STATE OF ILLINOIS

IN THE CIRCUIT COURT FOR THE 17TH JUDICIAL CIRCUIT

WINNEBAGO COUNTY

THE PEOPLE OF THE STATE )

3
OF ILLINOIS,

vs. ) NO. 2014~CF—922

)
RICHARD WANKE, ) STATUS
)
Defendant. ) COPY

REPORT OF PROCEEDINGS at the hearing in the

10 above-entitled matter before the Honorable Rosemary

ll Collins, Judge of said Court, heard on Tuesday, the 31st

12 of October, 2016.

l3 APPEARANCES:

l4 MS. MARILYN HITE ROSS,

Winnebago County State's Attorney,
l5 Chief of the Criminal Bureau,
appeared on behalf of the People;
l6
MR. JAMES BRUN,
l7 Winnebago County Deputy State's Attorney,
Criminal Bureau,
l8 appeared on behalf of the People;

19 MS. PAMELA WELLS,

Winnebago County Assistant Deputy State's Attorney,
2O appeared on behalf of the People;

21 MR. NICK ZIMMERMAN,

Winnebago County First Public Defender,
22 appeared on behalf of the Defendant;

23 MR. ROBERT SIMMONS,

Winnebago County Assistant Public Defender,
24 appeared on behalf of the Defendant.

Brittyn Higdon, CSR, RPR

Official Court Reporter
CSR License #054—004RIO
 THE COURT: This is People vs. Richard Wanke,

2014—CF—922. We're here this afternoon for the Court's

decisions on motions in limine and I'm prepared to

proceed with most of them at this time.

I would note parenthetically that I believe it

might have been one of the counsels for defense, I think

it was Mr. Simmons, but it might have been somebody else

had talked about the difficulty with these motions

because they are pretty broad and they are not as

10 specific as sometimes motions have been in the past.

11 So I've done my best to deal with the general

12 evidentiary principles and may not deal with each

13 individual statement that was made in the course of the

14 filings of those motions. Obviously I believe we'll have

15 further discussions about perhaps some of these. So

16 we'll go through them and see where we are.

17 So I'm going to be starting with People's 27 ——

18 amended 27. People's —— let me make sure I got all my

19 notes out here. So People's amended 27th motion in

2O limine is a motion to admit statement in evidence of

21 prior representation. That's the title. It's quite an

22 extensive motion with respect to statements made

23 primarily in open court and also includes some documents.

24 So I've considered the arguments. Defense has

Erittyn I-‘zigdon, CSR, RPR

Official Court Reporter
CSR License #084-004810
 filed briefs with respect to this too. I've considered

the arguments. And while I may not agree with the exact

characterization of the evidentiary rules regarding the

admission of the testimony that was advanced by the State

with some of the statements, I will find at this time

that the communications between counsel and the defendant

that were disclosed in open court will be allowed at the

trial.

I do not find that these statements are hearsay

10 as they relate to the, to the State's motive of

11 establishing the alleged contentious nature, the

12 relationship between the defendant and his attorney which

13 goes to show the state of mind of the defendant which

14 goes then to show the defendant's possible motive for

15 the, or for the commission of this crime, which is what

16 the State is asking to admit these for.

17 The motive of Mr. Clark, although it's, it's

18 been referred to in other motions too, is not relevant.

19 And so this doesn't go to Mr. Clark's state of mind, it

2O goes to the defendant's state of mind.

21 The communications are not being brought in to

22 Show that, in fact, Mr. Clark either did or didn't do a

23 specific thing. So they're not being used for the truth

24 of the matter asserted. They're used to show the state

Brittyn Higdon, CSR, RPR

Official Court Reporter
CSR License #084—004810
 of mind of the defendant and his possible motive.

The communications between counsel and the

defendant that were not disclosed in open court will not

be allowed. The Court does have concerns regarding the

nature of the attorney/client relationship. So there are

some communications that were not disclosed in open

court. Those will not be allowed. Letters that were not

disclosed in open court will not be allowed.

Letters that were disclosed in open court can be

10 introduced because I do find that the items referred to

11 in open court were referred to under a waiver of the

12 attorney/client privilege with respect to the allegations

13 regarding the ineffective assistance of counsel that

14 Mr. Wanke, in fact, has made.

15 So my ruling is not as specific as I don't go

16 through each and every comment that the State has

17 indicated they wish to bring in, but I think that it's

18 clear in that you understand the evidentiary basis that

19 the Court is going to allow some documents in and some

20 testimony in regarding statements made in open court.

21 And that should guide you with respect to the individual

22 issues.

23 Motion in limine 28. This is a motion in limine

24 regarding allowing testimony of the victim's action to

Brittyn Higdon, CSR, RPR

Official Court Reporter
CSR License #084—004810
 defend himself. This kind of ties into a statement I

made earlier. This goes to Mr. Clark's state of mind,

perhaps. It doesn't go to Mr. Wanke's state of mind.

