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STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT

COUNTY OF WINNEBAGO

THE PEOPLE OF THE

STATE OF ILLINOIS,

Plaintiff,

v. NO. 2014—CF—922

RICHARD W. WANKE,
STATUS ON MOTIONS
Defendant. IN LIMINE
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13 REPORT OF PROCEEDINGS at the Hearing

14 of the above—entitled cause before the Honorable

15 Rosemary Collins, Judge of said Court, on the 14th

16 day of September, A.D., 2016.

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 APPEARANCES:

MS. MARILYN HITE ROSS,

Chief of Criminal Bureau,
MR. F. JAMES BRUN,
Assistant Deputy State’s Attorney and
MS. PAMELA WELLS,
Assistant State’s Attorney,

on behalf of the People.

MR. NICHOLAS ZIMMERMAN,

Assistant Public Defender,

on behalf of the Defendant.

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 THE COURT: I will be right back. I left

something on my desk.

(Brief pause)

THE COURT: Here you go. Miss Ross, I have

the disk to give back to you. I was able to listen

to it. So...

MS. HITE ROSS: Thank you, Your Honor.

Acknowledge receipt.

THE COURT: All right. We’re here on

10 People v. Richard Wanke, 2014—CF—922. Present are

ll Mr. Wanke, his attorney Mr. Zimmerman, the State is

12 also present. If yOu would state your names for the

13 record.

14 MS. HITE ROSS: Marilyn Hite Ross for the

15 People.

16 MR. BRUN: James Brun for the People.

17 MR. ZIMMERMAN: Judge, Nick Zimmerman on

18 behalf of Mr. Wanke who is present in custody.

19 THE COURT: Thank you. And I knew that the

20 other two counsels weren't able to be here today. So

21 we're just going to proceed.

22 So I did have a chance to review the disk that

23 was tendered to the court on the last call. Let me

24 get my notes out. Pardon me.

 Okay. I don’t recall there being a motion in

limine specifically regarding the introduction of the

disk that was given to the court. Rather, the motion

was not —— on evidence that was relayed on the disk.

Is that correct?

MS. HITE ROSS: Yes. That would be our

number 25 motion in limine, Judge.

THE COURT: Okay. I've got too small a

desk and too many papers up here. Okay. So the...

10 Okay. We did briefly argue that last week. But I

11 wanted to make sure I gave the defense more time to

12 argue it if I didn’t give you enough time last week

13 with respect to People’s 25th motion. I did —— I do

14 have my notes from that. But I don’t recall if

15 there's anything else you wanted to say regarding

16 that, Mr. Zimmerman. Or if that was Mr. Simmons’ to

17 argue.

18 MR. ZIMMERMAN: Judge, I would be happy to

19 argue it at this point.

2O Really the objection to admitting this audio

21 recording is twofold. Number one is relevance.

22 There is no relevance to this. And again this is an

23 issue that is contained within the defendant's 6th

24 motion in limine.
 Mostly -- Specifically, the State... I believe

it’s their contention that this somehow shows or

proves some sort of motive on behalf of Mr. Wanke,

the fact that he had disagreements with Mr. Clark

regarding the admission of certain evidence at his

upcoming trial. And you can tell in the tape that

it's —— that the trial has not occurred as of yet

because they are talking about the admission of

certain evidence at the trial and what pictures come

10 in and things of that sort. It’s not —— There’s no

11 threats contained on that tape. There’s nothing

12 particularly heated. There’s just... I would

13 categorize them as normal conversations between an

14 attorney and his client regarding court stuff.

15 There’s no relevance to that in this case. It

16 does not go to prove anything. And that's the

17 subject of defendant’s 6th motion in limine as well

18 as the potential expert witness testimony that we may

19 or may not be asking to introduce at some point in

2O time.

21 The —— the second objection to this is that it's

22 hearsay. Other than possibly the statements of Mr.

23 Wanke in the tape, everything else is hearsay. The

24 statements of Mr. Clark are hearsay. The statements

 of the third party who was there are hearsay. So we

would ask to exclude it on those grounds.

