THIRD DIVISION June 26, 2019

No. 1-18-1691

In re ESTATE OF MARJORIE IVY ) Appeal from the ) Circuit Court of Deceased ) Cook County. ) (Christopher Ivy, Independent Administrator, ) ) Petitioner-Appellee, ) ) v. ) No.

) Mordechai Faskowitz, ) Honorable ) Karen O’Malley, Respondent-Appellant). ) Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.

OPINION

¶1 The issue presented in this case is whether a person charged with first degree murder of a

decedent and found not guilty by reason of insanity (NGRI) is barred by collateral estoppel from

contesting that he “intentionally and unjustifiably” caused decedent’s death under section 2-6 of

the Probate Act of 1975, commonly known as the Slayer Statute (755 ILCS 5/2-6 (West 2012)).

The Cook County probate court granted petitioner’s motion for summary judgment, ruling that

the criminal court’s NGRI finding on two counts of first degree murder acts, by way of collateral

estoppel, to establish that respondent “intentionally and unjustifiably” caused Marjorie Ivy’s

(Decedent) death, thereby prohibiting him from receiving from Decedent’s estate under the

Slayer Statute.

¶2 For the following reasons we reverse.

¶3 BACKGROUND 1-18-1691

¶4 Relevant History Antecedent the Probate Proceeding at Issue

¶5 On June 7, 2016, respondent Mordechai Faskowitz was found NGRI for the death of his

girlfriend of 32 years. The events leading up to Decedent’s death are as follows.

¶6 Throughout respondent and Decedent’s relationship, respondent suffered from

schizophrenia, which had been controlled by medication until June 2013 when respondent

stopped receiving his psychiatric medication. The pharmacy was unable to read the handwriting

on his prescription, and despite efforts by respondent and others to obtain a new prescription,

respondent was without medication until August 2013. Without his medication, respondent’s

mental health substantially deteriorated. Respondent believed he was in danger of being

murdered by skinheads, Nazis, and the Mafia because God had chosen him to help and protect

the helpless and homeless. He believed that Decedent wanted to kill him because she was the

leader of the skinheads and Satan. At one time, respondent began eating raw rats believing it

would spread a plague among evil doers. On September 12, 2013, respondent was arrested by the

Chicago Police Department after he attacked a man walking a pit bull, believing the man was a

skinhead stalking him. Respondent was placed in the psychiatric ward at MacNeal Hospital,

where he attacked two people and was considered a danger to others. Despite the danger

documented at MacNeal, on September 27, 2013, respondent was released without medication

because he told a doctor that he would not attack anyone if no one attacked him.

¶7 On October 9, 2013, respondent went to Decedent’s home with a knife that he had

brought from his residence. He entered Decedent’s home, called her a monster, threw her on the

floor, and killed her by stabbing her more than 40 times with the knife. Respondent was arrested

in connection with Decedent’s death and charged with (1) one count of first degree murder

pursuant to section 9-1(a)(1) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/9-

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1(a)(1) (West 2012)), (2) one count of first degree murder pursuant to section 9-1(a)(2) of the

Code (id. § 9-1(a)(2)), and (3) one count of concealment of a homicidal death (id. § 9-3.4(a)).

¶8 Criminal Trial

¶9 At his criminal trial, respondent asserted an insanity defense. During the trial, defense’s

expert, Dr. Roni Seltzberg, opined that, within a reasonable degree of medical and psychiatric

certainty, respondent was suffering from acute psychotic mental illness, specifically,

schizophrenia, at the time he killed Decedent, which impaired his judgment to the extent that he

was not able to appreciate the criminality of his conduct. Dr. Seltzberg testified that respondent

felt he had to kill Decedent because she was evil and trying to kill him, Orthodox Jews, homeless

people, and others and God was directing him to do this because it was the right thing to do.

¶ 10 Dr. Christina Floreani’s testimony was offered by stipulation. Dr. Floreani opined that

respondent was legally insane at the time he killed Decedent and was suffering from a mental

disease and/or defect that resulted in a substantial lack of capacity to appreciate the criminality of

his conduct. She reported that when respondent was at MacNeal in September 2013 he was very

psychotic, aggressive, delusional, and not adherent to his medication and was discharged without

any psychotropic medication. She reported that respondent told her that at the point when he

killed Decedent he “was already thinking that there were these people running around like

demons, posing as people, and [he] thought Decedent might be one of these demons.”

¶ 11 Dr. Kristin Schoenback’s testimony was also admitted by stipulation. Dr. Schoenback

opined that to a reasonable degree of psychological and scientific certainty respondent was

legally insane at the time of the offense and as a result lacked substantial capacity to appreciate

the criminality of his conduct.

¶ 12 At the conclusion of the criminal trial, respondent was found not guilty on all counts by

reason of insanity. During its ruling, the criminal trial judge made the following statements:

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“This case certainly is a tragedy. There’s no question about it. As an aside, I guess

it is not really relevant to my finding, but I sure hope someone is suing the c***

out of MacNeal Hospital. It seems like this could have been prevented. It is a

horrible tragedy *** three experts telling us that Mr. Faskowitz was insane at the

time, the system failed him, specifically, MacNeal Hospital failed him by sending

him out without any medication and thinking that, that was just fine. I do find him

not guilty by reason of insanity NGRI. *** I am finding him the same on all three

counts not guilty by reason of insanity.”