It's very speculative at most to connect these actions

with Mr. Wanke, at least from what I've heard.

So the Court is going to deny the request that

the People made in their 28th motion in limine to allow

testimony of the victim's actions to defend himself. I

don‘t find that they are relevant. I think they're too

IO speculative. They don't go to any actions by Mr. Wanke.

11 They go to actions by Mr. Clark. And I don't think

12 there's been enough to tie them into a specific threat by

13 Mr. Wanke.

14 The Court is, as you know, I previously allowed

15 the testimony of the gunshot and that I think is enough

16 to establish perhaps what is happening, but I'm not going

17 to allow this testimony. So the Court will not allow

18 that testimony or the witness's testimony to bring in his

19 steps to protect himself.

2O With respect to motion in limine number 29.

21 Number 29 is requesting basically that I allow statements

22 in that Mr. Clark made to Mr. Henbest regarding the

23 relationship that Mr. Clark had with the defendant and

24 particular issues regarding what I believe was purported

Brittyn Higdon, CSR, RPR

Official Court Reporter

CSR License #084—004810
 to me that Mr. Wanke was asking Mr. Clark to do some

things he thought were unethical and were the source of

concern on his part.

While, again, Mr. Clark's state of mind is not

really the issue in this case, but particularly since it

appears, and correct me if I'm wrong, but it appears

that, in fact, the testimony was brought in that was

referred to by this. There were, there was testimony

brought in that was the subject of Mr. Clark's concern.

10 And so the alibi witness, I believe, was allowed

11 to testify and did testify. These witnesses were brought

12 in. So I don't see any relevance to the issue at hand as

13 to Mr. Clark's conversation with Mr. Henbest. I don't

14 think that —— I think that would be privileged

15 communication. I don't think there's been a waiver of

16 that privilege and I don't think those statements are

17 relevant to the issue at this case. So People‘s 29th

18 motion in limine will be heard and denied.

19 People's 30th motion in limine. This is a

20 motion in limine to admit documents, official court

21 documents. The Court will allow as a general rule

22 official court documents to be introduced in the court

23 trial. In this specific instance, it's the motion to

24 withdraw and the motion for new trial. The Court will

Brittyn Higdon, CSR, RPR

Official Court Reporter
CSR License #084—004810
 allow those documents to be introduced.

Motion in limine 31. Motion in limine 31, as I

read it, is —— the issue is premature. It basically is

calling for the Court to answer a hypothetical. What if

Amanda is unavailable? And so the Court will not issue a

hypothetical or an answer to a hypothetical question.

It may come up that this issue does come up at

trial, but it is not ripe for the Court's review and the

Court is not going to enter a ruling and answer

10 hypotheticals that have been presented to it.

11 People's 32 has already been ruled on and the

12 Court granted People's 32.

13 People's 33, statements of appellate counsel.

14 Statements of appellate counsel the Court finds are not

15 relevant to the issues in this case. These are

16 statements made by the appellate counsel, not by the

17 defendant and not by Mr. Clark. So I do not find they're

18 relevant and will not be allowed to be used to establish

19 the contentious nature of the relationship.

2O People's 33, the motion to admit statements of

21 the defendant which he did in pro se filings. I have not

22 yet completed my total review of defendant's —— or

23 People's 34. So I am not yet prepared to rule on

24 People's 34.

Brittyn Higdon, CSR, RPR

Official Court Reporter
CSR License #084—004810
 So that's where we are.

MS. HITE ROSS: Judge, we still have outstanding

People's motion in limine number 20 is in my notes is

what I show. I don‘t know if the Court has them.

THE COURT: Let me flip back to that and see what

I've got. Let me just pull the motion. I have notes in

here so I think I'm ready to give a ruling on it, but let

me just double check it.

My notes indicate that People's 20 is regarding

10 the testimony of the witnesses with respect to

11 identification of the defendant from a photograph; is

12 that correct?

13 MS. HITE ROSS: Yes, Judge.

14 THE COURT: I don't actually have People's 20 in

15 front of me and I don't know what happened to that packet

16 of motions in limine. So do you have —— actually I'll

17 ask the clerk to do it.

18 Can you pull out People's 20 real quick so I can

19 make sure that my notes are complete on that?

20 And State was going —— I have a note here State

21 was going to correct their filing.

22 MS. HITE ROSS: Yes. We filed an amended 20, your

23 Honor, and that was the one the Court was going to rule

24 on. I believe I sent out ——

Brittyn Higdon, CSR, RPR

Official Court Reporter
CSR License #084—004810
 THE COURT: Let me just double check that and make

sure I also have that.

MR. BRUN: I have it filed on September 14th of this

year, your Honor.

THE COURT: That will help the clerk pull it.

THE CLERK: The computer's a little slow.

THE COURT: I'll give this right back to you as soon

as she pulls it out.

