Illinois Official Reports
Appellate Court
People v. Mendiola, 2014 IL App (4th) 130542
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption JUAN MENDIOLA, Defendant-Appellee.
District & No. Fourth District
Docket No. 4-13-0542
Filed March 4, 2014
Held In a prosecution for aggravated criminal sexual abuse and predatory
(Note: This syllabus criminal sexual assault of a child where the State’s motion in limine
constitutes no part of the seeking admission of a recorded telephone call between defendant and
opinion of the court but the victims’ mother allegedly showing defendant’s consciousness of
has been prepared by the guilt was denied following a hearing conducted during an intermission
Reporter of Decisions in the voir dire proceedings, and defendant was eventually acquitted
for the convenience of of four counts and a mistrial was declared as to one of the sexual abuse
the reader.) counts, the State’s appeal from the subsequent denial of a second
motion in limine refiled just before defendant was retried on the
remaining sexual abuse count and seeking the same relief was
dismissed for lack of jurisdiction, since the State’s failure to seek
appellate review of the denial of its first motion in limine and decision
to proceed with the first trial resulted in the forfeiture of its right under
Supreme Court Rule 604(a) to appeal the denial of the refiled motion
in limine.
Decision Under Appeal from the Circuit Court of McLean County, No. 12-CF-646; the
Review Hon. Scott Drazewski, Judge, presiding.
Judgment Dismissed.
Counsel on Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
Appeal David J. Robinson, and Anastacia R. Brooks, all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Michael J. Pelletier, Karen Munoz, and Colleen Morgan, all of State
Appellate Defender’s Office, of Springfield, for appellee.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Pope and Turner concurred in the judgment and opinion.
OPINION
¶1 In July 2012, the State charged defendant, Juan Mendiola, with (1) four counts of
aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2012)) and (2) one count
of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)).
¶2 During a February 11, 2013, hearing, the trial court considered and denied the State’s
motion in limine, which sought the admission of a telephone call recording that defendant
made from jail to Lisa K. (Lisa), the mother of the two minor victims the State alleged
defendant abused. Two days later, the court denied the State’s motion to reconsider. The jury
later acquitted defendant on four of the five charges, but could not reach a verdict on one count
of aggravated criminal sexual abuse. The court declared a mistrial on that remaining count.
¶3 In March 2013–prior to a second trial on the remaining count of aggravated criminal sexual
abuse–the State filed a second motion in limine, which sought to introduce the same recording.
In June 2013, the trial court entered a written order, denying the State’s motion in limine,
reiterating the rationale the court stated in its earlier denial.
¶4 The State appeals, arguing that the trial court abused its discretion by denying the State’s
March 2013 motion in limine. Because we conclude that this court lacks jurisdiction, we
dismiss the State’s appeal.
¶5 I. BACKGROUND
¶6 A. The State’s Charges
¶7 In July 2012, the State charged defendant with four counts of aggravated criminal sexual
abuse, alleging that defendant (1) pulled A.P. (born October 30, 1998) on top of him and
simulated a sex act (count I), (2) put his hands down A.P.’s pants (counts II and IV), and (3)
penetrated A.P.’s vagina with his finger (count III). The State also charged defendant with one
count of predatory criminal sexual assault in that he put his hands down the pants of S.P. (born
November 29, 2002) (count V).
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¶8 B. The Trial Court’s Rulings
¶9 On Monday, February 11, 2013, the State filed a motion in limine, seeking a ruling on the
admissibility of a January 13, 2013, recorded conversation in which defendant called Lisa from
jail. The State explained that it learned about the recording on the previous Thursday and
listened to its content the following day. Noting that (1) the State had not provided a transcript
of the recorded conversation and (2) voir dire of prospective jurors was scheduled for that
morning, the trial court stated its intent to listen to the recording during the lunch recess.
Immediately thereafter, voir dire of prospective jurors began.