¶ 13 Procedural Posture in Probate Proceedings

¶ 14 Decedent died intestate leaving certain assets of which respondent was named beneficiary

including an individual retirement account, an annuity, two investment accounts, and the

“Mordechai Faskowitz Supplemental Care Trust.” On August 1, 2016, petitioner Christopher

Ivy, Decedent’s nephew and independent administrator of Decedent’s estate, filed a “Petition to

Disqualify Mordechai Faskowitz From Receiving Benefits Under the Slayer Statute and

Distribute Assets to Successor Beneficiaries to the Estate of Marjorie G. Ivy,” which was

subsequently amended on August 25, 2016 (Amended Petition). The Amended Petition and

related filings seek to disqualify respondent from receiving benefits from Decedent’s estate for

reasons to include the Slayer Statute (755 ILCS 5/2-6 (West 2012)) because respondent

“intentionally and unjustifiably” caused Decedent’s death. The Slayer Statute prevents a person

who intentionally and unjustifiably kills a decedent from receiving property from the decedent

through inheritance laws or otherwise and states in relevant part as follows:

“A person who intentionally and unjustifiably causes the death of another shall

not receive any property, benefit, or other interest by reason of the death, whether

as heir, legatee, beneficiary, joint tenant, survivor, appointee or in any other

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capacity and whether the property, benefit, or other interest passes pursuant to any

form of title registration, testamentary or nontestamentary instrument, intestacy,

renunciation, or any other circumstance. The property, benefit, or other interest

shall pass as if the person causing the death died before the decedent, provided

that with respect to joint tenancy property the interest possessed prior to the death

by the person causing the death shall not be diminished by the application of this

Section. A determination under this Section may be made by any court of

competent jurisdiction separate and apart from any criminal proceeding arising

from the death, provided that no such civil proceeding shall proceed to trial nor

shall the person be required to submit to discovery in such civil proceeding until

such time as any criminal proceeding has been finally determined by the trial

court or, in the event no criminal charge has been brought, prior to one year after

the date of death. A person convicted of first degree murder or second degree

murder of the decedent is conclusively presumed to have caused the death

intentionally and unjustifiably for purposes of this Section.” (Emphases added.)

Id.

¶ 15 Respondent, through his agent pursuant to power of attorney, filed an answer to the

Amended Petition on September 8, 2016.

¶ 16 On September 14, 2016, petitioner filed a reply to respondent’s answer and motion for

judgment on the pleadings pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS

5/2-615 (West 2016)) arguing that as a matter of law respondent should be deemed to have

predeceased Decedent under the Slayer Statute. Following a hearing on petitioner’s section 2-

615 motion, the trial court denied the motion, finding:

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“only where a person is convicted of murdering the decedent in the first or second

degree is it necessarily the case that he or she has also ‘intentionally and

justifiably’ [sic] caused the death of the decedent for purposes of the Slayer

Statute. [Citation.] In all other circumstances, including the instant one, a court

must make the determination on the particular facts of the case—‘separate and

apart from [the] criminal proceeding arising from the death ***.’ ”

The trial court further found that “whether Faskowitz ‘intentionally and unjustifiably’ caused the

death of Decedent remains a question of material fact that may not be resolved on the pleadings;

as such, Respondent is entitled to a hearing on the same.”

¶ 17 Thereafter, discovery was undertaken to include the deposition of Dr. Seltzberg wherein

she recounted statements made to her by respondent as follows: that he brought the knife that he

used to kill Decedent from his home and let himself into Decedent’s home; that he stabbed

Decedent repeatedly and cut her neck to make sure she was dead; that prior to the day he killed

Decedent, respondent thought about killing her; that he killed Decedent because he believed that

he received a sign from the Lord that killing Decedent was the right thing to do; that he killed

Decedent believing God wanted him to because Decedent was making his life not worth living

and because she was teaching skinheads to kill Orthodox Jews; that he killed Decedent because

he thought she was the leading skinhead and that she was trying to have him killed because he

recognized a gay rabbi; and that he believed when he heard the air conditioning go on while

killing Decedent it was a message from God that what he was doing was right and he was

basically saving the world.

¶ 18 On October 25, 2017, petitioner filed a motion for summary judgment pursuant to section

2-1005 of the Code of Civil Procedure (id. § 2-1005). A response was filed on respondent’s

behalf on December 7, 2017.

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¶ 19 On June 22, 2018, the probate court entered an order granting petitioner’s summary

judgment motion. In its order, the probate court noted that Illinois Rule of Evidence 201 (eff.

Jan. 1, 2011) allowed the court to take judicial notice of two facts. The first fact was that

respondent was charged in the prior criminal case with two counts of first degree murder

pursuant to sections 9-1(a)(1) and 9-1(a)(2) of the Criminal Code and one count of concealment

of homicide pursuant to section 9-3.4(a) of the Criminal Code. The second fact the court took

judicial notice of was the criminal trial judge’s adjudication of respondent as NGRI on all three

counts.

¶ 20 The trial court set forth the language in section 9-1(a) of the Criminal Code, which states

that:

“(a) A person who kills an individual without lawful justification commits

first degree murder if, in performing the acts which cause the death:

(1) he either intends to kill or do great bodily harm to that individual or

another, or knows that such acts will cause death to that individual or

another; or

(2) he knows that such acts create a strong probability of death or great

bodily harm to that individual or another ***.” 720 ILCS 5/9-1(a)(1), (2)

(West 2012).

¶ 21 The probate court noted that for the criminal trial judge to find respondent NGRI on each

count of first degree murder, the prosecution had to prove every element of the offenses beyond

a reasonable doubt. In finding respondent NGRI, the criminal trial judge made a determination as

to respondent’s mental state in the criminal proceeding, which the trial court concluded

constituted an adjudication sufficient to satisfy the Slayer Statute’s requirement that respondent

“intentionally and unjustifiably” caused Decedent’s death. The probate court further concluded

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that there was a final judgment on the merits in the criminal litigation to which respondent was a

party and that respondent had a full and fair opportunity to litigate all the relevant issues in the

criminal trial. Accordingly, the probate court found that collateral estoppel applied to bar

respondent from relitigating the issue of whether he intentionally and unjustifiably caused

Decedent’s death, thus preventing respondent from inheriting from Decedent’s estate under the

Slayer Statute. The probate court entered summary judgment in favor of petitioner.

¶ 22 Respondent timely appealed pursuant to Illinois Supreme Court Rule 304(b)(1) (eff. Mar.

8, 2016).

¶ 23 This appeal followed.