MS. HITE ROSS: Judge, just for the Court's

10 refreshing of recollection, I believe that both the State

ll and counsel had some addendums to that. Counsel had

12 filed a response, I believe there were some news

13 articles ——

14 THE COURT: I do recall that. Let me just make

15 sure. I'm not going to issue a final ruling on that.

16 Let me just make sure I go through all my notes and make

17 sure I'm correct.

18 I have notes written down here. I think I am, I

19 think I'm ready to do that, but, frankly, I didn't review

2O it prior to coming into court today. So I want to make

21 sure that I have completed my analysis and that my notes

22 are in line with what, in fact, my decision was and not

23 just notes.

24 MR. ZIMMERMAN: Judge, we had also filed a second

Brittyn Higdon, CSR, RPR

Official Court Reporter
CSR License #084—004810
 10

motion in limine which was the, essentially the opposite

of the State's 20th.

THE COURT: And that was your second motions in

limine number 2.

MR. ZIMMERMAN: Correct.

THE COURT: All right. So I will take a look at

those and just double check where I am with those because

I believe I have my decision written out, but I am —— I

do want to double check that since I didn't review it

10 prior to coming in here today. So I think that I had it

11 in my mind that I had decided it, but I just want to make

12 sure.

13 So you are owed a decision on 34 and People's 20

14 and Defendant's 2.

15 MS. HITE ROSS: Amended 20, your Honor.

16 THE COURT: Amended 20.

17 MS. HITE ROSS: Yes.

18 THE COURT: Okay. All right. Unfortunately that's

19 all the time I have available for the rest of this week.

20 So we are set to start on Monday.

21 MS. WELLS: I think we have the 31st set, your

22 Honor.

23 THE COURT: Today's the 3lst.

24 MS. WELLS: Oh.

Britiyn Higdon, CSR, RPR

Official Court Reporter
CSR License #084—004810
 11

MS. HITE ROSS: Ms. Wells has a different calendar.

THE COURT: I totally understand that.

MS. WELLS: Oh, yeah.

THE COURT: But, yes, today is the 3lst. So that's

it. So we'll see you in court on Monday, November 7th.

I'll give you the rulings on those things before that.

I'll have the jury questionnaires ready and I'm going to

give that to my bailiff and he'll give it to my secretary

to make copies of it. If there's any problems with it,

10 he can contact you and get a copy of that, but we should

11 be fine on that account.

12 The defendant should be brought over in his

13 street clothes on Monday. We're going to be doing the

14 jury selection in here. I'm not sure exactly where yet

15 in light of where we're going to put the remaining

16 jurors. We still have some logistics to work out, but

17 that's where I believe we will be at this time. That

18 could change. Okay.

19 MS. WELLS: Judge, the only other issue we have is

20 we filed a supplemental motion for discovery. When the

21 case was continued last time there was mention of an

22 expert related to computers. We never received any

23 discovery on that and perhaps there isn't, but given that

24 we're one week from trial, we wanted to actually address

Brittyn Higdon, CSR, RPR

Official Court Reporter
CSR License #084—004810
 12

that and make sure that there wasn't anything we're

missing.
to

THE COURT: Defense?

L0

MR. ZIMMERMAN: Judge, we haven't disclosed an

expert in that area. So we understand our obligations

under the rule. I think what the State's asking for ——

if they're asking for any experts we intend to use, then

we're not, we don't have any additional information.

THE COURT: Okay. So you're not calling any expert

10 regarding that issue?

ll MR. ZIMMERMAN: No.

12 THE COURT: Okay. All right.

13 MR. BRUN: I believe that may be the Court's copy.

14 Some writing is on the back, Judge.

15 THE COURT: It is.

16 MR. BRUN: I think you thought it was the amended 20

17 that I handed you. I can print a new one. I don't need

18 it. That's fine, your Honor.

19 THE COURT: Alrighty. Anything else then? All

20 right. See you all on November 7th.

21 MS. WELLS: Thank you, Judge.

22 MR. BRUN: Thank you, your Honor.

23 MR. ZIMMERMAN: Thank you, Judge.

24 (End of proceedings.)

Brittyn Higdon, CSR, RPR

Official Court Reporter
CSR License #084—004810
 13

STATE OF ILLINOIS

THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT

COUNTY OF WINNEBAGO

C E R T I F I C A T E

I, Brittyn G. Higdon, CSR #084—004810,

an Official Court Reporter for the Circuit Court of

Winnebago County, 17th Judicial Circuit of Illinois,

10 reported in machine shorthand the proceedings had on the

11 hearing in the above—entitled cause and transcribed the

12 same by Computer Aided Transcription, which I hereby

13 certify to be a true and accurate transcript of the

14 proceedings.

15

16 IN WITNESS HEREOF I have hereunto set

17 my hand seal this 28th day of June, 2017.

18

19

20 2%
g/OfficiaL/Court Reporter
21 17th Judicial Circuit
State of Illinois
22

23

24

Brittyn Higdon, CSR, RPR

Official Court Reporter
CSR License #084—004810