Gauger v. Hendle

ILLINOIS OFFICIAL REPORTS

Appellate Court

Gauger v. Hendle, 2011 IL App (2d) 100316

Appellate Court GARY A. GAUGER, Plaintiff-Appellant, v. BEVERLY HENDLE,

Caption EUGENE LOWERY, and CHRISTOPHER PANDRE in Their

Individual and Official Capacities; THE OFFICE OF THE McHENRY

COUNTY SHERIFF, and THE COUNTY OF McHENRY, Defendants-

Appellees.

District & No. Second District

Docket No. 2–10–0316

Filed June 28, 2011

Held In an action against defendant county and other defendants seeking

(Note: This syllabus damages for plaintiff’s arrest, conviction and incarceration for the

constitutes no part of the murders of his parents, the trial court did not err in excluding the

opinion of the court but appellate court’s Rule 23 order on plaintiff’s direct appeal from his

has been prepared by the conviction and evidence showing how the murders were actually

Reporter of Decisions for committed and how the “real killers” were discovered, since the Rule

the convenience of the 23 order likely would have confused the jury and the excluded evidence

reader.) did not support plaintiff’s theory that defendants fabricated his

confession.

Decision Under Appeal from the Circuit Court of McHenry County, No. 03–LA–292;

Review the Hon. Maureen P. McIntyre, Judge, presiding.

Judgment Affirmed.

Counsel on Matthew C. Crowl and Thomas J. Henehan, both of Schiff Hardin LLP,

Appeal of Chicago, for appellant.

James G. Sotos, John J. Timbo, and Jeffrey N. Given, all of James G.

Sotos & Associates, Ltd., of Itasca, for appellees.

Panel PRESIDING JUSTICE JORGENSEN delivered the judgment of the

court, with opinion.

Justices McLaren and Burke concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Gary A. Gauger, sued defendants, Beverly Hendle, Eugene Lowery, Christopher

Pandre, the office of the McHenry County sheriff, and the County of McHenry1 to recover

damages for his arrest, conviction, and incarceration for the 1993 murders of his parents,

Morris and Ruth Gauger. Following a trial on counts alleging malicious prosecution,

conspiracy to maliciously prosecute, and indemnification, a jury rendered a verdict and

answered special interrogatories in defendants’ favor. Plaintiff appeals, arguing that the trial

court erred in excluding: (1) this court’s order on plaintiff’s direct appeal of his conviction;

and (2) evidence showing how the “actual murders” were committed and how the “real

killers” were discovered. We affirm.

¶2 I. BACKGROUND

¶3 A. Proceedings Prior to the Current Lawsuit

¶4 In October 1993, a jury convicted plaintiff of the April 1993 murders of his parents. On

January 11, 1994, plaintiff was sentenced to death. On September 22, 1994, his sentence was

reduced to two sentences of life imprisonment without parole.

¶5 In 1995, while plaintiff’s direct appeal was pending, federal authorities were

investigating the Outlaw Motorcycle Club, a gang. On about August 31, 1995, Outlaw

member Mark Quinn, who was being held in the Du Page County jail, contacted Sandra

DeValkenaere, a federal Alcohol, Tobacco, and Firearms agent. On September 2, 1995,

Quinn told DeValkenaere that Outlaw members Randall Miller and James “Preacher”

Schneider killed plaintiff’s parents during a robbery. Information concerning the federal

investigation was first provided to the McHenry County State’s Attorney’s office in late

1

On the first trial day, plaintiff, pursuant to an oral stipulation, dismissed the county as a

defendant.

-2-

1995.

¶6 On March 8, 1996, this court reversed plaintiff’s conviction and remanded the cause for

a new trial. People v. Gauger, No. 2–94–1199 (1996) (unpublished order under Supreme

Court Rule 23). We held that, when the police originally took plaintiff in for questioning,

they placed him in custody but lacked probable cause to do so; there was no probable cause

until plaintiff made incriminating statements at the police station. Id. at 27-28. We also held

that plaintiff’s incriminating statements should have been suppressed because they

constituted the fruits of the illegal arrest. Id. at 29. Finally, we determined that the evidence

was sufficient to prove plaintiff guilty beyond a reasonable doubt and, accordingly, we

remanded the cause for a new trial. Id. at 29-30.

¶7 In August 1996, plaintiff was released on home monitoring, pending the Illinois Supreme

Court’s decision on the State’s petition for leave to appeal our decision. On October 4, 1996,

following the supreme court’s denial of the State’s petition for leave to appeal (People v.

Gauger, 168 Ill. 2d 606 (1996) (table)), the McHenry County State’s Attorney dismissed by

nolle prosequi the charges against plaintiff.2

¶8 On June 10, 1997, Schneider and Miller were arrested and Schneider confessed to the

Gauger murders. Schneider later pleaded guilty to the murders, and Miller was convicted of

federal racketeering charges that included the Gauger murders as predicate acts. In June

1997, after his arrest, Miller shared a cell block in the Waukesha County, Wisconsin, jail

with Christopher Ignasiak. Over the next few weeks, Ignasiak kept notes of his conversations

with Miller. Jail officials discovered the notes during a random search of Ignasiak’s cell. The

notes reflected that Miller had said that he was paid $3,000 “by the farmers’ son” to “take

out” the Gaugers; that Schneider had helped him; and that, if he had the opportunity, Miller

would “slice” Schneider’s throat as he did the Gaugers’ for having told on him. Ignasiak

submitted to questioning by federal investigators.

¶9 On October 1, 1999, plaintiff filed suit in federal court, raising both federal and state law

claims against defendants for his alleged wrongful arrest and malicious prosecution. On

September 24, 2002, the district court granted summary judgment in defendants’ favor on

the federal claims and declined supplemental jurisdiction over the state claims. Gauger v.

Hendle, No. 99 C 50322, 2002 WL 31130087 (N.D. Ill. Sept. 24, 2002). On December 19,

2002, the Governor pardoned plaintiff based on plaintiff’s innocence.

¶ 10 On October 30, 2003, the Seventh Circuit affirmed the dismissal of plaintiff’s federal

claims, except his false arrest claim. Gauger v. Hendle, 349 F.3d 354, 359 (7th Cir. 2003),

overruled on other grounds, Wallace v. City of Chicago, 440 F.3d 421 (7th Cir. 2006), aff’d,

Wallace v. Kato, 549 U.S. 384 (2007). Subsequently, the district court dismissed with

prejudice the federal false arrest claim.

¶ 11 B. Current Lawsuit

¶ 12 On September 23, 2003, plaintiff filed a five-count complaint in state court against

2

Plaintiff was incarcerated for 41 months.

-3-

defendants alleging malicious prosecution, false imprisonment, intentional infliction of

emotional distress, and conspiracy and seeking damages under the Local Governmental and

Governmental Employees Tort Immunity Act (745 ILCS 10/1–101 et seq.(West 2002)). After

summary judgment was granted in defendants’ favor on several counts, a trial proceeded on

the counts alleging malicious prosecution, conspiracy to maliciously prosecute, and

indemnification.

¶ 13 Trial commenced on August 12, 2009.

¶ 14 1. Plaintiff

¶ 15 Plaintiff, age 57, testified that he works as an organic vegetable farmer on his parents’

farm, which is in Richmond, off of Route 173. In 1993, plaintiff, who was then age 41, lived

on the farm with his parents, Morris (age 72) and Ruth (69). In addition to farming,

plaintiff’s parents also ran (on the farm) a motorcycle repair shop and sold rugs. Plaintiff and

his parents lived in the farmhouse. The rugs were sold from a trailer on the property. The

farmhouse was located on a 214-acre parcel that Morris and Ruth owned; the house was

about 400 to 500 feet from the end of the driveway adjacent to Route 173.

¶ 16 Plaintiff testified that he last saw his parents alive on Wednesday evening, April 7, 1993.

His father went to bed at 8 p.m. because he had the flu. Plaintiff went to bed at 8:30 p.m. The

next morning, Thursday, April 8, 1993, plaintiff awoke at 9 a.m. His parents were not in the

house. Plaintiff ate in the kitchen. It was not a “big deal” to him that no one was in the house.

Plaintiff was not certain where his parents were. He testified that his mother could have been

away on errands; his father could have been in the shop or gone to Sugar Grove (Morris and

Ruth had planned on going to Sugar Grove to purchase a tractor that their friend “Windy”

(a man) had told them about, and Windy might have picked them up). Plaintiff looked for

a note. He testified that he was in a hurry. He walked behind the house to the vegetable

greenhouse.

¶ 17 The rain had stopped, and plaintiff moved pepper plants out of the greenhouse. After he

moved the plants, he returned to the greenhouse to start a fire to warm up the shop. Plaintiff

smoked part of a marijuana joint. He had a motorcycle project he was working on. The bike’s

owner stopped by with another motorcycle for plaintiff to repair. After the owner dropped

it off, he left. Plaintiff started working on the bike. Later, at about noon, Art Clokey, who

was renting the barn, asked plaintiff to move a pig for him. Afterwards, plaintiff continued

working until 6:30 p.m.

¶ 18 While plaintiff walked across the field and to the house, he noticed a padlock on the rug

trailer. This made him think that his parents had gone away, because the rug trailer was never

locked unless his parents had gone away for the day. Plaintiff went into the house and ate.

He looked for a note, but did not find one. Plaintiff then walked around the back of the house

and checked a garage door. It was locked, which indicated to plaintiff that his parents were

gone; they left it unlocked when they were home. Plaintiff returned to the shop to work on

the bike. When he finished, he turned on the radio and finished smoking his joint.

¶ 19 At 10 p.m., plaintiff returned to the house and saw a light on in the garage. He looked

inside through a window and saw no one. He did not look through another window with

-4-

shrubbery in front of it; had he done so, he conceded, he would have seen his father’s body.

Plaintiff returned to the house. He became worried. Plaintiff testified that his parents would

usually return by 10 or 10:30 p.m. He could think of no one to call. (His parents did not have

cellphones.) Plaintiff waited by the phone until midnight and went to bed.

¶ 20 On Friday, April 9, 1993, plaintiff woke up about 9 a.m. and looked around the house.

His parents were not in the house. A man drove up and asked when the shop was going to

open; plaintiff told him that he did not know where his parents were and that the shop would

not be opening that day. The visitor left. Plaintiff put up the gate and chain, picked up the

newspapers, and returned to the house. At about 11 a.m., Morris’s friend, Ed Zender, and his

girlfriend, Traci Foskus, walked up the driveway. Plaintiff went outside and explained to

them that his parents were missing. Zender asked for a British motorcycle nut, and they went

to the garage to look for it. They entered the garage through a southwest door (plaintiff lifted

the overhead door, which was unlocked) and proceeded toward the northwest corner to a box

where the British nuts and bolts were kept. When they did not find what Zender needed,

Zender suggested looking in the British parts section of one of the parts rooms, which was

in the southeast section of the garage. They walked east into the first parts room. Plaintiff

turned south to proceed down the first aisle, but his foot hit something on the floor and he

backtracked and chose instead the middle aisle. Plaintiff and the visitors walked south into

the second parts room. There, plaintiff discovered his father’s body, face down, in a pool of

blood.

