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STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT

COUNTY OF WINNEBAGO

THE PEOPLE OF THE

STATE OF ILLINOIS,

Plaintiff, No. 2014-CF-922

V.
RULINGS ON DEFENDANT’S
RICHARD E. WANKE, MOTION TO DISMISS &
PEOPLE’S MOTIONS
Defendant. IN LIMINE
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14 REPORT OF PROCEEDINGS at the Hearing

15 of the above—entitled cause before the Honorable

16 Rosemary Collins, Judge of said Court, on the 7th

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

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 APPEARANCES:

MS. MARILYN HITE ROSS,

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

on behalf of the People.

MR. NICHOLAS ZIMMERMAN and

MR. ROBERT SIMMONS,
Assistant Public Defenders,

on behalf of the Defendant.

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 THE COURT: All right. We’re on the record

on People v. Wanke. Would the parties state their

name and who they represent.

MS. HITE ROSS: Marilyn Hite Ross for the

People, Your Honor.

MR. BRUN: Jim Brun for the People.

MS. WELLS: Pamela Wells for the People,

Your Honor.

MR. ZIMMERMAN: Afternoon, Judge. Nick

10 Zimmerman and Rob Simmons on behalf of Mr. Wanke who

11 is present and in custody.

12 THE COURT: Mr. Wanke, are you able to hear

13 these proceedings?

14 THE DEFENDANT: Yes, ma’am.

15 THE COURT: All right. We have a few

16 matters that we can take care of. I unfortunately

17 have another conference call that I have to be at for

18 a grant that I have. But I think we can get some

19 things done. So I am going to go through what I am

20 able to —— to get through in the limited time that I

21 have available.

22 So, first of all, I’d like to make my ruling on

23 the motion to dismiss that the defense filed for

24 pre—indictment delay. The court has read over the

 motions and the People's response, and I am prepared

to rule on that at this time. Let me just get my

notes in order.

Okay. So in the motion, the parties ~— both

parties agree that Mr. Clark was murdered on February

6th of 2008. The defendant was indicted for the

murder of Mr. Clark in 2014. The defense has filed

a motion to dismiss for pre—indictment delay as the

defendant had not been indicted until a substantial

10 period of time after the death of Mr. Clark.

11 Mr. Clark (sic) had been in custody since

12 February of 2008. But Mr. Clark —~ Sorry. Mr.

13 Wanke was in custody since 2008. But Mr. Wanke was

14 in custody on a separate case.

15 So, of course, there are issues that are raised

16 anytime there is a delay in the indictment, and the

17 court must consider those issues. Both parties have

18 stated the law that really applies to —— to this.

19 The court must complete a two—part analysis where

20 there's been a delay between the alleged crime and

21 indictment or arrest of the —— or accusation. The

22 defendant must come forward with a clear showing of

23 actual and substantial prejudice. The F— if the

24 accused satisfies the court of actual prejudice

 then —— or substantially prejudiced by the delay then

the burden shifts to the State to show the

reasonableness or necessity of the delay.

In this case the defendant makes the assertion

that he may have had two alibi witnesses, two nine

year olds who may have been alibi witnesses for him

who have now been interviewed and have no

recollection. The courts have dealt with this

specifically, and the courts have said that mere

10 assertion of inability to recall is insufficient. So

11 the mere allegation that witnesses may not recall is

12 insufficient under the law to shift the burden to the

l3 State to show that the delay was reasonable and

14 necessary.

15 The court has reviewed all the cases on this

16 issue, and the court finds that this defense has not

1'7 met their burden. That the allegation that two

18 witnesses cannot recall has not shifted the burden.

19 It is the mere assertion of their inability to

20 recall. And, therefore, the court finds that they

21 have not shifted the burden to the State and have not

22 demonstrated actual and substantial prejudice.

23 So the court is going to deny the defense motion

24 to dismiss for pre—indictment delay.