¶ 10 After the lunch recess, the trial court informed the parties that it had listened to the recorded
conversation. The court then conducted a hearing on the State’s motion in limine, which
occurred prior to empanelling a jury. A summary of that conversation showed that defendant
began by informing Lisa that (1) he did not have a guilty plea offer from the State and (2) his
life was in her hands. Defendant told Lisa that he did not care about himself, but he was
concerned about the impact of his incarceration on his son and mother. Defendant then asked
Lisa for “some mercy.” Lisa suggested that defendant “take a deal,” stating that she would ask
the State’s Attorney to make defendant an offer. Defendant again asked Lisa to show him
“mercy.” Lisa informed defendant that he had destroyed her child and “that can never be taken
back.” Lisa vowed that defendant would spend some time in prison.
¶ 11 In support of its motion in limine, the State argued that (1) the recording was admissible
because it showed defendant’s consciousness of guilt and (2) defendant made statements
against his interest. Defendant argued that the recording concerned issues surrounding
guilty-plea negotiations, which were not admissible. After considering counsel’s respective
arguments, the trial court found, as follows:
“[As the court] indicated, *** [the recording] does have some probative value. ***
[T]here could be an inference made *** in the manner in which the State has described
it. [T]here’s also *** a concern *** with respect to the prejudicial impact to bring in
[the statements] the jury ought not and should not hear about, such as plea deals, plea
negotiations, punishment[;] things that are not their concern. ***
And that’s why these statements *** aren’t coming in. They are not inculpatory
statements. They are statements basically seeking mercy, seeking help, assistance by
[Lisa] to work whatever influence she may have with the State’s Attorney *** to obtain
the best possible deal that could be considered. [Defendant] never said that he
committed the offense. [Defendant] never said that he would take the deal. So, again,
[these statements are] fraught with all kinds of problems, which is why [the court finds]
that the probative value is outweighed by the prejudicial effect.”
Following the court’s denial of the State’s motion in limine, voir dire resumed. Later that
afternoon, the court empanelled a jury and adjourned for the day.
¶ 12 Two days later, on February 13, 2013, the trial court conducted a hearing, outside of the
jury’s presence, to hear arguments on the State’s written motion to reconsider, which it
tendered to the court that morning. The State sought to clarify what it acknowledged were
confusing arguments it made in support of its motion in limine. The State then addressed the
underlying rationale for the court’s denial–that is, the prejudice and absence of a threat from
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defendant. Defendant again argued that the recording was more prejudicial than probative due
to the numerous discussions concerning guilty-plea offers. The court denied the State’s motion
to reconsider, adhering to the rationale underlying its earlier denial. Immediately thereafter, the
parties made their respective opening statements to the jury.
¶ 13 C. The Defendant’s Jury Trial
¶ 14 During trial, the State renewed its request to admit the recorded telephone conversation
defendant had with Lisa, claiming that defense counsel “opened the door” by repeatedly asking
Lisa whether she gave defendant an opportunity to tell his side of the story. The trial court
rejected the State’s request on relevancy grounds.
¶ 15 Following the presentation of evidence and argument, the jury acquitted defendant on
counts I, II, III, and V, but could not reach a verdict on count IV. The trial court then declared
a mistrial as to count IV.
¶ 16 D. The Trial Court’s Pretrial Rulings Before Defendant’s Second Trial
¶ 17 In March 2013–prior to defendant’s second trial on the remaining count of aggravated
criminal sexual abuse–the State filed a second motion in limine, seeking to introduce the same
recording of defendant’s telephone call to Lisa.
¶ 18 In a June 2013 written order, the trial court denied the State’s second motion in limine,
finding that the recorded conversations between defendant and Lisa were not admissible
because they (1) amounted to a guilty-plea negotiation, (2) were more prejudicial than
probative, and (3) were not admissible as consciousness of guilt evidence.
¶ 19 This appeal followed.