¶ 21 Plaintiff called 911. The operator asked plaintiff how long he thought his father had been

dead; plaintiff testified: “And at first I said about 24 hours. Then I realized I didn’t know. So

I said, well, he’s been missing for about 24 hours.” Plaintiff then searched for his mother. He

checked her car. Plaintiff saw a key lying in the grass five feet from a blue Volkswagen that

was outside the garage. Plaintiff thought this was unusual, and he later told the police about

it.

¶ 22 After the police arrived, they asked to search the house. Plaintiff consented to the search

and answered questions. He then attempted to call his brother, who lived in Whitewater,

Wisconsin; plaintiff did not reach his brother. Plaintiff contacted his brother’s neighbors and

told them that his father was dead. He also called Francis, Ruth’s best friend, and told her the

news. While looking for Francis’s number, plaintiff located Windy’s number. He called

Windy to tell him of Morris’s death, and Windy gave a “bizarre” response, denying that he

and Ruth were having an affair.

¶ 23 Plaintiff led police through their search of the house. At this point, he understood that the

police suspected foul play. Detective Beverly Hendle was at the scene by 12:55 p.m. She

questioned plaintiff. Plaintiff then spoke to the coroner. Plaintiff waited in the kitchen “in

case anybody wanted to ask [him] any more questions” and made coffee. Plaintiff looked

outside and realized that it was a sunny day. He was concerned that his plants, which were

in closed cold frames, would burn. Plaintiff testified that he asked one of the officers if he

could go open the cold frames. The officer told him he could do so. Plaintiff was gone for

15 to 20 minutes. He spoke to neighbors during this time and took a small “hit” of marijuana

that one of his friends offered him. Plaintiff returned to the kitchen.

-5-

¶ 24 An officer asked plaintiff for a key to the rug trailer lock. When no key could be found,

plaintiff suggested that the officers break the lock. Plaintiff walked outside. He saw the

officer enter the trailer and then rush out; subsequently, two or three officers rushed inside.

The officers discovered Ruth’s body under a pile of rugs. One officer came out, pointed at

plaintiff, and stated “don’t let him go.” Two officers then came up to plaintiff and escorted

him to a squad car. Before he entered the car, the officers frisked plaintiff’s pockets. He

could not exit the squad car because there were no handles on the inside of the doors and

there was a cage between the back and front seats. It was about 1 p.m.

¶ 25 Plaintiff waited in the squad car for 20 to 30 minutes. An officer came and opened one

of the rear squad-car doors and the driver’s-side door. The officer sat on the driver’s side.

Plaintiff asked if they had found his mother and if she was dead, and the officer replied in

the affirmative. Plaintiff stated that he was afraid of that. He also said, “how could anybody

do something like this for money?” Plaintiff testified that this was the only reason he could

conceive of to explain why his parents were killed. Plaintiff did not cry; he testified that he

did not show any emotions while with the officers, because he was in shock. Plaintiff asked

to leave to urinate, and he did so behind a tree with the officer standing nearby. He was then

escorted back to the squad car. After 45 minutes to 1 hour, plaintiff asked again to go urinate,

which he did. He returned to the squad car and stayed for two to three hours.

¶ 26 Hendle approached the squad car and told the officer who waited there with plaintiff that

they would be taking plaintiff to Woodstock. Plaintiff was escorted to another squad car and

was told that he would be transported. Plaintiff asked whether they were “going for ridies,”

a reference to what his brother would say when he took his dogs for a ride. Plaintiff testified

that he would “make comments sometimes when [he was] uncomfortable” and that he

wanted to “lighten the mood,” since he had been waiting for hours. “It was just a short flip

comment” and there was “nothing to it.” Hendle sat in the front passenger’s seat, and

plaintiff was transported to the sheriff’s department. There, he was placed in an interrogation

room. It was about 4 p.m.

¶ 27 The interrogation, which lasted 18 hours, was neither videotaped nor audiotaped, and

none of plaintiff’s statements was reduced to writing. According to plaintiff, the interrogation

room was 12 feet wide and 20 feet long. Hendle led plaintiff into the room. Detective Eugene

Lowery was waiting in the room. Hendle and Lowery read plaintiff his Miranda rights.

Plaintiff then made a “flip comment” (i.e., said “Que?,” Spanish for “What?”) when his

rights were not read to him in Spanish. He then apologized for the comment, realizing that

it was “inappropriate.”3 Plaintiff testified that he makes “flip comments” when he is nervous.

Plaintiff did not request an attorney because he had nothing to do with his parents’ murders

and he wanted to cooperate with the police. The detectives interviewed plaintiff, asking him

questions about the preceding two days. They then went over the events again. Plaintiff

3

Plaintiff testified: “I explained when I had done that, I read in a case in the paper months

before about someone who had a [conviction] overturned because they hadn’t read their rights in

Spanish. It was a feeble attempt of mine at humor. I use irony for humor and it was an ironic twist

I felt. Then I realized, no, this is totally inappropriate.”

-6-

signed a consent-to-search form at 4:20 p.m.

¶ 28 The interrogation continued. By 7:30 p.m. plaintiff was tired and had not eaten. He

testified that he had told the detectives everything he knew. Everyone loved his father, and

plaintiff could think of no one who might have wanted to hurt his parents. Plaintiff wanted

to leave, and the detectives told him that they would not let him go. They continued

questioning him.

¶ 29 Plaintiff testified that he told the detectives that he did not call his brother at 10 p.m. on

Thursday, April 8, because he did not want him to worry. “That’s not the way we did

things[,] *** my parents were very private people. They took care of themselves. So no news

is good news.” Plaintiff also told the detectives that he did not call police on Thursday

evening because it was his understanding that he had to wait 24 hours to report a missing

person. At most, his parents were missing since Thursday morning, and it was not unusual

for them to return home at 10:30 p.m. According to plaintiff, Lowery asked him many

questions about the route he took to look for the British nut instead of walking down the

middle aisle of the parts room; plaintiff explained to Lowery that he went to look for the

British nut in the box containing such pieces; when he did not find one there, he took the

quickest path to the second parts room, i.e., through the first parts room. Plaintiff told the

officers that he thought his father was killed about 7:30 a.m., because, when his body was

discovered, he was wearing boots and a coat he typically wore first thing in the morning.

¶ 30 The questions went into plaintiff’s background, including his alcoholism (he had been

sober over one month prior to the interview), his first marriage and divorce, his children,

living in a commune in Tennessee, et cetera. By 10 p.m., plaintiff had still not eaten and had

drunk 15 cups of coffee. Plaintiff testified that he was tired and asked if he could leave; he

was told that he could not leave. The detectives told plaintiff that they did not believe his

story, and Lowery yelled at him. At this point, plaintiff offered to undergo a polygraph

examination. The detectives agreed, and plaintiff signed a consent for them to administer and

videotape the examination.

¶ 31 While waiting for the polygraph examiner to come to the station, the questioning became

less “intense” or “badgering.” The detectives ordered sandwiches, and plaintiff ate a few

bites and drank water and coffee. Plaintiff inquired whether polygraphs were reliable and told

the detectives that he had read that relaxation or meditation could lower one’s blood pressure

and affect the test results. Plaintiff told Hendle that he could lower his blood pressure and

that he meditates. The polygraph examiner, Kenneth Frankenberry, arrived at midnight.

While Frankenberry was preparing plaintiff for the examination, he asked plaintiff if he was

aware how his parents had been killed. After plaintiff replied in the negative, Frankenberry

told him that their throats had been cut. This was the first time that plaintiff was informed

of this.

¶ 32 While Frankenberry was setting up for the examination, plaintiff spontaneously made

another “flip” comment, about “voices” (i.e., “I said voices”), and then apologized. Plaintiff

was fatigued at this point. He typically went to bed at 10:30 p.m. and almost always before

midnight. The examination lasted about one hour. Plaintiff testified that he answered

-7-

truthfully. 4 When plaintiff was exiting the examination room, Lowery asked him how he

would cut someone’s throat. Plaintiff replied that he would “take a knife and grab their

head.” Plaintiff then just dropped his hands and stopped speaking. They walked back to the

interrogation room. When asked how he knew how to cut someone’s throat, plaintiff

responded that he saw it in a “Rambo” movie. At this point, Lowery and two other officers

were in the interrogation room; they asked only a few questions for about 20 minutes.

Lowery left and then returned and started questioning plaintiff. Detective Christopher Pandre

was introduced to plaintiff. At this point, only Lowery and Pandre were in the room with

plaintiff. Hendle returned after 30 minutes and Pandre left.

¶ 33 Plaintiff testified that the questioning became “bizarre” at this time. Hendle told plaintiff

that the detectives had a stack of evidence against him; plaintiff stated that Hendle was

“crazy,” to which Hendle replied that they did have such evidence. Lowery mentioned that

plaintiff told Frankenberry that he heard voices and plaintiff replied that Lowery was lying.

This “made no sense” to plaintiff. He inquired if he passed the polygraph examination, and

Lowery told him that he did not. According to plaintiff, “It made no sense at all.” The

detectives told plaintiff that they found a bloody knife in his pocket, bloody sheets on his

bed, and bloody fingerprints in his bedroom (none of which was true). Lowery again

questioned plaintiff about the route he took in the garage. Plaintiff asked when he would be

able to view the evidence, and the detectives responded that he could see it on Monday.

Plaintiff asked if they were lying, and they replied in the negative and further stated that they

could not lie.

¶ 34 Plaintiff testified that he was exhausted and asked to lie down. The detectives told him

that he could not do so. Plaintiff asked if he could get help, to which Lowery “explode[d]”

and accused plaintiff of “thinking about saving [his] own ass.” Lowery yelled at plaintiff and

put in front of him two photographs of Morris’s and Ruth’s bodies. Plaintiff pushed them

away. At one point, plaintiff retrieved the photograph of his mother’s body and pointed to

her clothes, noting that they were not the same clothes she wore when plaintiff last saw her.

Also her hair had been pulled back, and Ruth did not wear her hair that way. The

interrogation became “very intense.” The detectives told plaintiff that they did not believe

him and that a 10-year-old “could have done better.”

¶ 35 Next, plaintiff testified, “And I asked Detective Hendle, could it be possible that I did this

in a blackout? And she said yes, yes. She said this often happens in family members where

a person will kill someone in their family and then black it out.” Plaintiff continued:

“I have absolutely no memory of this. They are not letting me go. I don’t know what

else to do. I said well, what if I construct a hypothetical scenario using the details you

4

Frankenberry testified that he could not pass plaintiff, because the records were flat.