 Secondly, the other issue that the court can

rule on is the defense motion for a juror

questionnaire. Frankly, I think that motion is —— is

well placed. And the court will consider a jury

questionnaire in this case. The jury questionnaire

that was submitted by the defense is not the one that

I am going to use. It's a working template, and the

court will certainly consider it. But we’re gonna

have to, I think, come up with another

10 questionnaire. Because there were some questions on

11 that questionnaire that was submitted by the defense

12 that I would not think were appropriate to ask. And

13 so I do think it's a good idea to have a jury

14 questionnaire.

15 I did, in fact, speak to the jury commissioner

16 about jury questionnaires. They have done them in

17 the past. And so we will be able to do them in this

18 case also. We’ll have to consider the process and

19 procedure that we’re going to do on this jury

20 questionnaire. And so we need to start working on

21 that to get that questionnaire completed as quickly

22 as we can. So the procedure that this court believes

23 that it would implement is that once our jury

24 questionnaire is formulated, and I don’t think we're

 far from a formulation, frankly, but once the jury

questionnaire is formulated then the date we do bring

in the voir dire panel, the court will instruct them

with my general instructions about the

confidentiality of the proceedings, how they must not

view any press or media coverage of the event, that

they can’t do any independent research about this

matter, and then we will have them fill out the

questionnaire and then we will do the interview ——

10 the voir dire and interview of the jurors.

11 So it will take a little more time at the

12 beginning of the trial because we’re -— I am not

13 going to send out the questionnaire prior to them

14 coming in. They will come in and then they will

15 receive the questionnaire. But the questionnaire

16 that I’ve gone over that the defense admitted, it is

17 not unburdensome. I think they should be able to

18 fill it out fairly quickly. But it is a little

19 lengthy now and does ask questions that I don’t think

20 are relevant. So we’ll go over that.

21 So I am putting the State on notice now to take

22 a look at proposed questionnaire and to submit what

23 you think... I know you've submitted voir dire

24 questions. But I want you to look at it in terms of

 a jury questionnaire form. So they are not

necessarily questions that -— that —— for voir dire.

Because you may ask them questions that I am going to

allow you to ask in addition to the court —— the

questionnaire. But the questionnaire would get some

information that we need to have prior to them being

called and going through voir dire.

I don’t know if that’s clear.

MS. HITE ROSS: Your Honor, did you say the

10 court had some templates that you wanted us to look

ll at along with defense’s?

12 THE COURT: I asked the jury commissioner

13 for templates. I don’t have any from them. But I

14 did review the defense proposed jury questionnaire

15 that they submitted. So you should have that.

16 MS. HITE ROSS: We would be available, YOur

17 Honor, to meet with the defense to try to come up

18 with a consensus on the questionnaire in the

19 interim.

20 THE COURT: Defense?

21 MR. ZIMMERMAN: That's fine with us. I

22 think it would probably be helpful if the court not

23 necessarily today but at some point flagged the

24 questions that you thought were a concern or overly

 burdensome. That way the State and I aren't

rehashing those only to find out that the court

doesn't wish to ask those.

THE COURT: I think you will probably know

once you go over it. Let me see if I have it in

front of me. As I recall, some of the questions were

about hobbies of family members and things of that

nature. And we don’t need to get that far afield,

you know, from the issues at hand. So similar to the

10 kind of questions that the court wouldn't allow in

11 voir dire, that would be what I don't want on the

12 questionnaire. The questionnaire should be fairly

13 limited I think to the items contained in the first

14 part of your questionnaire. But once it goes too far

15 afield about family members or hobbies of family

16 members or things of that nature then —— then that is

17 no longer appropriate questions for a jury

18 questionnaire.

19 I do think we should ask a question of them if

2O they have or recognize the name of either Mr. Wanke

21 or Mr. Clark. And that was a question that was in

22 your proposed questionnaire, and I do think it is

23 appropriate that we ask them. There was also

24 questions if they've heard anything about the case

 and, if so, what. And that’s what we need —— that's

what we need for them to relay to us outside of the

presence of anyone else. And they can do that in a

questionnaire.

Okay? All right. So I’ll let you look at

that.

I do want to notify —— The State

inadvertently —a The State did give me a packet of

cases for me to review. I have reviewed them.

