 L. Ed. 2d at 387-88, 104 S. Ct. at 2509.
The majority, without supporting authority, extends the reach of
the fruit of the poisonous tree doctrine to now cover more than police
misconduct cases, but also violations of the clergy privilege by clergymen.
Application of the doctrine in these cases is simply inappropriate. See
People v. Ward, 199 A.D.2d 573, 604 N.Y.S.2d 320 (1993) (fruit of poisonous
tree doctrine not applied to suppress evidence flowing from privileged
communication between clergy and penitent); see also Walstad v. State, 818 P.2d 695, 699 n.6 (Alaska App. 1991) (noting that there seems to be
considerable doubt as to the extent to which the fruits of the poisonous tree
doctrine should apply in cases involving violations of evidentiary
privileges). The availability of the doctrine in an evidentiary privilege
case, such as this one, could have undesirable consequences. Specifically, in
the event that the inevitable discovery exception does not operate to purge
the taint of evidence obtained as a result of a violation of the clergyman's
privilege, the availability of the exclusionary rule will operate to exclude
probative evidence from admission at trial. Moreover, application of the rule
in other than illegal police conduct cases is wholly inconsistent with the
purpose of the exception--deterring police misconduct.
Even assuming that application of the fruit of the poisonous tree
doctrine is proper in evidentiary privilege cases, I disagree that the
inevitable discovery exception would operate to "purge the taint" of the
challenged evidence here. The majority believes otherwise, finding that
because R.R.'s parents had not ruled out the possibility of pursuing criminal
charges, evidence concerning the criminal sexual abuse would have been
inevitably discovered regardless of Rev. Golisch's report to DCFS. See slip
op. at 6-7. This analysis is plagued with infirmities. First, because the
State has not engaged in any illegal conduct in acquiring Rev. Golisch's
statements, it bears no burden of proof on the issue of inevitable discovery.
That, of course, leaves the court to inappropriately make this factual
determination. See Jones, 72 F.3d at 1334 (stating that typically a
preponderance of the evidence burden of proof for purposes of inevitable
discovery requires testimony rather than mere argument).
Second, courts will generally find that evidence would have been
inevitably discovered where such evidence would have been, inter alia,
discovered through an independent line of investigation untainted by the
illegal conduct and the independent investigation was already in progress at
the time the evidence was unconstitutionally obtained. People v. Durgan, 281
Ill. App. 3d 863, 867 (1996), citing People v. Perez, 258 Ill. App. 3d 133,
138 (1994); see also Nix, 467 U.S. at 459, 81 L. Ed. 2d at 397, 104 S. Ct. at
2517 (Brennan, J., dissenting, joined by Marshall, J.). In this case, there
was no independent police investigation in progress. The investigation did
not begin until after Rev. Golisch made his report to DCFS.
Third, the finding of inevitable discovery requires proof by a
preponderance of the evidence that the challenged evidence would have been
discovered despite the illegal conduct. It is important that courts be
extremely careful not to apply the " `inevitable discovery' rule upon the
basis of nothing more than a hunch or speculation as to what otherwise might
have occurred." See 1 W. LaFave, Criminal Procedure sec. 9.3, at 741 (1984).
Speculation and assumption do not satisfy the dictates of Nix. See Jones, 72 F.3d 1324 (holding that for inevitable discovery exception to apply,
government must establish by preponderance of evidence not only that there
would have been probable cause for a lawful search, but that the search in
fact would have occurred).
As the majority itself notes, R.R.'s parents had originally
intended for this matter to be "handled in the church." Slip op. at 7.
Although the parents had thoughts of filing a complaint with the police,
there is no evidence that the parents would have, in fact, contacted the
police. Further, it is insufficient for purposes of inevitable discovery that
the police might or could have obtained R.R.'s parents' statement. Clearly,
to conclude that R.R.'s parents would have made a police report is
speculative. Thus, the majority's reliance on the above facts to support
inevitable discovery falls far short of the preponderance of the evidence
burden of proof mandated by the Court in Nix.
There is one final factor which points up the inappropriateness of
the use of the inevitable discovery exception in this case. As I have stated,
the inevitable discovery exception flows out of fourth amendment concerns for
overreaching by police. In the typical case, the focus of the inquiry is on
the future intended investigatory conduct of the violator--the police.
For its finding of inevitable discovery, the majority here focuses
its inquiry, not on the future intended conduct of the person having
allegedly violated the privilege, Rev. Golisch, but instead, on the witnesses
to the offense. Consistent with the inevitable discovery analysis, the focus
of the inquiry here should necessarily be on the intended future conduct of
Rev. Golisch in his investigation of the offense. Because Rev. Golisch was,
of course, not engaged in an investigation, consideration of his future
conduct would leave the inevitable discovery inquiry yet unanswered.
The exclusionary rule, out of which was created the inevitable
discovery exception, is the constitutional response to illegally seized
evidence. The rule serves the legitimate purpose of deterring police
misconduct, while its exceptions operate to defeat the rule's absolute bar to
the admissibility of illegally seized evidence. The clergy testimonial
privilege, which is statutorily created, also protects legitimate competing
interests. However, privileges should be allowed only to the extent necessary
to achieve their desired purposes. See J. Hilliard, The Public's Right to
Evidence--Sometimes: The Clergy Testimonial Privilege, 83 Ill. B.J. 182, 182-
83 (1995). To apply fourth amendment principles to a statutorily created
privilege inappropriately elevates the privilege to constitutional
dimensions. See Walstad, 818 P.2d at 699 n.6 (stating that if government was
party to improper breach and a constitutional privilege was involved the
legal fruits doctrine will apply). Incidentally, it is generally accepted
that the clergy privilege is not required by the first amendment. See 83 Ill.
B.J. at 183. The clergy privilege, not being of constitutional dimension,
merits for its violation no constitutional remedy.
In my view, the appellate court's analysis of the issue presented
in this appeal is the proper one. Rather than suggest that fourth amendment
principles are even appropriate in cases involving evidentiary privileges, I
would simply have affirmed the appellate court.
JUSTICE BILANDIC joins in this special concurrence.
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