Additionally, there’s no indication in the tape

that Mr. Wanke was consenting to that recording. In

fact, a close listen of the tape it appears as though

he doesn’t know that it is being recorded. And the

reason is because it —— it becomes evident that the

third party who is there is the one doing the

recording. Because when the tape... Towards the end

10 of the tape it’s discussed between Mr. Wanke and Mr.

ll Clark that they are going to be discussing things

12 that are more privileged in respect to certain

l3 testimony that they anticipate at upcoming trial. At

14 that point the third person who —— is either asked to

15 leave or suggests leaving on her own, and at that

16 point presumably Mr. Wanke and Mr. Clark continue to

17 have conversations. But the tape ends as the third

18 person leaves the room or shortly thereafter. So

19 there’s no indication that this doesn’t violate the

2O eavesdropping statute as it existed at the time of

21 the recording and as it exists now frankly.

22 So for at least those three reasons we'd ask

23 that the court exclude that from admission in

24 evidence and deny the State’s 24th motion in limine.

 THE COURT: Okay. Thank you, Counsel.

MR. ZIMMERMAN: Twenty-fifth motion in

limine.

THE COURT: That’s okay. I know which one

your talkin' about.

State.

MS. HITE ROSS: First of all, it is not

hearsay because the contents of the audio recording

other than the defendant's statements are offered to

10 show what we believe a motive is for the killing of

ll Mr. Clark.

12 And as a proffer to the court, this tape is

13 recovered from a search warrant that was executed at

14 the defendant's home that was found in his property.

15 This audio recording, as the court listened to, has

16 additional calls on there outside of the initial

l7 recording and in Mr. Clark’s office where Mr. Clark

18 is telling the defendant that because this third

19 party is there he is waiving attorney—client

20 privilege, and the defendant insists on keeping that

21 person there. So to infer that the defendant didn’t

22 know it was being recorded... You know, that’s their

23 argument. Our position is he absolutely did. It was

24 in his possession. And that’s how we got the

 recording by executing a legitimate search warrant

that was signed by a judge.

In addition, it is relevant. We have charged

that one of the reasons the defendant killed Mr.

Clark was to prevent him from participating in a

criminal prosecution, that being the sentencing

hearing of the defendant after he was convicted at a

jury trial.

And certainly to say that the contention prior

10 to the trial, during the trial, in post conviction of

11 the defendant at trial is not relevant, has no merit

12 to it, it certainly is relevant. It goes to the

13 heart of some of the charges that we filed against

14 the defendant. And as the court is well aware, you

15 know, evidence is relevant if it tends to prove that

16 a fact is more true than not which is concurrent with

17 the IPI circumstantial evidence instruction. So it

18 certainly is relevant. It is not hearsay.

19 The statements made by the defendant are

20 statements, from the State’s position, that are made

21 against his interest. And I disagree with counsel

22 that it’s not a contentious conversation. The court

23 listened to it. And again that’s up to the trier of

24 fact to decide. But certainly we believe that it was

 heated discussion. And we don’t believe that the

defendant was unaware that it was being recorded. He

brought this person Miss Chavez to a meeting with him

and his attorney where he was very prepared to

discuss his case. So he certainly knew that that

person could potentially be a witness, and we believe

that he recorded Mr. Clark when —— with Mr. Clark not

being aware that this recording was ever made.

So we ask that the court do allow this evidence

10 in because it is relevant. It’s not hearsay. There

11 are statements against interest made by the

12 defendant, and it goes to his motive, his intent to

l3 commit the crime as charged.

14 THE COURT: Thank you, Counsel.

15 MR. ZIMMERMAN: A couple things, Judge.

16 The tape is recovered from a search of a house

17 that is owned by Miss Chavez. And the —— as you

18 listen to the recordings, the recordings are often

19 directed towards Miss Chavez. Can you tell Richard

2O Wanke X, Y or Z or can you have Richard Wanke call

21 me. They are —— There’s no indication... Just as

22 there's no indication Mr. Clark knew that the thing

23 was being recorded, there’s no indication that Mr.

24 Wanke knew the thing was being recorded. There’s no

 statement we’re about to go in a meeting with our

lawyer, we’re recording this for further use or

anything of that sort. So there's no evidence that

the State has that Mr. Wanke knew that this was being

recorded in any fashion. There’s no...