Plaintiff showed signs of fatigue; he yawned throughout the examination. Frankenberry concluded

that the results were “[i]nconclusive, inconsistent due to flat polygraph record usually associated

with fatigue.” Frankenberry believed that plaintiff’s answers were “more wrong than right,” an

impression he conveyed to the detectives. The detectives did not tell plaintiff why Frankenberry

could not pass him.

-8-

have given me of the crime to try to jog my memory so I can remember what I did

because they are saying I did it.

And I said that, and an alarm bell did go off in my mind. I mean wait a minute. Is this

really right? But it is like 2:00 in the morning. I want this crime to be solved. I suppose

I should have asked for a lawyer then. But if I killed my parents, I want to know about

it.

They said they can’t lie. I’m not thinking right at all anymore. I’m not. So they agreed

with me. They thought it was a good idea if I go through a hypothetical scenario of how

I must have killed my parents. Now, the only memories I have of my parents were

nothing about murdering my parents. I just had to take details from the past.”

¶ 36 Plaintiff then testified that he told the detectives how he would have killed his parents.

He would have approached his mother in the trailer, walked up behind her, pulled her hair,

cut her throat, and let her fall. When asked if he would have covered her with blankets,

plaintiff responded that he could not recall if he did, but, if he did, he would have done so

because he cared. He testified that he started to cry after he told the detectives how he would

have killed his mother. Plaintiff next told the detectives how he would have killed his father.

He would have approached him from behind while Morris was in the garage, pulled back his

hair, cut his throat, and let him fall. When the detectives asked plaintiff if his father knew he

was there, plaintiff told them that Morris would not have heard him because he was “hard

of hearing” (a family trait that plaintiff has inherited). The detectives asked plaintiff what he

did with the murder weapon, and plaintiff told them that he would have left it there. Plaintiff

testified that, at this point in the interrogation, he was sobbing. Hendle was on his right side

and Lowery was on his left. They told him he did it. “I look at Beverly Hendle. I killed my

mother. And she looks at me and she says you did it, Gary.”

¶ 37 According to plaintiff, Lowery was loud and accusing and Hendle was warm and

sympathetic. “And now [Hendle] says you did it, Gary. And I believe her. I believe her.”

Plaintiff testified that he told the detectives that he had no memory of killing his parents.

“Every time I try to get my composure, they say Gary, we see it in your eyes. You killed

them. You’re telling the truth now.”

¶ 38 This line of questioning continued for 1 to 1 1/2 hours. “And now they have me believing

I had killed my parents.” The questioning then turned to plaintiff’s motive. They did not

identify a motive. Plaintiff asked Lowery, who carried a pistol on his belt, to remove the gun

because plaintiff might grab it and kill himself; Lowery removed the gun. About 2 a.m., on

Saturday, April 10, the detectives told plaintiff that the State’s Attorney was there and would

seek the death penalty. “I didn’t care.”

¶ 39 At about 5 a.m., Pandre entered the room. He carried a bag with jail clothes in it and told

plaintiff that he would be collecting his clothes. Hendle left the room, and plaintiff changed

into the clothes that Pandre had brought into the room. The questioning continued, with

Pandre asking plaintiff what he did the morning his parents were murdered. According to

plaintiff, he was flooded with relief. “I thought oh my gosh, this is all part of the

investigation. They are just trying to solve the murder. I didn’t kill my parents. It was

wonderful.” After plaintiff started recounting the events, one of the detectives stated that they

-9-

wanted to hear how he killed his parents. Plaintiff then again recounted what he maintained

was a hypothetical scenario, but it was not couched in hypothetical terms. However, he

added: “I said I can’t believe I killed my parents. And I’m not ready to sign a confession

because I have no memory of this. I think I did it. I loathe myself. But I have no memory. I

won’t sign a confession because I don’t remember it.”

¶ 40 At 10 a.m., plaintiff requested an attorney. He was escorted to the booking sergeant and

was subsequently placed in a holding cell.

¶ 41 2. Defendant Beverly Hendle

¶ 42 Hendle testified that, when she arrived at the farm on Friday, plaintiff was a person of

interest because he “was the only surviving member on the farm where his parents had been

murdered, and he was our source of information.”

¶ 43 Hendle interviewed plaintiff at 1 p.m. and plaintiff was cooperative. She took a telephone

call at one point. She did not tell plaintiff that he could not leave. Hendle later learned that

plaintiff had gone to the greenhouse and returned. She “thought it was kind of unusual,

because his dad has just been found dead and his mother was still missing and I didn’t know

where he went to.” Addressing plaintiff’s demeanor, Hendle testified that he drank coffee

and “appeared calm.”

¶ 44 Plaintiff was placed in the squad car about 1:30 p.m. Hendle testified that plaintiff was

not under arrest at this time; he was free to leave, although she was unaware if a person could

open the back door of the squad car. Once in the squad car, plaintiff said to Hendle: “Are we

going for ridies?” Hendle testified that she said, “What?” and that plaintiff replied: “ ‘Are

we going to Woodstock?’ ” Hendle stated that plaintiff’s comment was “a little startling.”

Addressing plaintiff’s demeanor, she stated that it appeared to be a normal day for plaintiff;

he appeared very calm.

¶ 45 Hendle further testified that plaintiff left the car a few times to urinate and to walk

around, although she did not write in her report that he walked around. At 3:40 p.m., before

they went to the police station, plaintiff was not under arrest; he was free to leave. They

arrived at the detective division offices at 4:05 p.m. They drove through a sally port with a

garage door that closed behind them. Then, they went to a conference room, which was used

for various purposes, including interviewing witnesses and suspects. At 4:15 p.m., plaintiff

gave the police written permission to search his property.

¶ 46 At 6:15 p.m., the detectives read plaintiff his Miranda rights, to which he initially

replied, “Que?” Hendle testified that she thought plaintiff’s remark was odd. He then stated

that he understood his rights and that he wanted to speak with the detectives without an

attorney. Hendle referred to the questioning as an interview and not an interrogation; in her

view, the questioning became an interrogation after midnight.

¶ 47 Contrary to plaintiff’s testimony, Hendle testified that plaintiff asked to leave only (by

way of requesting an attorney) at 10:22 a.m. the next day. He did not ask to leave around

7:30 or 10 p.m. Friday.

¶ 48 According to Hendle, plaintiff did not appear tired the entire night; he was “pretty

-10-

talkative.” Hendle never asked plaintiff to write out any of his statements or to review and

sign the statement. Hendle denied that Frankenberry told her that he could not pass plaintiff

because the records were flat, which is usually associated with fatigue. According to Hendle,

Frankenberry mentioned fatigue in his written report, which she read weeks later; he did not

make any statements to her to that effect on the evening of the examination. Hendle testified

at plaintiff’s criminal trial that, between 4:15 and 11:30 p.m., plaintiff did not implicate

himself in his parents’ murders.

¶ 49 Hendle denied that she told plaintiff that she had a stack of evidence against him; that

there were bloody clothes in his bedroom; that there was a bloody knife in his pants pocket;

that there were bloody sheets in his bedroom; or that there were bloody fingerprints and that

his body would not lie. She also denied telling plaintiff that the State’s Attorney was in the

hallway or mentioning the death penalty.

¶ 50 When plaintiff’s clothes were collected at 5:40 a.m. on Saturday and he was given “jail

garb” to wear, he was not under arrest. Hendle testified that the jail garb was the only

clothing the detectives had to give plaintiff: “That’s the only clothing we had available to

replace what he had volunteered to give us.” Plaintiff was free to leave.

¶ 51 At 5:40 a.m., Hendle left the room. She was gone for about 2 1/2 hours. While Hendle

was absent from the room, Pandre and Lowery questioned plaintiff and plaintiff allegedly

confessed. At 8:15 a.m., Pandre exited the room and Hendle re-entered; Pandre did not

inform Hendle of plaintiff’s confession. By 10 a.m., plaintiff did not appear fatigued to

Hendle; she testified that he was still very talkative. Hendle testified that plaintiff did not

couch his confession in hypothetical terms. He also did not state that he would not sign a

confession because he had no memory of killing his parents.

¶ 52 Hendle testified that she did not ask plaintiff if he murdered his parents, what he was

going to do with the bodies, or why he stayed on the farm rather than running away. She also

did not ask plaintiff why he did not tell Zender that the motorcycle shop was closed. Plaintiff

initially told the detectives that the overhead garage door was locked. At another point, he

stated that he had not checked it.

¶ 53 According to Hendle, the detectives could not understand why plaintiff did not check the

motorcycle shop and the rug trailer late Thursday night; he stated that he checked only the

barn. Plaintiff’s father typically worked in the shop and his mother typically worked in the

trailer. The detectives did not ask plaintiff why he took Zender and Foskus into the shop.

¶ 54 When Hendle signed the criminal complaints against plaintiff, she knew of no physical

evidence of the crimes. Hendle testified that there were no bloody fingerprints on the farm;

no bloody sheets or clothing; and no bloody knife. Hendle understood that plaintiff had told

other detectives that he left a knife in the motorcycle shop.

¶ 55 Hendle addressed the length of plaintiff’s interrogation. She stated that, in her experience,

she had never had an interview last that long. Plaintiff talked about many subjects, “a lot”

of which were irrelevant to the investigation. Plaintiff discussed his life in Texas, various

jobs he had held, a wheelbarrow his parents had purchased, his ex-wife and three kids, et

cetera.

¶ 56 Hendle testified that she did not lie to plaintiff about the evidence the sheriff’s

-11-

department had concerning the case. She never raised her voice during the interview, but

Lowery raised his voice once or twice. No one ever mentioned a blackout while Hendle was

in the conference room. When plaintiff told the detectives that he looked for his parents

around 10 p.m. on Thursday, he related that he took a flashlight and checked the barn for his

parents’ cars. They were located where they were typically stored. According to Hendle,

plaintiff stated that he looked “all over” for his parents. When she asked him if he looked in

the motorcycle shop, he replied that he did not. When Hendle asked him why, plaintiff did

not answer. Similarly, when she asked him if he looked in the rug trailer, plaintiff replied that

he did not and he did not explain why. Plaintiff also had stated that he smoked marijuana all

day and Hendle testified, “it just seemed odd to me that at his age he didn’t know to call

somebody to ask about his parents, if they never went away without leaving a note or telling

him, and he didn’t look in the places closest to the house where they normally are.” Plaintiff

“was more concerned about his plants than he was looking for his mother.”

¶ 57 Plaintiff told the detectives that, Friday morning he did not call any hospitals, his brother

or sister, his mother’s best friend, or anyone else. Hendle also thought it “odd” that plaintiff

retrieved the newspapers and mail and read them for an hour over coffee that morning.

Plaintiff further told the detectives that he thought his parents must have been shot in a

robbery on their property and that it must have happened between 8 and 9 a.m. on Thursday.

He explained that the cat was wet when he saw it sitting on the window sill, and it had been

raining–a reference to his parents letting the cat out. As to plaintiff’s robbery theory, Hendle

testified that it did not appear that anything was missing or disturbed.