¶ 24 ANALYSIS

¶ 25 On appeal, respondent argues that the trial court erred in applying the doctrine of

collateral estoppel to find that a NGRI verdict against a defendant effectively creates an

irrebuttable presumption that the defendant is barred from taking as a beneficiary of a decedent

under the Slayer Statute. In support of his position, respondent argues that (1) the plain language

of the statute limits an irrebuttable presumption of intentionally and unjustifiably causing death

only to convictions of first or second degree murder, (2) the Illinois legislature did not intend for

a finding of NGRI to be an automatic bar to taking under the Slayer Statute, (3) the trial court’s

application of the doctrine of collateral estoppel was misplaced, and (4) public policy dictates

against punishing an individual found to be NGRI.

¶ 26 In response, petitioner argues that (1) the trial court correctly found respondent

intentionally and unjustifiably caused Decedent’s death, preventing him from receiving under the

Slayer Statute because (a collateral estoppel applies as a bar to relitigation of the issues of

respondent’s “intent and justification,” those issues having been resolved in the criminal trial;

(b) public policy does not prohibit application of the Slayer Statute to persons found NGRI; and

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(c) the Slayer Statute does not require a separate hearing. Petitioner further argues that (2) the

Slayer Statute should be interpreted as a per se bar against persons found NGRI from receiving

from their victims. In the alternative, petitioner argues that, (3) even if collateral estoppel does

not apply, the undisputed facts in this matter demonstrate that respondent’s actions in killing

Decedent were intentional and unjustifiable under the Slayer Statute.

¶ 27 Standard of Review

¶ 28 The parties dispute the applicable standard of review in this matter. Respondent argues

that the standard of review is de novo, while petitioner posits that a mixed standard is

appropriate. In general, the Illinois Supreme Court has stated that we review de novo the

applicability of the collateral estoppel doctrine as a question of law. In re A.W.,

(2008). However, once the trial court has determined that the threshold requirements for

collateral estoppel have been met, similar to judicial estoppel, the trial court must determine

whether to apply the doctrine and has broad discretion, particularly in cases of nonmutual

offensive collateral estoppel as was employed in this case. See Illinois Health Maintenance

Organization Guaranty Ass’n v. Department of Insurance,

(2007).

This determination requires an exercise of discretion and is reviewed for abuse of discretion.

Seymour v. Collins,

.

¶ 29 However, as our supreme court has recently stated in Seymour, “where the exercise of

that discretion results in the termination of the litigation, and that result is brought about via the

procedural mechanism of a motion for summary judgment, it follows, as well, that we review

that ruling de novo.” Id. ¶ 49. For summary judgment to apply there must be no genuine issues of

material fact, nor could a reasonable person draw divergent inferences from the undisputed facts.

Id. We construe the record strictly against the movant and liberally in favor of the nonmoving

party. Id.

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¶ 30 A Finding of NGRI on a Charge of First Degree Murder Does Not Create an

Irrebuttable Presumption Under the Slayer Statute

¶ 31 Having determined the applicable standard of review, we next turn to a potentially

determinative question on appeal—specifically, whether an adjudication of NGRI of first degree

murder creates an irrebuttable presumption under the Slayer Statute of intentionally and

unjustifiably causing death where the statute provides that a person convicted of first or second

degree murder is conclusively presumed to have caused the death intentionally and unjustifiably

and is therefore barred from receiving from the decedent. This question arises because a person

who is adjudicated NGRI, while found not guilty of the underlying charge, must have been found

by the trier of fact to have committed each element of the charged offense beyond a reasonable

doubt. 720 ILCS 5/6-2(e) (West 2012). Accordingly, where there is an adjudication of NGRI on

a charge of first degree murder, the trier of fact necessarily will have found that the defendant

committed each element of first degree murder beyond a reasonable doubt. The question for this

court is, if under the Slayer Statute a conviction of first degree murder creates an irrebuttable

presumption that the convicted person “caused the death intentionally and unjustifiably,” should

it then follow that the same irrebuttable presumption should apply to someone, not convicted but

adjudicated NGRI of first degree murder, having been found beyond a reasonable doubt to have

committed all of the elements of the crime? Guided by well-established rules of statutory

construction, we answer this question in the negative.

¶ 32 We review issues of statutory construction de novo. Landis v. Marc Realty, L.L.C.,

(2009). The fundamental rule in construing a statute is to ascertain and give effect to

the legislature’s intent.

The best indicator of the legislature’s intent is the language of the

statute, which must be accorded its plain and ordinary meaning.

A statute should be read as a

whole and construed so that no word, phrase, or section is rendered meaningless or superfluous,

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and we must not depart from the statute’s plain language by reading into it exceptions,

limitations, or conditions the legislature did not express. People v. Ellis,

(2002). When the language in the statute is clear and unambiguous, the court will apply the

statute as written without resort to extrinsic aids of statutory construction. Landis,

. We are not at liberty to enlarge the scope of a plain provision in order to more effectively

accomplish the general purpose of the statute. Berwyn Lumber Co. v. Korshak,

(1966); In re Estate of Buehnemann,

(1975).

¶ 33 As noted above, the Slayer Statute carves out only two specific instances where a person

is conclusively presumed to have caused the decedent’s death intentionally and unjustifiably and

is therefore barred from receiving from the decedent. Both instances require a conviction. The

statute states in pertinent part as follows:

“A person convicted of first degree murder or second degree murder of the

decedent is conclusively presumed to have caused the death intentionally and

unjustifiably for purposes of this Section.” (Emphasis added.) 755 ILCS 5/2-6

(West 2012).

¶ 34 Here the plain language of the Slayer Statute is clear. Only a person “convicted of first

degree murder or second degree murder of the decedent is conclusively presumed to have caused

the death intentionally and unjustifiably.” (Emphasis added.)

Undefined words in a statute

must be ascribed their ordinary and popularly understood meaning. People ex rel. Department of

Public Aid v. Smith,

(2004). “Conviction” is defined as “[t]he act or process

of judicially finding someone guilty of a crime; the state of having been proved guilty.” Black’s

Law Dictionary 408 (10th ed. 2014). In contrast our appellate court has described an NGRI

adjudication as follows:

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“Simply put, under our system of law, an NGRI verdict is, in all form and

substance, an acquittal. *** Ultimately, then, a successful insanity defense and a

guilty verdict are mutually exclusive: a defendant found to be insane at the time of

the crime’s commission cannot be ‘guilty’ because, pursuant to his mental

condition, he cannot make an effective choice regarding his behavior. [Citations.]

