People v. Peterson , 2017 IL 120331 ( 2018 )

2017 IL 120331IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 120331)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v. DREW PETERSON, Appellant.
Opinion filed September 21, 2017.—Modified upon denial of rehearing January
19, 2018.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and
Burke concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial in the circuit court of Will County, defendant, Drew
Peterson, was found guilty of the first degree murder of his third ex-wife, Kathleen
Savio (Kathleen), and sentenced to 38 years’ imprisonment. The appellate court
affirmed defendant’s conviction and sentence. 2015 IL App (3d) 130157. We
allowed defendant’s petition for leave to appeal. For the reasons discussed below,
we affirm.
¶2 BACKGROUND
¶3 The appellate court opinion contains a detailed recitation of the evidence
adduced at trial (id. ¶¶ 2-172), and defendant does not challenge the sufficiency of
such evidence. Accordingly, we provide only a summary of the events leading to
defendant’s arrest and prosecution and an overview of the State’s evidence.
Additional facts will be set forth in the analysis section as necessary for resolution
of the issues raised in this appeal.
¶4 Defendant and Kathleen were married on May 3, 1992. During the marriage,
the couple had two sons. The Peterson family lived in Bolingbrook, Illinois, where
defendant was employed as a police officer. In early 2002, defendant and Kathleen
each filed a petition for dissolution of marriage; the cases were consolidated.
Kathleen was awarded temporary custody of the couple’s sons and exclusive
possession of the marital home. In a bifurcated dissolution proceeding, the
marriage was dissolved on October 10, 2003, with child custody, child support,
maintenance, and division of property to be determined at a hearing scheduled for
April 6, 2004.
¶5 On Sunday evening, February 29, 2004, defendant attempted to return his sons
to Kathleen after the boys’ weekend visitation, but Kathleen could not be reached.
The following evening defendant, with the assistance of a locksmith and along with
four of Kathleen’s neighbors, entered Kathleen’s home. Kathleen’s body was
discovered in the bathtub. The Illinois State Police conducted the death
investigation. An autopsy performed by Dr. Bryan Mitchell with the Will County
Coroner’s office determined that the cause of death was drowning. A coroner’s
inquest later determined that the manner of death was accidental.
¶6 Following Kathleen’s death, a final judgment was entered in the couple’s
bifurcated divorce. Defendant was awarded sole custody of his two sons, and
remaining financial issues were resolved in defendant’s favor.
¶7 At the time of Kathleen’s death, defendant was married to Stacy Cales. The
couple, along with their infant son, lived in a home in Bolingbrook not far from
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Kathleen’s residence. During defendant’s marriage to Stacy, the couple had another
child, a girl.
¶8 On October 28, 2007, Stacy’s sister, Cassandra Cales, reported to police that
Stacy was missing. Defendant denied that Stacy was missing and told investigators
that Stacy had left because they were having marital problems. Soon thereafter,
Kathleen’s body was exhumed. At the request of the Will County State’s Attorney,
a forensic pathologist, Dr. Larry Blum, performed an autopsy on November 13,
2007. Dr. Blum concluded that the manner of death was homicide. At the request of
the Savio family, Dr. Michael Baden, a forensic pathologist, performed an autopsy
on November 16, 2007. He, too, concluded that the manner of death was homicide.
¶9 In May 2009, a grand jury entered a two-count indictment against defendant for
the first degree murder of Kathleen. See 720 ILCS 5/9-1(a)(1), (a)(2) (West 2004).
During the seven-week jury trial that began in July 2012, the State presented
evidence that numerous bruises and abrasions on Kathleen’s body and a laceration
to her scalp were consistent with a struggle and inconsistent with an accidental fall
in the bathtub. The State also presented evidence that defendant had threatened
Kathleen on several occasions, stating that he could kill her and make it look like an
accident and that defendant had accessed Kathleen’s home after he moved out and
after Kathleen had changed the locks. Additionally, a witness for the prosecution
testified that four months prior to her death, defendant had offered him $25,000 to
help find a man to “take care of his third wife.” Finally, the State presented
evidence that, on the night of Kathleen’s death, Stacy observed defendant, who had
been absent from their home overnight, dressed in black and placing women’s
clothes that were not hers into the washing machine and that defendant coached
Stacy on what to say to police when she was interviewed following the discovery of
Kathleen’s body.