It was recovered from a property that —- where

there is, basically speaking, in some instances

commingled property, items of Miss Chavez's and items

of Mr. Wanke's. So we would ask that the court take

10 that into consideration in excluding this tape.

11 THE COURT: Okay. All right. First of

12 all, I have to say that counsel argued that it was

13 evident the third party did the taping. It wasn't at

14 all evident to me as to who was doing the taping.

15 You know, it wasn’t clear from the tape itself who

16 was doing the taping. I assume you are not stating

17 as an officer of the court that Miss Chavez was doing

18 the taping.

19 MR. ZIMMERMAN: Judge, I think when you

20 listen to the recording when they talk about the

21 third party, things that they want to say outside the

22 presence of the third party, the third party leaves

23 and that’s when the taping ends. You can assume that

24 the third party is doing the taping.

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 THE COURT: Or that somebody turned it

off. I mean I can't assume that. It may be

somebody’s assumption. But I can’t assume that from

the tape. It is not at all clear who is doing the

taping from the tape.

Are you saying Miss Chavez did the taping?

MR. ZIMMERMAN: I don't know who did the

taping.

THE COURT: Well, I don’t either. And you

10 can't tell from that tape. That’s what I am saying.

11 It is just as much —— I could speculate just as much

12 some other person was doing the taping as your

13 suggestion. It is just not clear who it was. But if

14 you are saying Miss Chavez was doing the taping then

15 I am interested in that because Miss Chavez has been

16 present at all of our proceedings. If she’s taping

17 surreptitiously conversations, I don't intend to let

18 her back into the courtroom without a search of her

19 belongings to make sure she’s not taping in this

2O courtroom. Because it is not allowable for somebody

21 to be taping. So if that’s what you are saying, Miss

22 Chavez will either be barred from the courtroom or

23 not allowed in here until a search is made to make

24 sure she's not taping anything in this courtroom.

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 Because the court will enforce its rule with nobody

taping with strong intent.

MR. ZIMMERMAN: I don't represent Miss

Chavez. I don't speak for her. I speak for Mr.

Wanke.

THE COURT: So you don’t know who was

taping it either.

MR. ZIMMERMAN: It is our contention that

Mr. Wanke didn’t do the taping.

10 THE COURT: But you are not saying that as

ll an officer of the court.

12 MR. ZIMMERMAN: I have attorney—client

13 privilege.

14 THE COURT: Right.

15 MR. ZIMMERMAN: I mean it is our contention

l6 he didn’t do the taping. I don’t think Mr. Clark did

17 the taping.

18 THE COURT: But nobody knows.

19 MR. ZIMMERMAN: Right.

2O THE COURT: So —— so it's clear that

21 somebody did the taping. I don’t know who it was

22 either from that. And it is clear that counsel Mr.

23 Clark went over about how the attorney—client

24 privilege would be destroyed in the presence of a

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 third person. And that was clear on the tape.

The court has listened to it. I've listened to

the arguments of counsel. I do think it’s relevant

with respect to the State's stated reason which was

motive. I don't think it is barred by hearsay. The

only statements that are being used to prove the

truth of the matter asserted really are the

defendant's statements.

And with respect to the consent to the

10 recording, I am not sure who recorded it so it is

ll hard for me to know who consented and who didn’t. It

12 is obvious that some parts of the conversation

l3 weren't recorded. If the recording wasn’t in the

14 possession of Mr. Clark then certain things could

15 have been added or detracted or deleted.

16 And so -~ So the court is... Without more

17 evidence regarding the tape itself, the court is

18 going to grant People’s 25th motion in limine to

19 allow the audio recording of the conversation between

20 Mr. Clark, the defendant and Diane Chavez. Of

21 course, the State is not freed from its burden of

22 doing the foundational requirements to introduce any

23 tape into evidence. But —— but the court will not

24 find that attorney—client privilege applies to this.

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 And I will find that it is relevant.

Now with respect to the defendant’s motion in

limine, we talked about this briefly. Well, I was

going to say last week but I think it was this week,

just earlier this week Monday. The defendant has

filed a motion to continue. I did ask if the parties

could see if October 3rd would work for them and

their witnesses. So I am not sure if you have a

response to that.

10 Defense, you are still proceeding on your motion

11 to continue?