Therefore, without culpable responsibility, guilt cannot attach and the result is an

acquittal.” People v. Harrison,

(2006).

¶ 35 If the intention of the legislature was to have an NGRI finding act to conclusively bar an

individual from receiving from the decedent, it has not stated so. Instead, the Slayer Statute

expressly provides for a conclusive presumption of having intentionally and unjustifiably caused

death in only two instances—where a person is (1) convicted of first degree murder or

(2) convicted of second degree murder. The scope of this presumption is free from doubt, and

thus this court’s only legitimate function is to declare and enforce the statute as enacted. Berwyn,

.

¶ 36 Collateral Estoppel

¶ 37 Having concluded that an NGRI judgment is not a presumptive bar to receiving from a

decedent under the Slayer Statute, we now address the narrow question of whether the criminal

court’s finding respondent NGRI of first degree murder acts to collaterally estop him from

receiving from Decedent under the Slayer Statute. Given the criminal trial judge’s findings in

respondent’s case, we do not find the doctrine of collateral estoppel applicable here.

¶ 38 Collateral estoppel is an equitable doctrine whose purpose is to promote fairness and

judicial economy by barring relitigation of issues already resolved in earlier actions. Du Page

Forklift Service, Inc. v. Material Handling Services, Inc.,

(2001). The doctrine

applies to civil and criminal cases. People v. Scott,

(1992). The minimal

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threshold requirements for application of collateral estoppel are as follows: (1) the issue decided

in the prior adjudication is identical to the one presented in the current action, (2) there was a

final judgment on the merits in the prior adjudication, and (3) the party against whom the

estoppel is asserted was a party to the prior adjudication or in privity with such a party. Talarico

v. Dunlap,

(1996), aff'd, 177 Ill. 2d. 185 (1997). For collateral estoppel

to apply, the factual issue against which the doctrine is interposed must have actually and

necessarily been litigated and determined in the prior action.

Even when this threshold has

been met, collateral estoppel will not be applied where injustice would result.

¶ 39 The party asserting estoppel bears the heavy burden of showing with certainty that the

identical and precise issue sought to be precluded in the later adjudication was decided in the

previous adjudication. Benton v. Smith,

(1987). 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.,

(1996). The

doctrine will not apply if it is not clear that the former judgment or verdict necessarily decided

the factual question at issue in the subsequent proceeding. Scott,

. Where

uncertainty exists because more than one distinct factual issue was presented in the prior case,

estoppel will not be applied. Progressive Land Developers, Inc. v. Exchange National Bank of

Chicago,

(1994). Collateral estoppel cannot be applied based on pure

speculation as to what the trial court found in the prior case. Anderson v. Financial Matters, Inc.,

(1996).

¶ 40 Furthermore, following the United States Supreme Court, our supreme court has stated

that courts must be more cautious in allowing collateral estoppel to be used offensively to

foreclose a defendant from litigating an issue the defendant had previously litigated

unsuccessfully in another action. In re Owens, 125 Ill. 2d. 390, 397-99 (1988). Nonmutual

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offensive collateral estoppel refers to situations where a plaintiff who was not a party to the prior

proceeding seeks to prevent a defendant from relitigating an issue previously decided. Herzog v.

Lexington Township,

(1995). In cases, such as the case at bar, where

offensive nonmutual collateral estoppel is sought, our supreme court has said use of this doctrine

brings into question considerations of fairness and thus circuit courts must 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.

.

¶ 41 Identical Issues

¶ 42 We begin our analysis by examining whether the minimal threshold requirements for

application of collateral estoppel have been met. As set forth above, the first requirement is that

the issue decided in the prior adjudication is identical to the one presented in the current action.

Talarico,

.

¶ 43 The issue to be decided in the current action is whether respondent acted “intentionally

and unjustifiably” in causing Decedent’s death under the Slayer Statute, which states in relevant

part as follows:

“A person who intentionally and unjustifiably causes the death of another shall

not receive any property, benefit, or other interest ***.” (Emphasis added.) 755

ILCS 5/2-6 (West 2012).

¶ 44 In order for the issue decided in the prior adjudication to be identical to the one presented

in the current action, the criminal court would have to have actually and necessarily determined

that (1) respondent intentionally caused Decedent’s death and (2) that respondent unjustifiably

caused Decedent’s death. See

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¶ 45 The probate court noted that, in order to have found respondent NGRI, the criminal court

was required to first find that the State had proven beyond a reasonable doubt each element of

the two charged first degree murder offenses. See 720 ILCS 5/6-2(e) (West 2012). The probate

court stated that, by finding respondent NGRI on all counts, the criminal court necessarily found

that the State met its burden to prove beyond a reasonable doubt all elements included in the

charged offenses of first degree murder. From there, the probate court concluded that “the issues

of intent and lawful justification were litigated during the criminal trial and a determination of

[respondent’s] mental state was necessary to the court’s verdict.”

¶ 46 Respondent was found NGRI of first degree murder under sections 9-1(a)(1) and 9-

1(a)(2) of the Criminal Code (id. § 9-1(a)(1), (2)). Sections 9-1(a)(1) and 9-1(a)(2) of the

Criminal Code provide as follows:

“(a) A person who kills an individual without lawful justification commits

first degree murder if, in performing the acts which cause the death:

(1) he either intends to kill or do great bodily harm to that individual

or another, or knows that such acts will cause death to that individual or

another; or

(2) he knows that such acts create a strong probability of death or

great bodily harm to that individual or another ***.” (Emphases added.)

Id.

¶ 47 The criminal court did not specify whether it found respondent (1) intended to kill

Decedent or (2) intended to cause Decedent great bodily harm or (3) knew that his acts would

cause death to Decedent under section 9-1(a)(1), nor did it specify whether under section 9-

1(a)(2) it found respondent (1) knew that such acts created a strong probability of Decedent’s

death or (2) knew that such acts created a strong probability of great bodily harm to Decedent.