¶ 10 The jury found defendant guilty, and the trial court subsequently sentenced
defendant to 38 years’ imprisonment. On direct review, the appellate court affirmed
defendant’s conviction and sentence. 2015 IL App (3d) 130157, ¶ 229. We allowed
defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).
¶ 11 Defendant urges this court to reverse the judgment of the appellate court and
remand for a new trial, arguing that (1) certain hearsay statements were improperly
admitted at trial under the forfeiture by wrongdoing doctrine, (2) counsel rendered
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ineffective assistance when he called attorney Harry Smith as a witness at trial,
(3) Smith’s testimony should have been barred under the attorney-client privilege,
(4) counsel was operating under a per se conflict of interest, (5) evidence of prior
bad acts was improperly admitted at trial, and (6) cumulative error denied him a fair
trial. We consider each argument in turn.
¶ 12 ANALYSIS
¶ 13 I. Admission of Hearsay Statements
Under the Forfeiture by Wrongdoing Doctrine
¶ 14 Defendant first argues that certain hearsay statements were improperly
admitted at trial under the forfeiture by wrongdoing doctrine and that such error
requires this court to reverse his conviction and remand for a new trial. The State
concedes that if the hearsay statements were admitted in error, such error was not
harmless.
¶ 15 Resolution of defendant’s argument requires this court to consider two
principal issues: (1) whether, under separation of powers principles, the
common-law doctrine of forfeiture by wrongdoing adopted by this court, rather
than the forfeiture rule adopted by the legislature, governed the admission of the
hearsay statements and (2) whether the State met its burden of proof at the pretrial
forfeiture hearing for admission of the hearsay statements at trial. For a complete
understanding of these issues, we first provide additional background and analysis
as to how these issues arose and were treated by the courts below, as well as an
overview of the relevant statute and the common-law doctrine of forfeiture by
wrongdoing.
¶ 16 Prior to trial, the State filed a motion seeking the admission of hearsay
statements made by Kathleen and Stacy. In its motion, the State identified several
statements allegedly made by Kathleen to family members and others regarding
threats defendant made to her in which he stated that he could kill her and make it
look like an accident, she should just die, and she would not make it to the divorce
settlement. The State further sought admission of a letter from Kathleen to the Will
County State’s Attorney’s office, as well as Kathleen’s handwritten statement
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provided to police, recounting a July 5, 2002, incident in which defendant allegedly
entered Kathleen’s home without permission, pinned her to the stairs for over three
hours while he reviewed their history, and threatened her with a knife. As to Stacy,
the State generally sought admission of statements she made to others regarding
defendant’s conduct on the night of Kathleen’s death.
¶ 17 Ordinarily, the rule against hearsay would prohibit the introduction at trial of
such out-of-court statements that are offered to prove the truth of the matter
asserted. People v. Williams, 238 Ill. 2d 125, 143 (2010); Ill. Rs. Evid. 801, 802
(eff. Jan. 1, 2011); see also Novicki v. Department of Finance, 373 Ill. 342, 344
(1940) (rule against hearsay provides that “a witness may testify only as to facts
within his personal knowledge and not as to what somebody else told him”). The
State, however, sought admission of these statements pursuant to section 115-10.6
of the Code of Criminal Procedure of 1963 (Code), a legislatively created exception
to the hearsay rule. 725 ILCS 5/115-10.6 (West 2008). The General Assembly has
since repealed section 115-10.6 (see Pub. Act 99-243, § 5 (eff. Aug. 3, 2015)), but
at the time defendant was tried, the statute provided as follows:
“Hearsay exception for intentional murder of a witness.
(a) A statement is not rendered inadmissible by the hearsay rule if it is
offered against a party that has killed the declarant in violation of clauses (a)(1)
and (a)(2) of Section 9-1 of the Criminal Code of 1961 intending to procure the
unavailability of the declarant as a witness in a criminal or civil proceeding.[1]
(b) While intent to procure the unavailability of the witness is a necessary
element for the introduction of the statements, it need not be the sole motivation
behind the murder which procured the unavailability of the declarant as a
witness.
(c) The murder of the declarant may, but need not, be the subject of the trial
at which the statement is being offered. If the murder of the declarant is not the
subject of the trial at which the statement is being offered, the murder need not
have ever been prosecuted.
1
Subclauses (a)(1) and (a)(2) of section 9-1 of the Criminal Code of 1961 define the offense of
first degree murder. 720 ILCS 5/9-1 (West 2008).
