Gary L. Smith of the Journal Star
HENNEPIN — The wife of Putnam County murder suspect Clifford A. Andersen Jr. can be called to testify against him in the case alleging he murdered the woman’s sister about 18 months ago and buried her in manure in a shallow grave.
But whether that testimony can specifically refer to an alleged lie he told her about horseback riding the day he allegedly buried his sister-in-law was left undecided for now in Circuit Judge Stephen Kouri’s ruling on arguments taken under advisement at a hearing last month.
Andersen, 68, of Standard allegedly beat Deborah Dewey of Ladd to death for unstated motives on about Aug. 22, 2016, and then buried her Sept. 7 outside a vacant Standard home to which he had access as a caretaker. He’s charged with first-degree murder and concealment of a homicidal death.
Diane Andersen’s testimony became an issue largely because of a text in which she told another sister that the defendant had been out searching for Dewey on horseback with another man that day. Prosecutors say she also told relatives that he “smelled like manure” that day, though she has testified that she does not remember making such a statement.
“He hasn’t been on a horse in 40 years plus the heat and the humidity. He looked like hell when he came home,” the text stated in part.
State’s Attorney Christina Mennie and co-prosecutor Bill Elward of the Illinois Attorney General’s Office maintain that Andersen lied about his whereabouts and activities, and they want Diane Andersen to testify to that effect. Defense attorneys Drew and Rob Parker countered that the state’s theory that Andersen lied should not be grounds for an exception to the general rule that spousal communication is privileged.
“(The prosecution argument) is all based on supposition and speculation,” Rob Parker argued. “There’s a baseline presumption that everything (between spouses) is confidential. ... For them to suppose intent of some kind is quite a leap.”
Kouri found that legal principles and precedent support the prosecution request, because the spousal privilege is based on truthfulness in the “special trust and affection” between a couple. But that does not apply if there is “active concealment of a nefarious undertaking,” he observed in a quote from one case.
“Confidentiality is assumed, but the assumption is not necessarily conclusive,” Kouri wrote. “Circumstances may suggest it was not intended to be confidential.”
But while a lie by Andersen would therefore be exempt from the privilege, Kouri repeated the observation he made during the hearing that the defendant’s purported statement has not been proven false. And though prosecutors asserted that the other man cited by Andersen had told police that he had not gone horseback riding that day — or even seen the defendant in 25 years — there was no testimony or other evidence of that, the judge noted.
“The deficiency in the state’s argument and motion is that it failed to produce formal evidence for the court to consider as to the purported misrepresentation by the defendant as to (the other man’s) involvement, nor was there formal evidence presented that (the other man) claims he did not go horseback riding.” Kouri wrote.
Kouri said he would consider any such evidence before the trial or outside the presence of a jury but would leave that part of the issue undecided until then. Separately, he held that Diane Andersen’s observations about her husband’s appearance would be admissible, which defense attorneys have not disputed.
“As to the portion of the alleged statements that relates horseback riding and the involvement of (the other man) or lack thereof, the court reserves ruling,” he concluded.
The trial is scheduled for May 8, with another pretrial hearing set for March 15. Andersen is being held in the Peoria County Jail in lieu of $1.5 million bond.
Gary L. Smith can be reached at (800) 516-0389 or email@example.com. Follow him on Twitter @Glsmithx.
Source : http://www.pjstar.com/news/20180222/putnam-murder-defendants-wife-can-testify---on-at-least-some-things