¶ 20 II. THIS COURT’S JURISDICTION
¶ 21 The State argues that the trial court abused its discretion by denying its March 2013 motion
in limine. However, prior to addressing the merits of the State’s argument, we must first
determine whether this court has jurisdiction. See People v. Smith, 228 Ill. 2d 95, 106, 885
N.E.2d 1053, 1059 (2008) (determining its jurisdiction and whether an issue has been forfeited
are the “two most important tasks of an appellate court panel when beginning the review of a
case”); People v. Blalock, 2012 IL App (4th) 110041, ¶ 5, 976 N.E.2d 643 (before addressing
the merits of an appeal, the appellate court first has a duty to determine whether it has
jurisdiction).
¶ 22 Illinois Supreme Court Rule 604(a)(1) (eff. Feb. 6, 2013) provides as follows:
“When State May Appeal. In criminal cases the State may appeal only from an order or
judgment the substantive effect of which results in dismissing a charge for any of the
grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963 [(the
Code) (725 ILCS 5/114-1 (West 2012))]; arresting judgment because of a defective
indictment, information[,] or complaint; quashing an arrest or search warrant; or
suppressing evidence.”
¶ 23 Illinois Supreme Court Rule 606(b) (eff. Feb. 6, 2013) provides as follows:
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“Except as provided in Rule 604(d), the notice of appeal must be filed with the clerk of
the circuit court within 30 days after the entry of the final judgment appealed from or if
a motion directed against the judgment is timely filed, within 30 days after the entry of
the order disposing of the motion.”
The time constraints mandated by Rule 606(b) apply to the State. See People v. Bridgewater,
235 Ill. 2d 85, 90-91, 918 N.E.2d 553, 555-56 (2009); see also People v. Marker, 233 Ill. 2d
158, 163-67, 908 N.E.2d 16, 19-22 (2009).
¶ 24 Our jurisdictional question arises from the trial court’s February 2013 denial of the State’s
motion in limine. The State never appealed that denial. Instead, after defendant’s jury trial
ended with four acquittals and the court declaring a mistrial on the remaining count, the State
(1) recharged defendant with the remaining count and (2) filed a second motion in limine,
seeking admission of the same recorded evidence that the court had previously denied. It is the
court’s June 2013 denial of the second motion in limine that the State is seeking to have this
court review on appeal. However, we must first determine whether the State’s failure to appeal
the court’s denial of the State’s February 2013 motion in limine deprives this court of
jurisdiction. We conclude that it does.
¶ 25 Defendant contends that the principle of collateral estoppel bars consideration of the
State’s March 2013 motion in limine because prior to his February 2013 jury trial, the trial
court had already barred the evidence the State now seeks to readmit. Citing People v. Baker,
177 Ill. App. 3d 342, 346, 532 N.E.2d 306, 308 (1988), defendant also contends that the court’s
pretrial denial of the State’s motion in limine “fairly and completely resolved” the issue. The
State could have appealed that denial but failed to do so. See People v. Hatfield, 161 Ill. App.
3d 401, 405, 514 N.E.2d 572, 574 (1987) (“ ‘Rule 604(a)(1) allows an interlocutory appeal by
the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that
the suppression substantially impairs the State’s ability to prosecute the case.’ ” (quoting
People v. Young, 82 Ill. 2d 234, 247, 412 N.E.2d 501, 507 (1980))).
¶ 26 In response, the State argues that the record does not support defendant’s claim that the
trial court’s denial was a pretrial ruling. Specifically, the State contends that because
defendant’s trial had already begun when the court denied its motion in limine, the State could
appeal only under the provisions of section 114-12(c) of the Code (725 ILCS 5/114-12(c)
(West 2012)), which governs motions to suppress illegally seized evidence. Thus, the State
asserts that because the court’s denial occurred during trial and did not concern illegally seized
evidence, it could not immediately appeal the denial of its February 2013 motion in limine.