¶ 58 Plaintiff described his relationship with his parents. He stated that he felt that his father

resented him when plaintiff and his twin sister were born because they took more of his

mother’s time. Hendle further testified that the polygraph was her idea, but she was not

certain of this. By 10 or 10:30 p.m., Hendle was “suspicious.” She explained:

“Just the kind of–the totality of the circumstances. He is the only surviving member of

the family left on the farm, and if someone was going to come in and kill his father in the

motorcycle shop just north of the house, the mother in the rug trailer just south of the

house, didn’t appear as anyone came in and disturbed [plaintiff]. The fact that he wasn’t

looking for his mother. He took his coffee cup and was more concerned about his plants.

He was kind of flip about the ridies, the que, and he didn’t call anybody to look for

them, even though it was out of the ordinary for them to go away. Both of their cars were

home. He had access to the places they were found, easily, and he didn’t have

explanations why he didn’t check there.”

¶ 59 Hendle’s testimony concerning the polygraph examination differed in crucial respects

from plaintiff’s testimony. Hendle testified that plaintiff made “bizarre” statements

concerning the test. He agreed to take it and “thought he could beat it, because he meditates

and knows how to lower his blood pressure, and he knows all about the galvanic skin

response, and I think it was at this time he said he was half Betazoid, which I didn’t know

what that was. I didn’t know about galvanic skin response either, and his hands were already

sweaty.”

¶ 60 In Hendle’s view, after the polygraph, the questioning became an interrogation. The

-12-

detectives attempted to keep plaintiff focused, and the questioning became more aggressive

and confrontational. After the detectives (falsely) informed plaintiff that he failed the exam,

plaintiff showed emotion for the first time and stated that he could not believe he did not

pass; he called Frankenberry a liar. Plaintiff also denied raising his hands and saying “voices”

while Frankenberry was setting up.

¶ 61 When asked if plaintiff made a comment about not remembering whether he had killed

his parents, Hendle testified: “Yes. He said if he did it, he couldn’t remember it.” Hendle

asked a hypothetical question concerning how someone would kill his parents, and plaintiff

gestured in response by lifting his hands. She did not record his response as a confession, but

she did not interpret plaintiff’s response as hypothetical.

¶ 62 The detectives asked plaintiff if he would submit his clothes to the crime lab because they

noticed a stain on his pants. He consented, and the detectives retrieved the jail garb (not an

orange jumpsuit worn by a prisoner).

¶ 63 When Hendle returned to the interrogation room at 8:15 a.m., Lowery filled her in on his

and Pandre’s conversation with plaintiff:

“[Lowery] said that [plaintiff] had said he killed his mother first, because she was the

closest, I believe, and that she would–she wouldn’t be alarmed by his presence in the rug

trailer. He had looked out the window and seen her in the rug trailer, and she wouldn’t

be alarmed by his presence, because she knows and trusts him, and that he had come up

behind her and cut her throat, but he laid her down gently, because that would mean he

cared, and I believe there was some discussion about her being covered with rugs or

blankets.

And then he said he had gone out to the motorcycle shop and came up behind his dad

who was walking away from him and cut his throat, and I can’t recall anything further

at this time.”

During Lowery’s recap, plaintiff did not state that what Lowery was recounting was not true

or did not occur. He did not state that he would not sign a statement. Lowery left the room

and returned with breakfast and left again.

¶ 64 At some point after Hendle returned to the interrogation room, plaintiff began sobbing.

He asked why he would “do this.” He stated that he did not understand why he would kill the

people who meant the most to him, and he wondered if he was “afraid of success.” Lowery

returned to the room at 10 a.m., and plaintiff stated “ ‘I killed my parents.’ ” The

conversation continued, and, at 10:22 a.m., plaintiff requested an attorney.

¶ 65 During the interrogation, Hendle was unaware that Morris had sustained two slash

wounds, that he had been stabbed, that he had three injuries to his head, and that his skull had

been fractured. She was also unaware that Ruth had sustained three slash wounds to her

throat, that her head had been hit, that her skull was fractured, and that she had seven injuries

to her head.

¶ 66 3. Defendant Eugene Lowery

¶ 67 Lowery testified that, at the sheriff’s station, the detectives read plaintiff his Miranda

-13-

rights, but he was not under arrest. Plaintiff never asked to leave at any time during the

interview. During the interview, plaintiff made references to the Bible. Lowery wrote in his

notes, “Jesus Freak.” He explained that it was a notation to remind him to ask plaintiff

further questions. Lowery testified that plaintiff never appeared tired or fatigued; he never

saw plaintiff yawn. Lowery could not recall if Frankenberry told him and Hendle that

plaintiff yawned throughout the polygraph. Frankenberry did not mention fatigue.

¶ 68 When Hendle told plaintiff that he had not passed the polygraph examination, plaintiff

was upset; he did not believe that he had not passed. Lowery did not necessarily want

plaintiff to think he had failed, but he wanted to get a response from plaintiff because he had

been “emotionless” all night. Lowery concurred with Hendle that, up to the polygraph, the

questioning was more in the form of an interview than an interrogation. The questioning

became more confrontational after the polygraph. Lowery raised his voice at least once

during the postexam questioning.

¶ 69 Lowery denied that he told plaintiff that there was a lot of physical evidence at the scene.

He also denied telling plaintiff that the polygraph machine does not give false results.

Lowery further denied that he told plaintiff that he could not lie to him. He denied stating to

plaintiff, “how could you kill your mother?” After the polygraph and until about 5:40 a.m.

on Saturday, the interrogation to a great extent covered the same ground. The Gauger farm

was about 20 minutes from the interview location. Lowery testified that he could have sent

Pandre to the farm to pick up a set of clothes for plaintiff to change into, but he did not.

Plaintiff was given jail garb to wear.

¶ 70 Between 5:40 and 8:15 a.m., Hendle was absent from the interview room and Pandre was

present. Lowery did not see signs of fatigue in plaintiff even though plaintiff had been awake

for over 20 hours. Lowery was tired. Plaintiff gave a confession during this time, specifically,

“an account that it was like living it at that time.” He also made a slashing motion when he

described each of the murders. Lowery denied that plaintiff ever stated that he was not going

to sign a confession because he had no memory of committing the murders. Lowery denied

that the detectives tried to cover up anything that occurred during the interview by creating

only a single report of it.

¶ 71 Addressing the absence of any recording of plaintiff’s interrogation, Lowery explained

that the department did not have a video camera in 1993, though he conceded that the

detectives could have obtained a tape recorder to audiotape the interview; they chose not to.

The detectives could have called a court reporter, although it was not their practice to do so.

The detectives chose not to take plaintiff’s written statement. Lowery explained:

“[Lowery]: I don’t know if it was so much chose. We didn’t at the time, and if we

may have had the opportunity to talk a little longer and worked out some more details in

that confession, we might have offered, but we did not at the time.

Q. If you may have had a chance to talk longer you might have done it, is that your

testimony?

A. Absolutely.”

Lowery had previously taken written statements. When asked if there was anything about

plaintiff that suggested he would not have signed a written statement, Lowery stated that

-14-

there was nothing, except for the fact that he was very upset. According to Lowery, at no

point did plaintiff couch any statement in hypothetical terms.

¶ 72 About 8:15 a.m. on Saturday, Lowery left the interrogation room and Hendle returned.

Lowery returned at 8:45 a.m. with breakfast, left again, and then returned at 10 a.m. Only

Hendle and plaintiff were in the room. Plaintiff was crying and hanging on to Hendle.

Plaintiff stated: “ ‘I killed my parents.’ ” He did not appear fatigued, but he did appear very

emotionally distressed.

¶ 73 Addressing plaintiff’s statements concerning the discovery of his father’s body, Lowery

testified that he thought it “odd” that plaintiff (leading Zender and Foskus) did not take the

most direct route to the motorcycle parts area; plaintiff had said that instead of walking down

the first aisle, where an obstruction was present, he led the visitors down the center aisle,

which was farther away from the parts area and from where Morris’s body was located.

Lowery further testified that his observations of Morris’s body and the surrounding area

indicated to him that there was no struggle. There were no signs of forced entry into the

garage or the rug trailer. Lowery was at the scene for about a half-hour; he arrived at the farm

at 3:17 p.m. Before he left, the sheriff told Lowery that plaintiff stated to the 911 operator

that his father had been dead for about one day.

¶ 74 During the interview, it did not appear to Lowery that plaintiff was in shock. He never

asked to leave. When the interview commenced, plaintiff was not a suspect. After the

polygraph, the questioning became an interrogation. The detectives did not suspect a burglary

or similar crime; plaintiff told them during the interview that there were about 6 to 12 guns

in the house. (Presumably, the guns were not missing.) Lowery testified that plaintiff spoke

in very positive terms about his mother, but was “more negative” about his father. Plaintiff

stated that it was a good day when he did not have to see his father before he went to the

greenhouse and started work.

¶ 75 When plaintiff awoke on Thursday, April 8, 1993, he noticed that the dishes from the

previous evening’s dinner had not been washed, contrary to his mother’s custom, that the

beds had not been made, and that there were no signs that anyone had eaten breakfast that

morning. Plaintiff stated that his parents had previously left the farm without leaving a note.

¶ 76 According to Lowery, plaintiff told the detectives that he looked everywhere for his

parents (beginning about 10:30 p.m. Thursday), but he had no answer when they specifically

asked him if he looked in the most likely places his parents would be: the motorcycle shop

and the rug trailer. Plaintiff’s explanation of the light on in the motorcycle shop “varied.” On

the one hand, it was unusual for the light to be on; on the other hand, it was left on for

security reasons. On Thursday, plaintiff smoked marijuana all day; he said that it was all a

blur. Lowery did not know if plaintiff’s efforts to locate his parents were “genuine.” He

explained that plaintiff did not wake up until 9 a.m. on Friday. Lowery was concerned that

plaintiff stated that he picked up the mail and newspapers (several days’ worth) and put up

the chain. Plaintiff had stated that, if the chain was down, his parents were home and, if it

was up, they were gone. Plaintiff made no phone calls trying to locate his parents.

¶ 77 Lowery’s analysis was that, given that there were no signs of intruders and nothing was

missing, either the Gaugers were surprised by their attackers or they were familiar with their

-15-

attackers. Lowery also found it odd that any potential robber or burglar did not also search

the farmhouse either to take something or to ensure that nobody witnessed the crimes. When

they discussed a polygraph, Lowery was disturbed when plaintiff stated that he thought he

could “beat” the exam.

¶ 78 In Lowery’s view, the questioning turned into an interrogation and became more

confrontational after the polygraph because the detectives wanted more details from plaintiff.

Lowery denied ever asking plaintiff in the hallway how he would have killed his parents.