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This is significant in this case because the criminal court could have found respondent NGRI if it

only found that respondent intended to cause Decedent great bodily harm (9-1(a)(1)) and knew

that such acts created a strong probability of great bodily harm to Decedent (9-1(a)(2)).

Therefore we cannot say the criminal court’s NGRI determination actually and necessarily

adjudicated the question of whether respondent intended to cause Decedent’s death under the

Slayer Statute.

¶ 48 The different actions that constitute first degree murder are distinguished within the

statute by the use of the word “or.” See id. Use of the disjunctive “or” marks an alternative

indicating the various parts of the sentence that it connects are to be taken separately. Elementary

School District 159 v. Schiller,

(2006). Accordingly, to find respondent

NGRI of first degree murder under section 9-1(a)(1), the criminal court needed to find that the

State had proven beyond a reasonable doubt that respondent performed the acts that caused

Decedent’s death without lawful justification and that when he did so any one of the following

was also true: (1) he intended to kill Decedent or (2) he intended to do great bodily harm to

Decedent or (3) he knew that such acts created a strong probability of death to Decedent.

¶ 49 Similarly, to find respondent guilty under first degree murder section 9-1(a)(2) the

criminal court needed to find that the State had proven beyond a reasonable doubt that

respondent performed the acts that caused Decedent’s death without lawful justification and that

when he did so any one of the following was also true: (1) he knew that such acts created a

strong probability of death to Decedent or (2) he knew that such acts created a strong probability

of great bodily harm to Decedent.

¶ 50 Therefore when the criminal court found respondent NGRI without specifically finding

that he intentionally killed Decedent it did not actually and necessarily determine that respondent

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intentionally caused Decedent’s death because an NGRI finding could have resulted where only

great bodily harm was intended or was the known result of respondent’s actions.

¶ 51 This reading of first degree murder is highlighted in People v. Harris,

(1978), which analyzed the elements of murder in the context of attempted murder. In Harris our

supreme court recognized that “ ‘[s]ome crimes, such as murder, are defined in terms of acts

causing a particular result plus some mental state which need not be an intent to bring about that

result.’ ”

at 27-28 (quoting Wayne R. LaFave & Austin W. Scott, Handbook on Criminal Law

§ 59, at 428 (1972)). The Harris court states that “[t]he crime of murder is thus committed not

only when a person intends to kill another individual, but also when he intends to do great bodily

harm ***, or when he knows that his acts create a strong probability of death or great bodily

harm.” Id. at 23. Accordingly, in the context of attempted murder, where defendant must act with

an intent to kill, it is not sufficient to show that the accused intended to cause serious bodily

harm in order to prove attempted murder. Id. at 27; see also People v. Trinkle,

(1977) (finding the inclusion of “bodily harm” language in a jury instruction improper because it

would allow a jury to return an attempted murder guilty verdict on evidence that defendant

intended only to cause great bodily harm short of death where an intent to kill is required for an

attempted murder conviction).

¶ 52 More recently in People v. Hopp,

(2004), our supreme court reviewed the

elements of murder, but this time in the context of conspiracy to commit murder. Referencing its

decisions in Harris and Trinkle, the court reiterated that a person cannot be guilty of attempted

murder unless he intended to kill and thus a jury instruction with the lesser intent to do great

bodily harm under first degree murder (720 ILCS 5/9-1(a)(1) (West 2000)) is improper. Hopp,

. Similarly, in cases of conspiracy to commit murder the defendant must have

intended a killing and, as such, a jury instruction for first degree murder when combined with the

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instructions on conspiracy must make clear the State’s burden to prove defendant intended to kill

rather than to do great bodily harm.

.

¶ 53 Here, as in the context of attempted murder and conspiracy to commit murder, intending

to cause bodily harm is something very different than intending to kill someone or to cause

death. See Hopp,

; Harris,

; Trinkle,

.

¶ 54 The probate court relied on our supreme court’s decision in American Family Mutual

Insurance Co. v. Savickas,

(2000), to support its conclusion that intent and

justification were necessarily adjudicated in respondent’s criminal trial. We disagree with the

probate court’s application of Savickas to this case.

¶ 55 Savickas was convicted of first degree murder and was sued by the victim’s estate for

wrongful death and survival.

. Savickas tendered the defense of the suit to his insurance

provider.

However, the insurance policy contract had an exclusion that stated that the policy

did not apply to “bodily injury ‘expected or intended by any insured.’ ”

The insurance

company sought summary judgment stating that Savickas was collaterally estopped by his first

degree murder conviction, which necessarily adjudicated the fact that Savickas expected or

intended the bodily harm to the victim, absolving the insurance company of obligation under the

policy.

. The Savickas court first determined that collateral estoppel may be accorded to

a prior criminal conviction where the threshold requirements of collateral estoppel are met.

. The court went on to determine that Savickas’s first degree murder criminal conviction

estopped Savickas from arguing that his conduct in causing bodily injury was not expected or

intentional.

. Specifically, the court stated that by finding Savickas guilty of first

degree murder pursuant to sections 9-1(a)(1) and 9-1(a)(2) of the Criminal Code, he was found

either to have “intended to kill the victim, or at least to have known that his acts created a strong

probability of death or great bodily harm” and that this finding “establishe[d] that he intended or

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expected the results of his actions, the issue in the declaratory judgment action.” (Internal

quotation marks omitted.)

¶ 56 The Savickas case can be distinguished. In Savickas, the issue in the insurers’ declaratory

judgment action was whether the bodily injury was expected or intended by Savickas because the

insured’s conduct causing expected or intended harm was excluded from coverage in the

insurance contract.

Our question is a different one—whether respondent intentionally and

unjustifiably caused the death of Decedent—which requires a different analysis. As explained

above, the criminal court in this case did not adjudicate the question of whether respondent

intentionally and unjustifiably caused decedent’s death with its judgment finding defendant

NGRI on both counts of first degree murder because the court could have made this finding

believing respondent intended to cause Decedent great bodily harm and knew that such acts

created a strong probability of great bodily harm to Decedent. Therefore the criminal court did

not actually or necessarily find the respondent intended to cause the decedent’s death.