12 MR. ZIMMERMAN: Yes, Your Honor.

l3 THE COURT: Your witnesses are available

14 then on that date?

15 MR. ZIMMERMAN: Yes, Your Honor.

16 THE COURT: State, what’s your position on

17 it?

18 MR. BRUN: Your Honor, we have reached out

19 to all of our witnesses, and the week of October 3rd

2O would be available.

21 THE COURT: In light of that then I will

22 grant the defense motion to continue. We will

23 continue the trial to October 3rd. That’s when we

24 will be proceeding. I expect that to be the final

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 continuance on this case. I expect the trial to last

about two weeks if that helps your calendaring at

all. But we will start then.

I am going to set up a schedule too as long as

you are here so that we will continue... I know that

two attorneys couldn’t be here today. So I can set

this next week. I know the attorneys will be back.

And so we can set it over to next week to finish up

the motions in limine and to do the jury

10 questionnaire. I would like the jury questionnaire

ll issues to be resolved next week if possible so

12 that —— so that we can get them printed and to the

13 jury commissioner.

14 So —— so next week when do you have a block of

15 time? I'm pretty open at this time. So I'd like to

16 block out as much time as we need for it and maybe

17 even additional time that we don’t think we’ll need.

18 MS. HITE ROSS: Judge...

19 MR. BRUN: Your Honor ——

20 MS. HITE ROSS: ...we had next week cleared.

21 THE COURT: Uh—huh.

22 MS. HITE ROSS: So I am assuming whatever

23 date works for counsel will work for the State.

24 THE COURT: Okay. So how about Wednesday,

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 September 21st at 9:00? That way even if I am in

trial on another case I should be done with it by

then.

MR. ZIMMERMAN: That would be fine, Judge.

The probation department set up a PSI interview for a

client of mine at 2:00 which I intended to move if I

was going to be in trial.

THE COURT: That’s okay. We can work

around that. So from nine to noon we will do Mr.

10 Wanke’s case. And then I’d also like to set it for

11 September 22nd, say, from 2:30 on if that's

12 available.

13 MS. HITE ROSS: That’s available.

14 MR. BRUN: It is, Your Honor.

15 MS. HITE ROSS: What was the time, Your

l6 Honor?

17 THE COURT: 2:30 to 5. I don't want us to

18 be —- to be in a time bind. I want to try to get

19 everything done that week so that you are clear to

20 work on it the week of September 26th without having

21 to come to court. But I could also set a date the

22 week of September 26th as a backup just so you don’t

23 fill in your calendars where we can do additional

24 issues if some come up.

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 MS. HITE ROSS: I think that’s a good idea,

Your Honor.

THE COURT: I think that’s a good idea

too. So how abOut September 27th at 10:00?

MR. ZIMMERMAN: That would be fine, Your

Honor.

THE COURT: And then how about September

29th at 1:30? Now, mind you, I intend to cancel

these dates if we have everything done and we don’t

10 need ’em. So you won’t have to be here -— have to be

11 here for all of those. I know how your calendars

12 fill up. I don’t want to run out of time before we

13 do the things that we need to do.

14 MS. HITE ROSS: That works for the State,

15 Your Honor. Thank you.

16 MR. ZIMMERMAN: Judge, I did double book.

17 But that’s fine. I would have had to move those if

18 we were in trial. So...

19 THE COURT: Okay, 1:30 on September 29th.

20 MR. ZIMMERMAN: Judge, just —— October

21 10th is a court holiday, is that correct?

22 THE COURT: Yes. Yes. October 10th is a

23 court holiday. So we will not be in session on the

24 10th. And I am also not available probably the

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 afternoon of the 11th. This is difficult for me

because I have booked up that whole week with cases.

But we'll deal with it.

MS. HITE ROSS: That’s fine, Judge.

THE COURT: And, you know, it could not

take as long as I expect. So... You never know. I'm

also covering an order of protection call for another

judge that week. We'll see... It's difficult for the

court’s calendar to move it. But I want everybody to

10 have the time they need to prepare.

ll MR. ZIMMERMAN: Thank you, Judge.

12 MS. HITE ROSS: Judge, with respect to the

13 People's motion in limine #20, if I could address

14 it.