Rather, Hendle asked how someone could kill plaintiff’s parents, although Lowery conceded

that, in her report, Hendle wrote that Hendle asked “how someone would do that.” At this

point, plaintiff made a motion with his hands: he raised his left hand and made a fist and

started to raise his right hand; he then put down his arms.

¶ 79 Lowery denied that he told plaintiff that the police had bloody clothes, a bloody knife,

or bloody sheets; it would have been a “huge mistake.” He explained that the detectives did

not know what had been discovered at the crime scene; it would have been a “horrible risk”

to attempt to “bluff” plaintiff. Plaintiff stated that, if he killed his parents, he did not

remember it.

¶ 80 Initially, plaintiff did not want to see the photographs of his parents’ bodies, but he later

viewed the photographs. Lowery denied that he stood up and slammed the photographs onto

the table in front of plaintiff and yelled something at him. Rather, he opened a file folder and

laid them in front of plaintiff. Plaintiff did not show any emotional reaction or shock.

Plaintiff commented that his parents were wearing outdoor clothing.

¶ 81 The rug trailer was 30 feet from plaintiff’s bedroom. This aspect “bothered” Lowery

because plaintiff claimed that he did not hear anything. Plaintiff never asked to use the

telephone in the interview room. When Pandre entered the interview room with jail garb,

Lowery did not intend to charge plaintiff with the murders, because the detectives did not

have probable cause to believe that plaintiff committed the crimes.

¶ 82 Plaintiff began his confession after Pandre told him that the detectives were not there to

judge him. Plaintiff stated that he did not recall if he covered up his mother’s body with

blankets after he killed her and he did not recall if he locked the trailer. Plaintiff also stated

that, if he did cover up his mother, that would have meant that he cared for her.

¶ 83 4. Defendant Christopher Pandre

¶ 84 Pandre testified that he saw plaintiff in the interview room for a few minutes about 12:30

a.m. on Saturday, April 10, and then was present in the room between 5:40 and 8:15 a.m.

Plaintiff did not appear tired. The detectives gave plaintiff jail clothes (about 5:40 a.m.)

before he allegedly confessed (about 7 or 7:30 a.m.). According to Pandre, he could not have

retrieved clothes for plaintiff from the Gauger farm because it was a crime scene and was on

lockdown.

¶ 85 Pandre denied yelling at plaintiff during the interrogation. When the detectives asked

plaintiff why he killed his parents, plaintiff explained that he believed he was a “dredge” on

them and that they were always taking care of him. This explanation was not included in the

detectives’ report.

-16-

¶ 86 5. Other Witnesses

¶ 87 Ginger Blossom, plaintiff’s sister, testified that, some time after the murders, she met

Hendle at the farmhouse. Hendle told Blossom that, to assist people in talking, detectives

sometimes ask suspects hypothetical questions about how they would have killed someone.

¶ 88 Ed Zender testified that, when he and Foskus drove up to the Gauger farm on the day the

Gaugers’ bodies were discovered, the gate at the end of the driveway was closed and the

chain was up (he parked his truck on the side of Route 173). Plaintiff told him that he had

not seen his parents for two days and thought this was unusual. Plaintiff thought that they

might be out of town with Windy. Plaintiff did not hesitate to take Zender into the

motorcycle shop. Describing the room they walked through immediately before they

discovered Morris’s body, Zender testified:

“There is only one window in there, but it is on the other end where there’s not much

light with all the shelving in the way. [Plaintiff] had started to go down one row that was

right through the doorway. I believe it was too cluttered with things so we backed up and

moved over to the next row to walk down the middle part there.

From there, we walked to the end. And you come to a dead end in that aisle. You

have to turn right and go up a step and then turn left to go into the next room where we

were going.”

Once they went up the step, they discovered Morris’s body. Plaintiff appeared worried and

asked for a hug. He was concerned for his mother and inquired about her several times. As

to his father, plaintiff speculated that he might have tripped over something in the aisles.

According to Zender, the aisles were cluttered.

¶ 89 Zender further testified that he, Foskus, and plaintiff looked for Ruth. Zender looked

through a window into the rug trailer, and plaintiff checked one of the barns.

¶ 90 Dr. Larry Blum, the pathologist who conducted the autopsies of the Gaugers’ bodies after

plaintiff had been charged, testified that Morris sustained blunt force injuries to his scalp, a

stab wound to his back, and at least two starting points for the neck wound. Ruth sustained

blunt force trauma to her head, and the slash wound on her neck was caused by at least three

cuts. Dr. Blum stated that he did not find any signs of defensive struggle on either body.

¶ 91 6. Verdict and Subsequent Proceedings

¶ 92 On August 20, 2009, the jury returned a verdict and answered special interrogatories in

defendants’ favor on all claims.5 On August 20, 2009, the court entered judgment on the

verdict. On March 1, 2010, the court denied plaintiff’s motion for a new trial. Plaintiff

appeals.

5

The answers included that, when they initiated criminal proceedings against plaintiff: (1)

each detective had probable cause to believe that plaintiff committed the charged offenses; and (2)

none of the detectives acted with malice.

-17-

¶ 93 II. ANALYSIS

¶ 94 A. Plaintiff‘s Statement of Facts

¶ 95 Preliminarily, we address defendants’ request that we strike portions of plaintiff’s

statement of facts for being in violation of Illinois Supreme Court Rule 341(h)(6) (eff. March

16, 2007) (appellant’s statement of facts “shall contain the facts necessary to an

understanding of the case”). They argue that plaintiff’s statement of facts presents a skewed

version of the relevant facts by citing only, with one exception, to his own testimony; that

he ignores all testimony that contradicts his own; and that he omits portions of his own

testimony that do not favor him. Although we agree that plaintiff’s statement of facts violates

the rule, we reject defendants’ request to strike and instead will ignore those portions that

provide an incomplete version of the events. Given that we possess and have reviewed the

record and defendants’ statement of facts, our review of the appeal is not hindered. Budzileni

v. Department of Human Rights, 392 Ill. App. 3d 422, 440-41 (2009) (declining to strike

brief).

¶ 96 B. Probable Cause–Exclusion of Appellate Court Order

¶ 97 Turning to the merits plaintiff argues first that the trial court erred in excluding from

evidence our March 8, 1996, Rule 23 order that reversed plaintiff’s conviction in his criminal

trial. He argues that exclusion of the order tainted the jury’s evaluation of probable cause.

Plaintiff raised several alternative bases for admission of the order: (1) the law-of-the-case

doctrine; (2) collateral estoppel; and (3) relevance. For the following reasons, we conclude

that the trial court did not err in excluding the Rule 23 order from evidence.

¶ 98 The trial court is in the best position to make decisions regarding the admission of

evidence. People v. Slater, 228 Ill. 2d 137, 151 (2008); In re Marriage of Walker, 386 Ill.

App. 3d 1034, 1042 (2008). We review evidentiary rulings for an abuse of discretion. Porter

v. City of Chicago, 393 Ill. App. 3d 855, 857 (2009). A trial court abuses its discretion where

no reasonable person would take the view adopted by the court. Dawdy v. Union Pacific R.R.

Co., 207 Ill. 2d 167, 176-77 (2003).

¶ 99 To establish malicious prosecution, a plaintiff must show: (1) the commencement or

continuance of an original criminal or civil judicial proceeding by the defendant; (2) that the

proceeding terminated in favor of the plaintiff; (3) the absence of probable cause; (4) malice;

and (5) damages. Swick v. Liautaud, 169 Ill. 2d 504, 512 (1996). The failure to establish any

one of the foregoing elements precludes recovery for malicious prosecution. Fabiano v. City

of Palos Hills, 336 Ill. App. 3d 635, 641 (2002).

¶ 100 Plaintiff moved in limine to admit our Rule 23 order, arguing that the order was the law

of the case and was definitive as to whether there was probable cause to arrest plaintiff absent

defendants’ assertions that he confessed and, thus, it was relevant to a key element of

plaintiff’s malicious-prosecution claim. In the order, we held that, when the officers

originally took plaintiff in for questioning, they placed him in custody but lacked probable

cause to do so; there was no probable cause until plaintiff made incriminating statements at

the police station. Gauger, slip order at 27-28. We further held that plaintiff’s incriminating

statements should have been suppressed because they constituted the fruits of the illegal

-18-

arrest. Id. at 29.

¶ 101 Defendants responded below by arguing that the law-of-the-case doctrine does not apply

to a judgment reached in a separate and distinct proceeding. Although they conceded that the

facts in the two cases overlapped, they asserted that the matters were nonetheless separate

and contained different legal issues, parties, and standards of proof. Addressing probable

cause, defendants argued that the issue in the criminal case was not identical or relevant in

the civil case. Thus, they urged that probable cause in the criminal case was not going to be

relitigated in the civil suit, because the precise issue was not the same. Defendants noted that

we determined that there was no probable cause to arrest plaintiff. Defendants argued that

plaintiff’s current suit alleged not false arrest,6 but only malicious prosecution, which

involves assessing whether probable cause existed when plaintiff was charged. In this regard,

defendants urged, the Rule 23 order was limited to determining probable cause to arrest and

did not address whether there was probable cause to institute or continue criminal

proceedings against plaintiff.

¶ 102 On August 7, 2009, the trial court denied plaintiff’s motion in limine (ruling that the Rule

23 order was inadmissible), unless defendants opened the door to such evidence. (The record

on appeal contains no transcript of any hearing on that date.)

¶ 103 During trial, after Lowery testified, plaintiff’s counsel noted to the trial judge that both

Hendle and Lowery had testified that plaintiff was not under arrest when he was at the police

station. He requested that a stipulation be read to the jury that, based on the Rule 23 order,

defendant was actually under arrest. Defendants’ counsel objected, noting that plaintiff’s

counsel opened the door by asking questions concerning whether plaintiff was under arrest.

The trial court agreed and denied plaintiff’s counsel’s request. The court noted that it was

denying his request because: (1) plaintiff’s counsel himself opened the door to address

something the court had already excluded via a prior ruling; (2) the law-of-the-case doctrine

did not permit its entry, as the appellate court did not rule on precisely the same issue; and

(3) granting the request could confuse the jury “as to what all this meant, as opposed to what

they knew and did at a certain point in time.” The court invited plaintiff to submit case law

supporting his argument.

¶ 104 Plaintiff raised the issue again in his posttrial motion. At the hearing on the motion,

plaintiff’s counsel argued that the Rule 23 order held that there was no probable cause until

plaintiff’s alleged confession, and the arrest and the charges were not so attenuated in time

as to make the order irrelevant or confusing to the jury. Plaintiff’s counsel also argued that,

as to relevance, the order would have informed the jury that, during the great bulk of the time

that plaintiff was questioned, there was no probable cause, and thus the jury would have been

6

False arrest or false imprisonment is the unlawful restraint of an individual’s personal

liberty. Lappin v. Costello, 232 Ill. App. 3d 1033, 1041 (1992). The elements of false arrest “are that

the plaintiff was restrained or arrested by the defendant, and that the defendant acted without having

reasonable grounds to believe that an offense was committed by the plaintiff.” (Emphasis added.)

Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 474 (1990). “If probable cause existed for the

arrest, an action for false arrest cannot lie.” (Emphasis added.) Lappin, 232 Ill. App. 3d at 1041.

-19-

better able to focus on the central issue–whether plaintiff confessed. Counsel urged that,

whether the order was admitted as law of the case or via estoppel, the jury should have been

able to make its probable-cause findings with the knowledge that plaintiff was under arrest

when he was put in the squad car at the farm, especially in considering the parties’

credibility. He further urged that plaintiff suffered prejudice as a result of the jury evaluating

probable cause based only on the trial testimony.

¶ 105 In denying plaintiff’s motion for a new trial, the court noted that the Rule 23 order

focused on whether there was probable cause to arrest, whereas the focus of the malicious-

prosecution suit was probable cause to initiate the proceedings. Thus, the issues were

different. The court reiterated that it would have been confusing for the jury to hear that there

was no probable cause for plaintiff’s arrest until his confession. Further addressing juror

confusion, the court noted that the Rule 23 order also addressed, for double jeopardy

purposes, whether there was sufficient evidence at the criminal trial to prove defendant’s

guilt beyond a reasonable doubt. Gauger, slip order at 29-30. The trial judge stated that this

issue would also have confused the jury and that it was not an issue in the civil suit. (Plaintiff

sought to introduce the entire Rule 23 order.)

¶ 106 On appeal, plaintiff argues first that the law-of-the-case doctrine applies here given the

“nearly total overlap” of the probable cause issue in both the criminal and the present

proceedings and given the nearly identical parties and interests in both proceedings.7 Plaintiff

contends that defendants were allowed to relitigate a critical aspect of probable cause and to

encourage the jury to reach a different conclusion about the issue. Thus, excluding the Rule

23 order undermined our authority and invited inconsistent results. Plaintiff, for example,

takes issue with defendants’ closing arguments, noting that they focused on evidence of

probable cause from events before the disputed morning hours of April 10, 1993. He notes

that these were the same facts that we had addressed and held did not constitute probable

cause.

¶ 107 The law-of-the-case doctrine provides that “where an issue has been litigated and

decided, a court’s unreversed decision on that question of law or fact settles that question ‘for

all subsequent stages of the suit.’ ” Pekin Insurance Co. v. Pulte Home Corp., 344 Ill. App.

3d 64, 69 (2003) (quoting Norton v. City of Chicago, 293 Ill. App. 3d 620, 624 (1997)).

There are two exceptions to the doctrine: (1) where a higher reviewing court subsequently

issues a contrary ruling on the same issue; and (2) where the lower reviewing court, after

remanding the case for a new trial on all issues, determines that its prior decision was

palpably erroneous. Alwin v. Village of Wheeling, 371 Ill. App. 3d 898, 911 (2007). Unlike

collateral estoppel, which we discuss below, the law-of-the-case doctrine applies to issues

that were already determined in the same case. People v. Tenner, 206 Ill. 2d 381, 396 (2002).

¶ 108 The law-of-the-case doctrine has no application here. The present lawsuit is a civil case

and is thus distinct from plaintiff’s criminal case. Although the two proceedings involved

7

Although he addressed this issue in his briefs to this court, plaintiff essentially conceded

at oral argument that the law-of-the-case doctrine does not apply here. We nevertheless address it,

as it is briefly disposed of.

-20-

similar facts, the legal issues, standards of proof, and parties were different.

¶ 109 Alwin v. Village of Wheeling, 371 Ill. App. 3d 898 (2007), upon which plaintiff relies,

is inapposite. Alwin involved an airplane crash and a subsequent wrongful-death and survival

suit against several municipal defendants and the plane’s owner. In a prior appeal, the

appellate court held that the municipal defendants owed the plaintiffs a duty of care (to

maintain a public airport in a reasonably safe condition) and that the municipal defendants

were not immune from liability under a tort immunity statute. Id. at 905, 912; see also

Anderson v. Alberto-Culver USA, Inc., 317 Ill. App. 3d 1104, 1112, 1117 (2000). The Alwin

court rejected the municipal defendants’ argument that the law-of-the-case doctrine did not

apply, concluding that the issues of duty and immunity were previously decided and were the

law of the case and therefore binding. Alwin, 371 Ill. App. 3d at 913-14 (rejecting arguments

that doctrine did not apply where the previous decision dealt with summary judgment and

that two exceptions to doctrine applied). Thus, the municipal defendants were precluded

from asserting that the prior appeal was wrongly decided. In contrast, plaintiff here seeks, in

a different case and with different parties, to assert that the Rule 23 order from his criminal

case was the law of the case in the present civil suit.

¶ 110 Plaintiff further complains that the jury was not allowed to consider the fact that he was

placed under arrest at the farm and remained under arrest throughout his interrogation. In his

view, the jury was not allowed to consider this fact as part of the totality of the

circumstances. He notes that this situation was made worse by defendants’ testimony that

plaintiff was not under arrest during his interrogation and that he was free to leave right up

to the time he made the incriminating statements. This testimony, plaintiff argues, was in

contravention of the Rule 23 order as to the issue of arrest, and he notes that it was during

this testimony that his counsel again moved to admit the order. Plaintiff asserts that our

authority was undermined by allowing the jury to draw its own conclusions about whether

plaintiff was under arrest and by allowing defendants to testify that plaintiff was free to

leave. Further, he contends that the jury was deceived and that its evaluation of probable

cause was tainted. We reject plaintiff’s argument.

¶ 111 Initially, we reject plaintiff’s complaint concerning defendants’ testimony that plaintiff

was not under arrest during his interrogation and that he was free to leave right up to the time

that he made the incriminating statements. As previously noted, it was plaintiff’s counsel

who questioned the detectives on this issue. Thus, as the trial court noted in denying

plaintiff’s request to admit the Rule 23 order, plaintiff’s counsel himself opened the door to

address something that the court had excluded via a prior ruling.

¶ 112 Second, we note that, in assessing probable cause to arrest, the existence of probable

cause depends on the totality of the circumstances at the time of the arrest. See, e.g., People

v. Love, 199 Ill. 2d 269, 279 (2002). The determination is based on facts known to the police

at the time of the arrest. People v. Chapman, 194 Ill. 2d 186, 217 (2000); see also 725 ILCS

5/107–2(1)(c) (West 2008) (peace officer may make warrantless arrest when the officer “has

reasonable grounds to believe that the person is committing or has committed an offense”).

The existence of probable cause in a malicious-prosecution action is “determined by looking

to what the defendants knew at the time of subscribing a criminal complaint” and not at the

(earlier) time of arrest. Porter v. City of Chicago, 393 Ill. App. 3d 855, 868-69 (2009). In a

-21-

malicious-prosecution case, probable cause is defined as “a state of facts that would lead a

person of ordinary care and prudence to believe or to entertain an honest and sound suspicion

that the accused committed the offense charged.” (Emphasis added.) Fabiano, 336 Ill. App.

3d at 642. “It is the state of mind of the person commencing the prosecution that is at

issue–not the actual facts of the case or the guilt or innocence of the accused.” Sang Ken Kim

v. City of Chicago, 368 Ill. App. 3d 648, 654 (2006). Errors that are not grossly negligent do

not affect the probable cause inquiry when the complainant has an honest belief that the

accused is probably guilty of the offense. Id. at 654-55. The issue in the present lawsuit was

whether defendants had probable cause to charge plaintiff on April 10, 1993. The Rule 23

order addressed probable cause to arrest, which is a different issue, as plaintiff acknowledges.

We agree with defendants that the Rule 23 order’s conclusion that before plaintiff made

incriminating statements there was no probable cause to arrest did not mean that the events

leading up to the statements could not be considered in conjunction with plaintiff’s

statements in determining whether there was probable cause to prosecute. Cf. People v.

Strauser, 146 Ill. App. 3d 128, 132 (1986) (law-of-the-case doctrine and collateral estoppel

did not apply to preclude trial court from hearing the defendants’ motions to suppress

evidence; earlier appellate court decision addressed probable cause for the issuance of a

search warrant in context of addressing two motions to quash the search warrant, whereas

the cause at issue concerned probable cause to arrest).

¶ 113 Next, we address plaintiff’s claim that collateral estoppel warranted admission of the

Rule 23 order. Preliminarily, we note that it was defendants, not plaintiff, who first raised

collateral estoppel at trial. Plaintiff addressed collateral estoppel only in his reply to

defendants’ arguments, including in his reply on his posttrial motion. Thus, plaintiff has

arguably forfeited this argument. See Gillespie v. University of Chicago Hospitals, 387 Ill.

App. 3d 540, 546 (2008) (to preserve an issue for appeal, an objection must be made at trial

and the issue must be raised in a posttrial motion); see also Midwest Physician Group, Ltd.

v. Department of Revenue, 304 Ill. App. 3d 939, 952 (1999) (where collateral estoppel is not

raised at trial, issue is forfeited for review). However, given that the trial court made findings

on this issue, we choose to briefly address it.

¶ 114 Collateral estoppel (or issue preclusion) is an equitable doctrine that, like the law of the

case doctrine, prevents a party from relitigating an issue that has been decided in a prior

proceeding. Collateral estoppel applies when: (1) the issue decided in the prior adjudication

is identical to the issue in the present suit; (2) a final judgment was entered on the merits in

the prior adjudication; and (3) the party against whom estoppel is asserted was a party to or

in privity with a party to the prior adjudication. Talarico v. Dunlap, 177 Ill. 2d 185, 191

(1997). Application of collateral estoppel must be narrowly tailored to fit the precise facts

and issues that were clearly determined in the prior judgment. Kessinger v. Grefco, Inc., 173

Ill. 2d 447, 467-68 (1996). A judgment in the first suit operates as an estoppel only as to the

point or question actually litigated and determined and not as to other matters that might have

been litigated and determined. Nowak v. St. Rita High School, 197 Ill. 2d 381, 389-90 (2001).

“It is axiomatic that circuit courts have broad discretion to ensure that application of

offensive collateral estoppel is not fundamentally unfair to the defendant, even though the

threshold requirements for collateral estoppel are otherwise satisfied.” Preferred Personnel

-22-

Services, Inc. v. Meltzer, Purtill & Stelle, LLC, 387 Ill. App. 3d 933, 945 (2009).

¶ 115 We reject plaintiff’s claim that collateral estoppel applies here. The issue addressed in

the Rule 23 order–probable cause to arrest–is not identical to the issue in the present

lawsuit–probable cause to prosecute. A party asserting “collateral estoppel bears the ‘heavy

burden’ of demonstrating with clarity and certainty what the prior judgment determined.

[Citations.]” Peregrine Financial Group, Inc. v. Martinez, 305 Ill. App. 3d 571, 581 (1999).