10 Somehow you gave me five packets of the same cases.

11 Actually... Yeah, five packets. So I’ve reviewed a

12 packet but then these other packets that you gave me

13 are identical in every way. They are the same

14 cases. I don’t know how that happened. I think it

15 was on this case. But I am not really sure. They

16 were in the file. So I am going to give them back to

17 you.

18 MS. HITE ROSS: Okay. Thank you, Judge.

19 THE COURT: And -- I don’t think —— I

20 don’t think I need them. I know I don’t need them.

21 Okay. With respect to the motions in limine,

22 I've gone through a few of them. And so the court is

23 prepared to start the process of rulings on a few of

24 them.

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 The defendant’s —— the plaintiff’s, sorry,

motion in limine #9 which we’d briefly referred to

before, is regarding the veracity of officers during

voir dire. The court is going to grant the motion in

limine regarding... And I know we talked about this

at our previous hearing on motions in limine. But

the court’s going to grant this with respect to

specifying any particular occupation or

categorization of a potential witness as someone who

10 may or may not lie. I think it is appropriate for

11 the attorneys to ask if they believe that if a

12 witness were called, you know, would they believe

13 they might n— they could be less than truthful or

14 something of that nature. But I won’t let anyone

15 single out anyone because of an occupation. So it’s

16 granted in that respect.

17 With respect to People's 14, this is a motion

18 regarding the defendant’s prior conviction of

19 burglary. The State has asked to use the defendant's

2O prior burglary conviction in 06-CF—405 as impeachment

21 should the defendant choose to testify. The defense

22 has objected to that. The court has applied the

23 Montgomery test, the balancing test to determine

24 whether the probative value of the conviction

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 outweighs any unfair prejudicial effect. Applying

the balancing test, and, of course, checking to make

sure that it does fall within the time period that is

allowed, the court is going to grant over the defense

objection People's 14th motion in limine, and the

defendant’s prior burglary conviction may be used as

impeachment if the defendant chooses to testify.

With respect to the People's No. 16, the court

did have one question regarding that. And... It’s in

10 my notes. With ~— with respect to 10(e), although

11 the State did attach transcripts to their —— to their

12 motion there is —— to their request, there is no

13 written motion to withdraw that the court had been

14 able to locate. And it's —— it’s my understanding

15 that there was no written motion but, rather, this

16 was an oral motion. And I just wanted to clarify

17 that. Is that correct, State?

18 MS. HITE ROSS: We thought there was...

19 THE COURT: Okay. Well, then I don’t

20 have ——

21 MS. HITE ROSS: ...a written motion.

22 THE COURT: We’ll wait then on that 10(e).

23 In —— You say in your 10(e), you say you argued a

24 motion to withdraw but you don’t say there was one

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 filed, and I didn’t see it in the documents. So if

you have it then you can give it to me.

MS. HITE ROSS: Very good, Judge. Thank

you.

THE COURT: With respect to the other

request in the 16th motion in limine, the court ——

with respect to 10(a), the court is not going to

allow the State to bring in evidence from jurors at

the trial that Mr. Clark represented the defendant

10 and to talk about their observations of the

11 defendant's behavior during those proceedings and how

12 they appeared those —— to interpret those

13 observations as being that the defendant was upset

14 and mad at Mr. Clark.

15 So the court is going to grant or deny the

16 request contained in 10(a) regarding testimony of

17 jurors about the defendant’s behavior during the

18 trial that Mr. Clark represented him on as I do not

19 think there is evidence that can link the behavior

20 that they saw of Mr. Wanke with any mental state

21 towards Mr. Clark.

22 With respect to 10(b), at this time the court’s

23 also going to deny the State’s request to admit the

24 evidence that they are asking to admit through

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 10(b). There is no information provided to the court

in their request that this information that Mr.

Henbest had came from Mr. Wanke. Rather, it’s

information that —— I assume that he received from

conversations with Mr. Clark. If I am incorrect

about that assumption, that he actually had

conversations with Mr. Wanke, that would be

different. But, otherwise, the court will not allow

the testimony that is requested to be allowed in

10 10(b) with respect to Bart Henbest, testimony about

11 Mr. Wanke's state of mind or feelings regarding the

12 representation he got from Mr. Clark.