15 THE COURT: Sure.

l6 MS. HITE ROSS: I indicated to the court

17 I would file an amended motion. I did that this

18 afternoon. I do have attachments that I didn’t file

19 because I believe they should be sealed after the

20 court views them.

21 THE COURT: Okay.

22 MS. HITE ROSS: They are the photographs

23 that the court requested...

24 THE COURT: Okay.

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 MS. HITE ROSS: ...that appeared in the

Register Star and that the witnesses were shown. So

I’d like to tender those.

THE COURT: I will show it added as an

exhibit. And I will return it to you after the

argument on that.

You have seen these photographs?

MR. ZIMMERMAN: Yes.

MS. HITE ROSS: I have given him another

10 copy. But they were tendered in discovery.

11 THE COURT: Okay.

12 MR. ZIMMERMAN: I don’t know if —— We

13 certainly accept the State’s oral statement that

14 these were the same pictures in the Register Star.

15 I do have a copy of the ——

l6 THE COURT: Yeah, I did want to see that

17 too.

18 MS. HITE ROSS: They are —— Judge, they

19 are actually copies of inventory photos from

20 evidence, and that’s where we took them and that’s

21 how they are documented by the officers. We copied

22 original photographs, and that’s what we’re tendering

23 to the court.

24 Judge, in addition we still had outstanding

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 People's motion in limine #16, paragraph 10(e).

THE COURT: Uh-huh.

MS. HITE ROSS: And what I am asking to do

in light of the defense filing their motion in limine

S and 6, I am asking that the court strike paragraph

10(e) and I am going to re—file that separately...

THE COURT : Okay.

MS. HITE ROSS: ...in more detail. I know

the court had reserved ruling. The court had

10 questions about that paragraph.

ll THE COURT: Let me get my notes on that so

12 I can write that down so I don’t forget. All right.

13 So I have my notes on 10(e). All right. The court

14 will allow the State to strike 10(e). And you are

15 going to re—file it as a separate motion?

16 MS. HITE ROSS: Yes, Your Honor.

17 THE COURT: So 10(e) will be stricken off

18 of the State's .. I think it was the 16th, is that

19 correct?

20 MS. HITE ROSS: Yes. The People's 16th,

21 Judge. And it will basically correlate with the

22 defendant's 5th and 6th motion regarding

23 attorney-client privilege. I just wanted to have an

24 opportunity to provide the court with extensive case

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 law...

THE COURT: Okay.

MS. HITE ROSS: ...regarding our position on

that.

THE COURT: I expect we will argue these

the first setting we have next week so that we can

try to get as many of these rulings done in advance.

That will be helpful to both of you I'm sure to

prepare.

10 MS. HITE ROSS: That will be fine.

ll THE COURT: To all of you to prepare. So

12 we’ll do that if we can. If you can't get it before

13 then I know counsel's going to need to look at it

14 too. So...

15 (Attorney Wells enters)

16 THE COURT: All right. That's all we’re

17 going to do for today in light of the absence of your

18 co—counsel and other counsels.

19 Miss Wells did just join us. So thank you for

2O that, Miss Wells.

21 THE DEFENDANT: Excuse me, Your Honor.

22 THE COURT: Yes, sir.

23 THE DEFENDANT: One housekeeping matter.

24 And it pertains to what Miss Wells tendered to the

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 court on Monday. She put into the record that my TRO

to the US District Court here in Rockford was denied

by Judge Kapala. But there is... If you can refer to

the end of it whenever you have time, that there is a

notation at the bottom. And I'll just read ’ya... I

don’t have a copy. It says the certificate ——

certifies that the plaintiff has pending litigation

before this court and an amended pleading is due.

The court requests that the officers of —— at

10 Winnebago County Jail provide plaintiff with

11 reasonable access to his legal documents and to legal

12 resources available at the jail for the purposes of

13 preparing for the pleading.

14 I am going to write something up for our next

15 date. And that's basically what I am asking this

16 court to do; that everything that's —— the jail has

17 held that they confiscated be available to me so I

18 can prepare for what we’ve just done, which is

19 schedule the trial, so I can meet with counsel and

20 prepare for this case. I’d like my attorney to adopt

21 it. But I am going to present something similar to

22 that just asking the court the request from the

23 Winnebago County Jail that all of that stuff that

24 they've confiscated be made available and resources

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 be made available so that I can interact and prepare

for this court case just like the federal judge

Kapala has done pertaining to my confiscated legal

materials in the matter that I am handling pro se.