¶ 57 Therefore we find the minimum threshold requirements for application of the doctrine of

collateral estoppel have not been met and, thus, the doctrine is inapplicable to the facts of this

case. See Talarico,

.

¶ 58 Summary Judgment as a Matter Of Law

¶ 59 Petitioner argues that, even if collateral estoppel does not apply, this court should

nevertheless find that the Slayer Statute bars respondent from receiving from Decedent as a

matter of law.

¶ 60 The purpose of summary judgment is to determine whether any genuine issues of

material fact exist, not to decide factual issues. Commonwealth Eastern Mortgage Co. v.

Williams,

(1987). A motion for summary judgment is only properly

granted if the pleadings, depositions, admissions on file, affidavits, and exhibits, all being

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construed liberally in favor of the opponent, show that there is no issue of material fact and the

moving party is entitled to judgment as a matter of law.

¶ 61 Petitioner relies on statements culled from three different sources: (1) respondent’s

response to petitioner’s request to admit filed in this probate proceeding, (2) testimony from Dr.

Christina Floreani stipulated to during respondent’s criminal trial concerning statements made by

respondent to Dr. Floreani, and (3) discovery deposition testimony of Dr. Roni Seltzberg during

this probate proceeding concerning statements made by respondent to Dr. Seltzberg. The

statements are as follows:

Respondent’s response to petitioner’s request to admit:

“Faskowitz stabbed Gayle multiple times with a sharp knife.”

“Faskowitz killed Gayle at her residence.”

Stipulated testimony of Dr. Christina Floreani at respondent’s criminal trial:

“Faskowitz admitted to Dr. Christina Floreani that he ‘took a knife with

him to [Gayle’s] apartment with the intent to kill her.’ ” (Emphasis omitted.)

“Faskowitz admitted to Dr. Floreani that ‘I came into the [Decedent’s]

house. I had the keys. I thought she had changed the locks, but she didn’t. She

was just sitting there. I called her a monster, *** and I killed her.’ ”

Testimony from the discovery deposition of Dr. Roni Seltzberg in this probate

proceeding:

“Faskowitz admitted to Dr. Roni Seltzberg that he brought the knife that

he used to kill Gayle from his home to her home and let himself into Gayle’s

home.”

“Faskowitz admitted to Dr. Seltzberg that he stabbed Gayle repeatedly and

cut her neck to make sure she was dead.”

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“Faskowitz admitted to Dr. Seltzberg that prior to killing Gayle, Faskowitz

came to believe that Gayle was ‘evil’ and that she was a ‘skinhead.’ ”

“Faskowitz admitted to Dr. Seltzberg that prior to the day that Faskowitz

actually killed Gayle, he had thought about killing her.”

“Faskowitz admitted to Dr. Seltzberg that he killed Gayle because he

believed that ‘he had received a sign from the Lord that it would be the right

thing for to [sic] him to kill [Gayle].’ ”

“Faskowitz admitted to Dr. Seltzberg that he killed Gayle because he

believed that God wanted him to kill Gayle because ‘she was making my life

not worth living’ and because ‘she was teaching Skinheads to kill people born

Orthodox Jews because they are like dogs and not humans so you can kill

them if the opportunity arises.’ ”

“Faskowitz admitted to Dr. Seltzberg that he killed Gayle because he

thought ‘she was a leading Skinhead’ and that she was ‘trying to have me

killed because I recognized a gay rabbi.’ ”

“Faskowitz admitted to Dr. Seltzberg that that [sic] he believed that when

he heard the air conditioning go on during the killing of Gayle it ‘meant that

what he was doing was right, a message from God that this was good as he

was basically saving the world.’ ”

¶ 62 Petitioner takes the position that these facts are judicial admissions, cannot be

contradicted under the theory of judicial estoppel, and establish that respondent intentionally and

unjustifiably caused Decedent’s death thereby precluding him from receiving from Decedent

under the Slayer Statute. Petitioner’s argument rests on the theory that the aforementioned

statements constitute judicial admissions by respondent.

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¶ 63 Judicial Admissions

¶ 64 A judicial admission is a deliberate, clear, unequivocal statement by a party concerning a

concrete fact within that party’s knowledge. North Shore Community Bank & Trust Co. v.

Sheffield Wellington LLC,

. The effect of a judicial admission is

to withdraw a fact from issue, making it unnecessary for the opposing party to introduce

evidence in support thereof. Freedberg v. Ohio National Insurance Co.,

. Judicial admissions include admissions made in pleadings, testimony in open

court, stipulations, and in response to requests to admit. Dremco, Inc. v. Hartz Construction Co.,

(1994). Once made, a judicial admission may not be contradicted in a

motion for summary judgment. Freedberg,

. Courts will not

apply the doctrine of judicial admissions to bar claims or defenses where there was other

evidence to support such a claim or defense. Hurley v. Phillips,

(1964).

¶ 65 In order for testimony to be binding, it must be peculiarly within the knowledge of the

deponent. Hansen v. Ruby Construction Co.,

(1987). Accordingly, the

witness must be in a position to know the fact about which he is testifying. Eidson v. Audrey’s

CTL, Inc.,

(1993). Judicial admissions only apply when a party’s

testimony, taken as a whole, is unequivocal. Dunning v. Dynegy Midwest Generation Inc.,

. When analyzing whether testimony is equivocal, the court must

consider the whole testimony, as the determination depends on an evaluation of all the testimony

not just a part of it. Id.; Installco, Inc. v. Whiting Corp.,

(2002).

¶ 66 Testimony of Dr. Roni Seltzberg and Dr. Christina Floreani

¶ 67 Petitioner argues that Dr. Seltzberg’s deposition testimony in this probate proceeding and

Dr. Floreani’s stipulated trial testimony in the criminal proceeding concerning statements made

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to each of them by respondent should constitute a judicial admission as to respondent’s

statements. We do not agree that such testimony is subject to the judicial admission rule for the

reasons set forth below.