¶ 27 We need not address the State’s argument regarding section 114-12(c) of the Code because
the record clearly shows that when the trial court denied the State’s February 2013 motion
in limine it did so before a jury had yet to be sworn in–that is, before jeopardy had attached.
People v. Dahlberg, 355 Ill. App. 3d 308, 312, 823 N.E.2d 649, 653 (2005). Thus, we reject the
State’s underlying premise that the court’s denial occurred during trial. See People v. Nelson,
377 Ill. App. 3d 1031, 1037, 880 N.E.2d 1096, 1101 (2007) (“ ‘ “An appeal *** shall lie ***
from a decision or order *** suppressing or excluding evidence *** in a criminal proceeding,
not made after the defendant has been put in jeopardy ***.” ’ ” (Emphasis in original.)
(quoting Young, 82 Ill. 2d at 248, 412 N.E.2d at 508, quoting 18 U.S.C. § 3731 (1976))).
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¶ 28 The present case does not involve a suppression order. Instead, this case concerns the trial
court’s denial of the State’s motion in limine seeking a pretrial ruling that certain evidence–that
is, the recording of defendant’s telephone call to Lisa–was admissible. In People v. Owen, 299
Ill. App. 3d 818, 822, 701 N.E.2d 1174, 1177-78 (1998), this court noted that although parties
frequently use motions in limine to bar or limit the scope of evidence, the State may also use
such motions, as in the present case, to obtain a ruling authorizing the use of certain evidence
during trial. (We note that the supreme court made clear in People v. Drum, 194 Ill. 2d 485,
491, 743 N.E.2d 44, 47 (2000), that for purposes of Rule 604(a)(1), “there is no substantive
distinction between evidence that is ‘excluded’ and evidence that is ‘suppressed.’ ”) Because a
motion in limine requires a court to consider offers of proof out of the normal trial context
either in the form of live testimony or counsel’s representations, a court has the discretion to
choose not to hear the motion in limine, and instead, address the evidentiary issue when the
matter becomes ripe at trial and the context is no longer in doubt. Owen, 299 Ill. App. 3d at
823, 701 N.E.2d at 1178. Although the State proffered its motion in limine on the morning
before jury selection commenced, the court chose to consider the State’s motion instead of
deferring the matter.
¶ 29 In Nelson, 377 Ill. App. 3d at 1039, 880 N.E.2d at 1103, the First District addressed the
following issue, which was substantially similar to the facts before us in this case:
“The State requested the grant of use immunity to [certain witnesses] after the jury had
been selected and immediately before trial. When the trial court denied the State’s
motions, the State took no action and proceeded to trial. Only after the jury was unable
to reach a verdict and a mistrial declared did the State seek review. The State fails to
cite a case *** in which a reviewing court has allowed the State to seek a posttrial
appeal of a pretrial order, nor does our research disclose any such case.”
¶ 30 The Nelson court then provided the following analysis:
“When the State opted to prosecute the case, it essentially took a chance on whether
defendant would be convicted without [the suppressed] testimony. If defendant was
found guilty, then the State would have succeeded in its prosecution. If defendant had
been acquitted, then no appeal could be brought by the State. The fact that the trial
ended in a mistrial should not give the State the right to appeal an order it would have
been foreclosed to raise had there been any other result. The State forfeited its right to
appeal based on the supposed substantial impairment of its case when it decided to
prosecute defendant.” Id.
¶ 31 Here, after the trial court denied the State’s initial motion in limine, the State chose to
proceed to trial instead of seeking appellate review by timely filing a certificate of impairment.
No doubt the State hoped that the jury would return guilty verdicts on the counts charged, but
instead the jury acquitted defendant on four counts and was unable to reach a verdict on the
fifth count. Thus, in accord with Nelson, the State forfeited its right under Rule 604(a) to
appeal the court’s order denying the State’s motion in limine.
¶ 32 III. CONCLUSION
¶ 33 For the foregoing reasons, we dismiss the State’s appeal.
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¶ 34 Dismissed.
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