For the doctrine to apply, “ ‘it must conclusively appear that the fact must have been so in

issue that it was necessarily decided by the court rendering the prior judgment. If there is any

uncertainty because more than one distinct issue of fact is presented to the court, the estoppel

will not be applied.’ ” Id. (quoting Betts v. Manville Personal Injury Settlement Trust, 225

Ill. App. 3d 882, 926 (1992)). Here, clearly the central issue in the Rule 23 order was not

whether there was probable cause to prosecute, but whether there was probable cause to

arrest. As previously noted, probable cause to arrest depends on the totality of the

circumstances at the time of the arrest and is based on the facts known to the police at that

time. Love, 199 Ill. 2d at 279 (the facts known to the officer at the time of arrest must be

sufficient to lead a reasonably cautious person to believe that the arrestee has committed a

crime). In contrast, in assessing probable cause in a malicious-prosecution case, we look to

what the defendants knew when they commenced the prosecution (i.e., subscribed the

criminal complaint). Porter, 393 Ill. App. 3d at 868. Therefore, collateral estoppel does not

apply. Cf. Strauser, 146 Ill. App. 3d at 132 (rejecting collateral-estoppel and law-of-the-case

doctrines where previous issue concerned probable cause for the issuance of a search warrant

and current issue concerned probable cause to arrest).

¶ 116 Next, plaintiff argues that the Rule 23 order was relevant to the issue of defendants’ lack

of probable cause to prosecute, and he urges that its exclusion from evidence unfairly

prejudiced him. See, e.g., In re Kenneth J., 352 Ill. App. 3d 967, 980 (2004) (evidence must

be relevant to be admissible). Plaintiff contends that the Rule 23 order would have: (1)

instructed the jury as to what precisely did not constitute probable cause; (2) provided

evidence of defendants’ lack of probable cause to prosecute before plaintiff’s incriminating

statements; and (3) assisted the jury in understanding that the existence of probable cause to

prosecute turned on whose account of the events of April 10, 1993, was more credible.

According to plaintiff, the Rule 23 order clarified that there was no probable cause to

prosecute plaintiff absent the incriminating statements made on the morning of April 10,

1993, and, therefore, the order bore directly on a key element of plaintiff’s malicious-

prosecution claim and should have been admitted. Plaintiff further argues that the order was

neither irrelevant nor confusing for not completely disposing of the probable cause issue–that

is, for leaving the jury to decide whether a confession was made on April 10, 1993. He

asserts that our holding as to what did not constitute probable cause and our roadmap of what

any probable cause finding in this case had to turn on (i.e., the making of incriminating

statements) were relevant and not confusing. In plaintiff’s view, the order would have

assisted the jurors in understanding where the probable cause “bar” was set in this case.

¶ 117 Again, we reject plaintiff’s claim. The trial court did not abuse its discretion in finding

that the Rule 23 order would likely have confused the jury, and we do not believe that

plaintiff was prejudiced by the ruling. The distinctions between the concepts of arrest and

-23-

prosecution can reasonably be viewed as confusing to a lay juror. As defendants note, had

the Rule 23 order been admitted, it is reasonable to predict that the jury would have been

confused by the import of our: (1) holding that there was no probable cause for plaintiff’s

arrest until his incriminating statements on April 10, 1993; and (2) conclusion on the

sufficiency-of-the-evidence issue. Plaintiff’s assertion that the Rule 23 order clarified that

there was no probable cause to prosecute him absent and until the incriminating statements

on the morning of April 10, 1993, is not well taken. Plaintiff contends that the focus of the

probable-cause-to-prosecute issue in the present lawsuit was whether the incriminating

statements were actually made. Instead, according to plaintiff, the jury was “encouraged” to

revisit certain facts that we held in the Rule 23 order did not constitute probable cause,

including the quality of plaintiff’s detective skills as he searched for his parents and the

appropriateness of his emotional responses to the unfolding events. We reject plaintiff’s

claim, because the Rule 23 order did not assess the parties’ credibility. Plaintiff’s claim that

he was prejudiced by the ruling because the jury never heard that he was under arrest

throughout the interrogation is not well taken because whether he was under arrest had no

bearing on whether there was probable cause to prosecute him.

¶ 118 In summary, the trial court did not abuse its discretion in excluding the Rule 23 order.8

¶ 119 C. Malice–“Real Killers” Evidence

¶ 120 Next, plaintiff argues that the trial court erred in excluding evidence showing how the:

(1) murders were committed; and (2) “real killers” were discovered. He urges that this

evidence was critical to his ability to show malice. For the following reasons, we reject

plaintiff’s argument.

¶ 121 Prior to trial, plaintiff moved in limine: (1) to bar Ignasiak’s testimony and any references

to his conversations with Miller (concerning how the “farmer’s son” paid Miller to kill the

Gaugers); and (2) to admit Schneider’s testimony and wiretap recordings of Schneider and

Miller (on the basis of the recordings, both men were charged with the Gauger murders).

Plaintiff also requested a stipulation regarding how his innocence was established.

Defendants’ relevant motions in limine sought to bar all evidence of actual innocence, other

than the Governor’s pardon. The trial court: (1) granted plaintiff’s motion to bar Ignasiak’s

testimony and any references to his alleged conversations with Miller; (2) denied plaintiff’s

motion to admit Schneider’s testimony and the wiretap recordings of Schneider and Miller;

and (3) barred any evidence relating to the Outlaw investigation.9 Also, the parties agreed to

the following stipulation: “The criminal case against [plaintiff] terminated in his favor, on

the merits, and he was pardoned based on his actual innocence. In June of 1997, the two

8

We express no opinion herein concerning the admissibility of the Rule 23 order in the

context of any false arrest/false imprisonment claim that plaintiff may have pursued, because prior

to trial, the court granted summary judgment in defendants’ favor on that count.

9

Thus, defendants could not introduce evidence of their investigation after plaintiff was

charged shortly after 10 a.m. on April 10, 1993, with the exception of the pathologist’s testimony.

-24-

killers were apprehended.”10

¶ 122 The malice element of malicious prosecution may be proved “by showing that the

prosecutor proceeded with the prosecution for the purpose of injuring plaintiff or for some

other improper motive.” Aguirre v. City of Chicago, 382 Ill. App. 3d 89, 97 (2008). Malice

may be inferred from a lack of probable cause only where there is no credible evidence that

refutes that inference. Johnson v. Target Stores, Inc., 341 Ill. App. 3d 56, 77 (2003).11

¶ 123 1. Exclusion of Evidence of How the “Real Killers” Committed the Crimes

¶ 124 Plaintiff argues first that the jury should have been permitted to consider the evidence of

how the “real killers” committed the crimes (the Outlaw evidence) and that the jury could

have concluded that it supported plaintiff’s position that defendants knowingly fabricated his

alleged confession and, therefore, acted with malice. He notes that his theory of malicious

prosecution was that, over 18 hours of interrogation, defendants “fed” him facts that he

eventually recited to them while also maintaining that he had no memory of killing his

parents. Plaintiff contends that, based solely on the manufactured statements (and leaving out

important facts, including the statements’ hypothetical nature and plaintiff’s lack of memory

of the events they described), defendants initiated criminal proceedings against him. Plaintiff

urges that evidence of the details of the “actual” crimes, through the Outlaw evidence, is

important. Specifically, he notes that Schneider and Miller explained how they committed

the murders, including details that only the true killers would know. They specified the time

they arrived at the farm; how Ruth was killed (by first being hit over the head and then

having her throat slashed several times); how Morris was killed (by head blows and multiple

slash wounds to the throat); how the bodies were positioned; how Miller stabbed Morris in

the side; and the measures they took to leave no physical evidence. Plaintiff argues that the

details Schneider and Miller provided give credence to plaintiff’s theory that defendants

manufactured his statements because key details were missing from his statements and

plaintiff provided only details that he learned from defendants. He notes that he never

mentioned any injuries to his parents’ heads, nor did he state that their throats were slashed

multiple times. Plaintiff also notes that he did not mention a knife wound to Morris’s side.

10

Also, the jury was instructed that “the criminal proceeding was terminated in favor of

[plaintiff] on the basis of his innocence” and that this element of malicious prosecution had been

proved and need not be considered by the jury.

11

On malice, the jury was instructed as follows:

“ ‘Malice’ is defined as the intent, without justification or excuse, to commit a

wrongful act. Malice is proved by evidence or reasonable inferences drawn from the

evidence that the prosecution was set in motion as a result of improper motive. An improper

motive for a prosecution is any reason other than bringing the party to justice. The term

malice is not limited to personal ill-will, spite, or hatred toward plaintiff. Instead, malice

may be inferred from the absence of probable cause, if the circumstances surrounding the

commencement of the criminal proceeding are inconsistent with good faith and if the

absence of probable cause has been clearly proved.”

-25-

In plaintiff’s view, a jury could have found that he did not mention these details because

defendants had no knowledge of them; that is, where defendants were not aware of these

details, they could not have suggested them to plaintiff.

¶ 125 We begin our analysis by reviewing Aguirre and Porter, the two cases upon which the

parties rely. In Aguirre, three plaintiffs sued a municipality and six police officers, alleging

that the defendants maliciously prosecuted them for kidnapping and murder. A jury returned

a verdict in the plaintiffs’ favor, and the defendants appealed, arguing that the trial court

abused its discretion in admitting the testimony of the confessed murderer describing the

crime. The actual killer confessed to the murder five years after the investigation. Thereafter,

the State’s Attorney’s office nol-prossed the cases against the plaintiffs.

¶ 126 On review, the court upheld the trial court’s admission of the actual killer’s testimony,

concluding that it was relevant: (1) to show that the plaintiffs received a favorable

termination of the proceedings; and (2) to establish malice. Aguirre, 382 Ill. App. 3d at 98.

As to malice, the plaintiffs had sought to introduce the actual killer’s testimony to show that

their confessions were false. Specifically, they sought to show that, although they did not

speak to each other during the interrogations, their confessions were similar. From this, they

believed that the jury could infer that the police told each plaintiff what to say, and this

inference would help establish malice. The appellate court rejected the defendants’ argument

that, from the actual killer’s testimony, the jury would have made several tenuous inferences.

Id. at 99. In the court’s view, the fact that the actual killer testified to intricate details of the

crime that only the killer would know would not require the jury to draw an inference; rather,

the jury could accept that he committed the crime. Id. Further, if he committed the crime,

then the plaintiffs could not have committed it and their confessions were false. Id. The court

noted that the actual killer’s testimony also worked in concert with other evidence the

plaintiffs presented to allow the jury to infer malice, specifically, that they were held in

detention and could not have communicated with each other before the State filed charges,

yet their versions of the events were substantially similar. Id.