¶ 68 Dr. Seltzberg’s discovery deposition testimony in this matter cannot constitute a judicial

admission as to statements respondent made to Dr. Seltzberg. Illinois Supreme Court Rule 212

(eff. Jan. 1, 2011) governs the purposes for which a discovery deposition may be used. Rule 212

provides that an admission made by a party at a pretrial deposition that is deliberate, detailed,

and unequivocal as to matters within the party’s knowledge will conclusively bind the party-

deponent and he will not be heard to contradict the admission. Commonwealth Eastern Mortgage

Co.,

. The judicial policy behind this rule is that, once a party has given

sworn testimony, he should not be allowed to commit perjury and change his testimony to avoid

the consequences of the prior testimony.

.

¶ 69 However, the deposition statements offered by petitioner here are not respondent’s under

oath deposition statements, but those of Dr. Seltzberg concerning statements made to her by

respondent. Different evidentiary rules apply to the use of deposition testimony of a party versus

a nonparty. In re Estate of Rennick,

(1998). The deposition of a party may

contain admissions that are an exception to the rule excluding hearsay, while the deposition of a

nonparty witness is hearsay generally admissible only for impeachment purposes.

Respondent’s statements to Dr. Seltzberg may not constitute hearsay pursuant to Illinois Rule of

Evidence 801(d)(2) (eff. Oct. 15, 2015) as an admission by a party opponent; however, Dr.

Seltzberg’s testimony concerning what respondent said to her does not turn respondent’s

statements into judicial admissions. Instead, such an admission is an evidentiary admission

subject to explanation and contradiction by other evidence. See Elliott v. Industrial Comm’n,

(1999).

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¶ 70 With respect to Dr. Floreani’s stipulated statements in the criminal trial, it must be noted

that the stipulation was only as to what Dr. Floreani would testify to if she were called as a

witness in the criminal trial. “ ‘[A] stipulation as to the testimony *** a witness would give if

called, although it may constitute evidence of the facts covered, is not an admission of the truth

of such testimony and does not prevent a party from attacking it as he might attack the testimony

itself, had it been given.’ ” People v. Harris,

, ¶ 36 (quoting United

States v. Spann,

(10th Cir. 1975)).

¶ 71 Dr. Seltzberg and Dr. Floreani are not parties to this litigation. Even if the doctors were

considered experts in this probate proceeding, such witness testimony is not subject to the

judicial admission rule where the testimony is not sufficiently clear, deliberate, and unequivocal.

Mitsias v. I-Flow Corp.,

. Looking at each doctor’s testimony in

its entirety, there are a number of statements that suggest respondent’s statements to the doctors,

which petitioner seeks to classify as judicial admissions, were something other than clear,

deliberate, and unequivocal. Dr. Floreani’s stipulated testimony included the statement that at the

time of Decedent’s death respondent was legally insane experiencing acute psychosis,

etiologically based in the mental disease of schizophrenia. Respondent’s condition may have

impacted respondent’s ability to accurately report the events surrounding Decedent’s death.

Moreover, as part of her stipulated testimony, Dr. Floreani would testify that respondent stated to

her “[a]t that point, I was already thinking that there were these people running around like

demons, posing as people, and I thought Gayle might be one of these demons” creating

uncertainty as to who or what respondent believed he was interacting with. As to Dr. Seltzberg’s

testimony, on the two occasions respondent met with the doctor and described the events

surrounding Decedent’s death, Dr. Seltzberg testified she believed respondent to be fairly

coherent but still delusional at their first meeting and respondent had paranoid delusions and

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other psychotic interpretations of things that were happening around him at the second meeting.

Respondent reported to Dr. Seltzberg that he believed his killing Decedent was self-defense.

Respondent also reported that he believed Decedent was trying to kill him or have him killed. Dr.

Seltzberg testified that she did not think respondent thought of Decedent as a person because he

referred to people as being demons. Moreover, respondent’s statements sought to be introduced

as judicial admissions were not peculiarly within either doctor’s knowledge. See Hansen,

. Neither Dr. Floreani nor Dr. Seltzberg was present when Decedent was killed.

Even if they had been present, they could not know what was in respondent’s mind at the time.

¶ 72 Respondent’s Responses to Request to Admit

¶ 73 Having determined that statements made by respondent to Drs. Seltzberg and Floreani are

not judicial admissions, we address respondent’s responses to petitioner’s request to admit,

which do constitute judicial admissions. Richard v. Nederlander Palace Acquisition, LLC,

. The two judicial admissions are as follows:

“[Gayle’s] death resulted from Faskowitz stabbing her multiple times with a

sharp knife.”

“The stabbing and death occurred at Ivy’s residence ***.”

¶ 74 These two statements, while judicial admissions, do not establish as a matter of law that

respondent intentionally and unjustifiably caused Decedent’s death. They say nothing about

respondent’s intentions or whether any justification exists for respondent’s conduct. Thus, these

admissions alone are insufficient to bar respondent from receiving as a matter of law under the

Slayer Statute.

¶ 75 Judicial Estoppel

¶ 76 Petitioner argues that judicial estoppel should be applied to respondent’s admissions.

Judicial estoppel is an equitable doctrine intended to protect the integrity of the judicial process

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by prohibiting parties from deliberately taking a contrary position to one the litigant took and

benefited from in an earlier proceeding. Seymour,

. This doctrine is an

extraordinary one that should be applied with caution.

¶ 39 (citing Construction Systems, Inc.

v. FagelHaber, LLC,

). There are five prerequisites generally

required to invoke judicial estoppels as follows: the party to be estopped must have (1) taken two

positions (2) that are factually inconsistent (3) in separate judicial or quasi-judicial administrative

proceedings, (4) intended for the trier of fact to accept the truth of the facts alleged, and (5) have

succeeded in the first proceeding and received some benefit from it. Id. ¶ 37. The doctrine of

judicial estoppel is invoked by the court at its discretion. Id. ¶ 41.