THE COURT: I will note your comments on

the record.

THE DEFENDANT: Thank you.

THE COURT: All right. Court's reviewed

the exhibits that have been tendered, both the copy

10 of the Rockford Register Star article. I haven't

ll read the article. I looked at the photo. And I

l2 didn’t think the parties were concerned about the

l3 contents of the article that much except from the

14 headlines...

15 MR. ZIMMERMAN: Correct.

16 THE COURT: ...which I’ve read. If you want

17 me to read the whole article I will.

18 MR. ZIMMERMAN: It is probably small.

19 THE COURT: Not too small. I can read it.

20 I’ve also reviewed the photos that have been tendered

21 by the State, and they will be re-tendered to the

22 State because I've seen them now.

23 Just give me a second. I’ll read this and

24 then...
5‘

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 (Brief pause)

THE COURT: All right. The court's read

all the content in the exhibit tendered by the

defense regarding the photo of Mr. Wanke and then.the

article regarding this. I do keep these so that we

can put them in the record if need be at the

appropriate time.

Mr. Zimmerman, I will charge you to keep ahold

of this and make sure it's available or make a copy

10 of it to be put in the court file and as well the

ll State to make a copy to be put in the court file, and

12 we’ll seal them.

13 MS. HITE ROSS: This is the copy for the

14 court.

15 THE COURT: That’s the Copy?

16 MS. HITE ROSS: Yes.

17 THE COURT: This is a copy as well?

18 MR. ZIMMERMAN: Yes.

19 THE COURT: I will order these sealed.

20 They will be titled Exhibits on Motions in Limine.

21 Is that an acceptable title?

22 MS. HITE ROSS: Yes, Your Honor.

23 THE COURT: All right. The court —— the

24 clerk will seal these then.

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 THE CLERK: Yes.

(Off the record discussion between the

court and clerk)

THE COURT: The court is then cancelling

at the request of the defense the jury trial setting

on the 19th, and it is set for the 21st at 9 a.m.

then. Was it 9 a.m.?

THE CLERK: Nine a.m.

MS. HITE ROSS: The 2lst at 9 a.m., Your

10 Honor.

ll MS. WELLS: Judge, I understand we are

l2 addressing the jury questionnaire next week.

13 THE COURT: Yes.

14 MS. WELLS: I did make on the defense copy

15 some notes as to kind of our thoughts on questions.

16 I provided that to the defense because I don’t have

17 theirs in Word. Did you want a copy of that?

18 THE COURT: No. I would like you to

19 continue discussions with them...

20 MS. WELLS: Okay.

21 THE COURT: .. and then provide a copy to

22 the court with the agreed upon questions.

23 MS. WELLS: Okay.

24 THE COURT: Each one of you can give me a

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 copy of questions you may want that are not agreed

upon so I can make a determination.

MS. WELLS: Thank you for your direction on

that.

THE COURT: Okay. All right.

Okay. All right. Thank you all.

MR. BRUN: Thank you.

THE COURT: Time tolled.

(Defendant remanded)

10 (Which were all the

ll proceedings of record in

12 the above—captioned matter

13 on this date.)

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 STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT

COUNTY OF WINNEBAGO

C-E—R-T-I-FdI-C-A—T-E

I, Kathi Anderson, CSR, an Official

Court Reporter, Seventeenth Judicial Circuit,

Counties of Boone and Winnebago, State of Illinois,

10 do hereby certify that I reported in stenotypy the

ll above—entitled cause, and that I thereafter

l2 transcribed into typewriting this Report of

l3 Proceedings which I hereby certify is a true and

14 correct transcript of said proceedings had before

15 the Honorable Rosemary Collins, Judge of this Court,

16 on the 14th day of September A.D., 2016.

17 IN WITNESS WHEREOF I have hereunto set

18 my hand this let day of August, A.D., 2017.

19

20

21

22 i Anderson, CSR
License No. 084—002107
23

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