¶ 127 In Porter, the plaintiff sued a municipality and several police officers, alleging malicious

prosecution. The plaintiff had been convicted of the 1982 murders of two individuals. In

1998, a third party confessed to (and was incarcerated for) the murders and, as a result, the

State dropped the charges against the plaintiff and he was released from custody. The

plaintiff filed a malicious-prosecution complaint against the defendants, asserting that the

police targeted him as the shooter without probable cause to do so and coerced witness

cooperation to obtain a conviction. He sought to introduce evidence of the third party’s guilt

through the deposition testimony of another party. The trial court granted the defendants’

motion in limine to bar references to the third party’s guilt contained in the deposition,

finding that they were not relevant to the elements of malicious prosecution because there

was no evidence from which to infer that the police should have suspected the third party of

the crime while they were investigating the plaintiff. Following trial, the jury returned a

verdict for certain of the defendants, finding that they had probable cause to charge the

plaintiff with the murders and that they did not act with malice.

¶ 128 On appeal, the plaintiff argued that the trial court erred in barring evidence of the third

party’s guilt. The plaintiff first asserted that the evidence was relevant to whether the

-26-

proceedings against him were terminated in a manner indicative of his innocence, an element

the defendants had conceded. The appellate court held that the trial court did not err in

excluding the evidence, noting that the trial court had allowed the plaintiff to publish to the

jury the pardon he received from the Governor and had allowed him to tell the jury that the

pardon was based on a finding of innocence. Porter, 393 Ill. App. 3d at 864. Addressing the

plaintiff’s second argument, that the evidence of the third party’s guilt should have been

admitted to support his theory of malice, the appellate court held that there was no evidence

of a link between the third party’s guilt and the plaintiff’s theory that the police investigation

was corrupt. Id. at 867. The party who gave the deposition was the only person who knew

of the third party’s involvement, and she withheld her knowledge from the police. Id. The

court noted that, unlike the evidence of coerced confessions in Aguirre, there was no link in

Porter between the third party’s guilt and the plaintiff’s theory that the police investigation

was corrupt. Id. The court noted that later-discovered evidence is relevant to a malicious-

prosecution claim only where there was a coerced confession (i.e., like in Aguirre, “where

the recanted testimony is more reliable than the confessions”). Id.12

¶ 129 Here, plaintiff argues that both Aguirre and Porter instruct that evidence that

demonstrates police fabrication of a confession is admissible. Plaintiff concedes that the

three-plaintiff scenario in Aguirre allowed the inference of fabrication to be easily drawn, but

he maintains that neither that case nor Porter indicates that a “real” killer’s subsequently

obtained confession can support an inference of fabrication (and thus malice) in only the

limited situation of multiple plaintiffs. He argues that, here, the jury ought to have decided

whether to draw an inference of fabrication from the fact that plaintiff’s alleged confession

was inaccurate. Without the Outlaw evidence, the jury had no opportunity to evaluate how

inaccurate plaintiff’s confession was and, therefore, had no opportunity to infer malice from

police fabrication. Plaintiff also attempts to distinguish Porter by arguing that the malice

theory in that case was different from that in the present suit. According to plaintiff, unlike

in Porter, he never argued that defendants initiated criminal proceedings against him

maliciously because they had reason to suspect that Miller and Schneider had committed the

crimes. Rather, he concedes that, when they were interrogating him, there was no evidence

that defendants were aware of Miller’s and Schneider’s involvement. Plaintiff maintains that

the Outlaw evidence was relevant to his claim because, as in Aguirre, it would have allowed

the jury to infer that the police engaged in wrongdoing and fabricated a confession, and he

maintains that Porter held that such evidence was admissible.

¶ 130 Defendants respond that the details of how Miller and Schneider carried out the murders

would not have assisted the jury in evaluating whether defendants coerced statements from

plaintiff and then withheld that the statements were couched in hypothetical terms or whether

plaintiff voluntarily gave the statements. Defendants contend that the Outlaw evidence had

no bearing on whether plaintiff’s statements were voluntary or whether they were couched

in hypothetical terms and, therefore, the evidence was properly excluded under Porter. In

12

The Porter court, addressing the reliability of the third party’s confession and “guilt,” took

judicial notice of the fact that he had subsequently recanted his confession. Id.

-27-

their view, the trial court granted plaintiff more latitude than was given in Porter when it

permitted evidence that Miller and Schneider were apprehended in 1997, conveying, in

defendants’ view, the “false impression” that everyone in the courtroom agreed that plaintiff

had nothing to do with his parents’ murders. Given this “advantage,” they urge that plaintiff

should not have been permitted to present all of the details of the actual murders.

¶ 131 Defendants read Porter to hold that, where there is a stipulation of actual innocence, the

actual killer’s confession is admissible only if it demonstrates police misconduct through

either fabricating confessions or ignoring other known suspects. Defendants argue that the

Outlaw evidence does not suggest that defendants acted with malice, lacked a reasonable

belief that plaintiff committed the murders, or falsified information concerning the crimes.

Nor was there any evidence that defendants ignored evidence implicating Schneider and

Miller or anyone else when they charged plaintiff. Further, defendants argue that the Outlaw

evidence would have confused the jury and potentially led it to incorrectly infer that the later-

discovered confession had something to do with whether there was probable cause. They also

note that the admission of the Outlaw evidence would have triggered defendants’ right to

introduce the Ignasiak evidence, which would have distracted the jury and ventured into a

“mini-trial” on plaintiff’s involvement in the murders.

¶ 132 We reject plaintiff’s claim that the Outlaw evidence was erroneously excluded. Both

Porter and Aguirre are of limited value to our analysis. The Porter court upheld the

exclusion of evidence of the third party’s guilt. Porter, 393 Ill. App. 3d at 866-67. As to

malice, the court held that, where there was no evidence of a link between the third party’s

guilt and the plaintiff’s theory that the investigation was corrupt, evidence of the third party’s

guilt was properly excluded. Id. at 867. The deposed party withheld from police her

knowledge of the third party’s involvement. Id. Here, plaintiff concedes that, at the time of

his interrogation, defendants were unaware of Miller’s and Schneider’s involvement in his

parents’ murders. Miller’s and Schneider’s involvement in the murders came to light in 1995;

defendants charged plaintiff with the murders in 1993. Thus, in our view, Porter does

nothing to support plaintiff’s argument that the Outlaw evidence should have been admitted,

because there was no evidence here of a link, from which malice may be inferred, between

the real killers’ guilt and plaintiff’s theory that defendants fabricated his confession.

¶ 133 In Aguirre, the court upheld the admission of the real killer’s testimony because that

evidence worked in concert with other evidence to show that the plaintiffs’ confessions were

false and to imply malice. Aguirre, 382 Ill. App. 3d at 99. The other evidence included the

fact that the three plaintiffs (who gave substantially similar versions of the events) were held

in detention and could not have communicated with each other before the State filed charges.

Id. Aguirre is distinguishable in two respects. First, there were three plaintiffs who gave

essentially the same version of the events, which was ultimately contradicted by the

evidence, whereas, here, there is only one plaintiff. Second and more significantly, unlike in

Aguirre, the jury here heard evidence concerning alleged police prompting. In this respect,

plaintiff’s assertion that the details that only the actual killers knew were important and

supported his theory that defendants manufactured his statements fails. Plaintiff provides

several examples where, he alleges, defendants “prompted” him to fill in gaps in his version

of the events. First, after plaintiff described cutting Ruth’s throat (a detail he could provide

-28-

because he had been told of it), he began describing how he walked away from her body and

toward the shop. According to defendants, however, they stopped plaintiff and asked him

whether he had covered his mother with blankets or whether he remembered doing anything

to the trailer door. Plaintiff contends that he then attempted to include in his hypothetical

account how he covered his mother with blankets. Where he had not been prompted with

details, such as the padlock on the trailer door, he did not mention those details. We reject

plaintiff’s argument because, as defendants note, police reports fully disclosed that the police

advised plaintiff of these facts. Further, key details, such as the repeated slashings, head

trauma, and side stabbing were presented by Dr. Blum.

¶ 134 Finally, even if introduction of the details of how Miller and Schneider committed the

murders might have supported plaintiff’s claim that neither he nor the police knew those

details and, thus, might have led to an inference that his confession was the product of police

suggestion, we conclude that plaintiff suffered no prejudice in light of the evidence that was

presented in the present suit, most significantly: (1) the stipulation that plaintiff’s criminal

case terminated in his favor, that he was pardoned based on his innocence, and that the killers

were apprehended; and (2) Dr. Blum’s testimony.

¶ 135 2. Discovery of “Real Killers” Evidence

¶ 136 Plaintiff next argues that the exclusion of evidence of how and by whom the “real killers”

were discovered prevented him from demonstrating malice and left the jury to infer that

defendants themselves played some role in plaintiff’s exoneration. Plaintiff maintains that

he was prejudiced by this exclusion. We reject plaintiff’s claim.

¶ 137 The evidence of Schneider’s and Miller’s involvement, which federal authorities received

while investigating other crimes, was critical, in plaintiff’s view, to allow the jury to infer

that, if defendants were not the ones who ultimately apprehended the “real killers,” it was

more likely than not that they acted with malice by making plaintiff out to be the murderer.

Plaintiff argues that the jury should have had a full picture in front of it to assess malice. He

asserts that, without the Outlaw evidence, the jury likely inferred that plaintiff was pardoned

based on defendants’ continuing investigation and that, if they continued their investigation

and ultimately sought out the truth, they must not have acted with malice during the

interrogation and when they charged plaintiff. Plaintiff argues that he should have been

allowed to rebut this inference.

¶ 138 We disagree with plaintiff that there was a reasonable likelihood that the jury inferred

that defendants played a role in plaintiff’s exoneration. As defendants note, none of the trial

evidence suggested that defendants played such a role, and the trial court generally limited

the testimony to the interrogation period. Furthermore, plaintiff’s assertion is speculative. It

is equally, if not more, likely that the jury, if it inferred anything on this issue, inferred that

a witness came forward with relevant evidence. In other words, the lack of evidence that

defendants played no role does not necessarily lead only to the conclusion that defendants

continued to investigate until they exonerated plaintiff. In any case, we cannot conclude that

the trial court’s ruling was unreasonable or an abuse of discretion. Throughout the

proceedings the court commented that it was attempting to avoid a “mini-trial” concerning

-29-

plaintiff’s potential involvement in the murders (i.e., referring to Ignasiak’s statement that

plaintiff contracted with Miller to have his parents murdered). In this context, the court

reasonably excluded the Outlaw evidence.

¶ 139 D. Jury Instruction

¶ 140 Plaintiff’s final argument is that the trial court erred in giving the jury instruction on

malice. He concedes that he failed to preserve this issue for review and asks that we address

it only if we remand the cause for a new trial. Given that we are not remanding the cause for

a new trial, because we have rejected plaintiff’s claims concerning the evidentiary rulings,

we need not address this argument.

¶ 141 III. CONCLUSION

¶ 142 For the foregoing reasons, the judgment of the circuit court of McHenry County is

affirmed.

¶ 143 Affirmed.

-30-