¶ 77 As set forth above, aside from respondent’s responses to petitioner’s request to admit,

none of the statements presented by petitioner constitute judicial admissions. We also note that

some of the statements relied on by petitioner in his judicial estoppel argument were not made in

a separate judicial proceeding as required for judicial estoppel to apply. Id. ¶ 37. Specifically,

respondent’s responses to petitioner’s request to admit and Dr. Seltzberg’s deposition testimony

both were made during this probate matter. Therefore judicial estoppel cannot apply. As to the

stipulated criminal trial testimony of Dr. Floreani, as discussed supra, the statements made by

respondent to the doctor were in and of themselves contradictory as to whether respondent

intentionally and unjustifiably caused Decedent’s death, and therefore judicial estoppel cannot be

appropriately applied even if the statements were judicial admissions. Moreover, a stipulation as

to expert testimony merely dispenses with evidentiary proof of their testimony to include

qualifications, examinations, and diagnosis and do not amount to a factual admission. People v.

Pettit,

(1981); Harris,

.

¶ 78 Judicial estoppel is inapplicable even if we look generally at respondent’s having

successfully raised an insanity defense in the criminal trial. A verdict of NGRI establishes two

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facts: (1) that defendant committed the act that constitutes the criminal offense, in this case first

degree murder, and (2) that he committed the act because of mental illness. People v. Wells,

(1998) not followed as dicta on other grounds by Harrison, 26 Ill. 2d at 434

(citing Jones v. United States,

(1983)). As explained in the context of

collateral estoppel, a general finding that respondent committed the act that constitutes first

degree murder but is nonetheless NGRI does not equate to an adjudication as to respondent’s

intent under the Slayer Statute. Accordingly, as with collateral estoppel, respondent’s insanity

defense in his criminal trial is not a factually inconsistent position to respondent’s claim here that

he did not intentionally and unjustifiably cause Decedent’s death.

¶ 79 Finally, petitioner argues that he is entitled to summary judgment as a matter of law

because respondent failed to introduce competent evidence to dispute the facts establishing that

he intended to cause Decedent’s death. We disagree.

¶ 80 Summary judgment is a drastic measure and should only be granted where the movant’s

right to judgment is clear and free from doubt. McGinley Partners, LLC v. Royalty Properties,

LLC,

. The party moving for summary judgment bears the initial

burden of proof by either (1) affirmatively showing that some element of the case must be

resolved in his favor or (2) establishing that there is an absence of evidence to support the

nonmoving party’s case.

Where plaintiff is the moving party, he must establish through the

pleadings and supporting documents the validity of its factual position on all of the contested

elements of the cause of action. Performance Food Group Co. v. ARBA Care Center of

Bloomington, LLC,

. Once the moving party satisfies its initial

burden of production, the burden of production shifts to the nonmoving party to present evidence

to establish that there are genuine issues of material fact and/or that the moving party is not

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entitled to summary judgment as a matter of law.

We construe the record strictly against the

movant and liberally in favor of the nonmoving party. Seymour,

.

¶ 81 Petitioner moved for summary judgment and bears the initial burden of establishing

through pleadings and supporting documents all of the essential elements of his claim that were

not admitted by respondent. Performance Food Group Co.,

.

Here petitioner must establish that respondent “intentionally and unjustifiably” caused

Decedent’s death. Upon review of the pleadings and all supporting documents presented by

petitioner, there remains a factual dispute as to whether respondent intentionally caused

Decedent’s death.

¶ 82 Petitioner argues that under the intent standard in Dougherty v. Cole,

(2010), respondent intentionally and unjustifiably caused Decedent’s death because he

was cognizant that he was killing Decedent. Dougherty, cited by petitioner, is factually dissimilar

to the instant case. In Dougherty the probate court specifically noted that the decedent’s murder

was unjustifiable, and neither party argued otherwise.

. Further the defendant testified

he knew the person he beat and stabbed was the decedent and he knew he was trying to kill the

decedent when he grabbed the knife and stabbed her.

. Similarly, in Laborers’

Pension Fund v. Miscevic,

(7th Cir. 2018), there was a finding by the criminal

court that the defendant intended to murder the decedent without justification. No such findings

or testimony exist from respondent’s criminal trial, and there was no testimony during the

probate proceedings.

¶ 83 Moreover, we note that even petitioner’s contention that respondent was cognizant that

he was killing Decedent is contradicted by petitioner’s own supporting documents, which

internally create an issue of fact. For example, Dr. Seltzberg’s deposition indicates it was not

clear that respondent was even capable of accurately reporting on the events that transpired at the

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time of Decedent’s death because at the time of this reporting respondent was still delusional or

had other psychotic interpretations of things that were happening around him. Nevertheless,

when asked if respondent understood he was killing Decedent, both Drs. Seltzberg and Floreani

reference the fact that respondent may have believed Decedent was not Decedent, but a demon.

Dr. Seltzberg also referenced respondent’s belief that he was acting in self-defense.

¶ 84 Petitioner, in further support of his argument for summary judgment as a matter of law,

cites People v. Medrano,

(1995), which provides that “[t]here is a

presumption of an intent to kill where one voluntarily commits an act, the natural tendency of

which is to destroy another’s life.” The theory behind this presumption is that “since every sane

man is presumed to intend all the natural and probable consequences flowing from his own

deliberate acts it follows that if one wilfully does an act the direct and natural tendency of which

is to destroy another’s life, the natural and irresistible conclusion, in the absence of qualifying

facts, is that the destruction of such other person’s life was intended.” (Emphasis added.) People

v. Coolidge,

(1963). While the law presumes that all persons are sane, this

presumption serves no useful purpose when the issue of the defendant’s insanity is clearly raised

and even more so in the instant case where respondent’s insanity has been adjudicated by the

criminal court. People v. Dwight,

(2006).

¶ 85 Under the facts before us, the question of whether respondent “intentionally” caused

Decedent’s death for purposes of the Slayer Statute remains a question of material fact that

cannot be resolved as a matter of law. Accordingly summary judgment is not appropriate.

¶ 86 CONCLUSION

¶ 87 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed,

and this case is remanded for further proceedings consistent with this opinion.

¶ 88 Reversed and remanded.

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