13 With respect to 10(c), as everyone mentioned at

14 the hearing this is not really bad acts. It’s

15 testimony that I think if —— assuming the State can

16 prove, in fact, what they say they can prove should

17 be allowed. So the court will allow the State to

18 bring in evidence that is reflected in 10(c) if they

19 have that evidence.

20 With respect to 10(d), again assuming that the

21 State has witnesses that can prove up each and every

22 one of the allegations contained in there, in light

23 of the fact that ballistics testing indicate that the

24 same bullets... that Mr. Clark reported to police

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 that he smelled gunpowder, that he heard gunshots on

November 4th and that it was near his location, his

physical location at that time, that since ballistics

testing indicates that the shots fired on that date

came from the same firearm as the one recovered from

Mr. Clark's body, that that evidence is relevant.

And so the court will allow the testimony that is

requested to be brought in through 10(d) to be

brought in including the information regarding the

10 scheduling of the case. But, of course, this depends

11 on the State having the appropriate witnesses to

12 bring in that testimony.

13 And then on 10(e), we’re still waiting for that

14 motion. Have you been able to find that, Miss Wells,

15 yet?

16 MS. WELLS: I have not, Your Honor. The

17 docket entry has over 470 entries. So it is taking

18 me a minute. While you are talking I am still

19 looking.

20 THE COURT: That's fine. So we will hold

21 off on 10(e) for now.

22 And as my conference call is at 2:00 we will

23 recess for today and schedule another time and date

24 for the remaining motions in limine. And at ~- So

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 I don't know if you have time later this week, if you

have time next week. I know I could maybe do it

Monday. I know counsel’s schedule is —— Monday is

about it. I could do it Monday. I could do it other

times. I know we’re approaching the —- closely the

date, start date that we had set for the trial.

So... I could do it this Friday. I could do... You

know, you tell me what your schedules look like.

MR. ZIMMERMAN: Monday is fine with me.

10 MS. HITE ROSS: Friday is fine with the

11 State, Judge.

12 THE COURT: What about Monday? Is that

13 fine with the State?

14 MS. HITE ROSS: We’ll make it fine, Judge.

15 THE COURT: How about Monday afternoon, say

16 at 3:00?

17 MR. ZIMMERMAN: When the court was

18 suggesting Friday, were you suggesting the 9th or the

19 16th?

2O THE COURT: I was suggesting the 9th.

21 MR. ZIMMERMAN: Okay. The 9th in the

22 afternoon is fine with me.

23 THE COURT: Again I have a full afternoon.

24 But I could probably do it around 3:00. So I could

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 either do it 3:00 on Friday, September 9th or

September 12th.

MR. ZIMMERMAN: Friday is fine.

MR. BRUN: If we could have the 3:00

setting on the 12th, Your Honor.

THE COURT: Is that available to everyone?

MR. ZIMMERMAN: That's fine.

THE COURT: All right. Three o’clook then

on the 12th. I don’t think that gives you a lot of

10 time to meet to work out the jury questionnaire. But

11 if you could just coordinate your schedules maybe you

12 can set a time to do that.

13 MS. HITE ROSS: We will do that, Judge.

14 THE COURT: All right. All right. Court

15 stands adjourned. Court stands adjourned.

16 (Which were all the

17 proceedings of record in

18 the above—captioned matter

19 on this date.)

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 STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT

COUNTY OF WINNEBAGO

C-E-R-T-I—F-I—C-A—T—E

I, Kathi Anderson, CSR, an Official

Court Reporter, Seventeenth Judicial Circuit,

Counties of Boone and Winnebago, State of Illinois,

10 do hereby certify that I reported in stenotypy the

11 above—entitled cause, and that I thereafter

12 transcribed into typewriting this Report of

13 Proceedings which I hereby certify is a true and

14 correct transcript of said proceedings had before

15 the Honorable Rosemary Collins, Judge of this Court,

16 on the 7th day of September A.D., 2016.

17 IN WITNESS WHEREOF I have hereunto set

18 my hand this 10th day of August, A.D., 2017.

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22 a hi Anderson, CSR
License No. 084-002107
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