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(d) The proponent of the statements shall give the adverse party reasonable
written notice of its intention to offer the statements and the substance of the
particulars of each statement of the declarant. For purposes of this Section,
identifying the location of the statements in tendered discovery shall be
sufficient to satisfy the substance of the particulars of the statement.
(e) The admissibility of the statements shall be determined by the court at a
pretrial hearing. At the hearing, the proponent of the statement bears the burden
of establishing 3 criteria by a preponderance of the evidence:
(1) first, that the adverse party murdered the declarant and that the
murder was intended to cause the unavailability of the declarant as a
witness;
(2) second, that the time, content, and circumstances of the statements
provide sufficient safeguards of reliability;
(3) third, the interests of justice will best be served by admission of the
statement into evidence.
(f) The court shall make specific findings as to each of these criteria on the
record before ruling on the admissibility of said statements.
(g) This Section in no way precludes or changes the application of the
existing common law doctrine of forfeiture by wrongdoing.” 725 ILCS
5/115-10.6 (West 2008).
¶ 18 The State also sought admission of Kathleen’s and Stacy’s hearsay statements
under the common-law doctrine of forfeiture by wrongdoing, referenced in
subsection (g) of the statute (725 ILCS 5/115-10.6(g) (West 2008)). The
common-law doctrine, which dates back to the seventeenth century, permits the
introduction of an absent witness’s statements where the defendant engaged in
conduct designed to prevent the witness from testifying. Giles v. California, 554
U.S. 353, 359-61 (2008). The Supreme Court adopted the common-law doctrine in
the early case of Reynolds v. United States, 98 U.S. 145 (1879). Giles, 554 U.S. at
366. Reynolds explained that the doctrine is founded on the equitable maxim that
“no one shall be permitted to take advantage of his own wrong.” Reynolds, 98 U.S.
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at 159. The common-law doctrine was eventually codified in the Federal Rules of
Evidence as an exception to the rule against hearsay. Giles, 554 U.S. at 367. 2
¶ 19 In People v. Stechly, 225 Ill. 2d 246 (2007), this court recognized the
common-law doctrine of forfeiture by wrongdoing as the law of Illinois. People v.
Hanson, 238 Ill. 2d 74, 97 (2010). The common-law doctrine has since been
codified in the Illinois Rules of Evidence. See Ill. R. Evid. 804(b)(5) (eff. Jan. 1,
2011); People v. Leach, 2012 IL 111534, ¶ 66 n.1 (acknowledging that Illinois
Rules of Evidence codified the preexisting common-law rules of evidence); People
v. Nixon, 2016 IL App (2d) 130514, ¶ 49 (“Illinois Rules of Evidence codified the
existing rules of evidence in this state, including the common-law doctrine of
forfeiture by wrongdoing”). Similar to its federal counterpart, the Illinois rule
provides that “[a] statement offered against a party that has engaged or acquiesced
in wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness” is “not excluded by the hearsay rule.” Ill. R. Evid. 804(b)(5)
(eff. Jan. 1, 2011).
¶ 20 Before ruling on the State’s motion to admit Kathleen’s and Stacy’s hearsay
statements under section 115-10.6 of the Code or the common-law doctrine of
forfeiture by wrongdoing, the court held a pretrial hearing, as required by the
statute. At the hearing, which commenced in January 2010, the trial court heard
testimony from 72 witnesses and received into evidence over 200 exhibits and
numerous stipulations. The trial court ultimately ruled that the State had proven, by
a preponderance of the evidence, that defendant murdered Kathleen and Stacy and
that such murders were intended to cause the women’s unavailability as witnesses.
The trial court further found that the time, content, and circumstances of six of the
statements provided sufficient safeguards of reliability and that the interests of
justice would best be served by their admission into evidence. The trial court found
the remaining statements not sufficiently reliable. The trial court later clarified that
its ruling was made solely under section 115-10.6 of the Code and denied the
State’s motion seeking admission of the excluded statements pursuant to the
common-law doctrine.
2
The federal rule provides that “[a] statement offered against a party that wrongfully
caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did
so intending that result,” is “not excluded by the rule against hearsay.” Fed. R. Evid. 804(b)(6).
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¶ 21 The State appealed the trial court’s ruling. See Ill. S. Ct. R. 604(a)(1) (eff. July
1, 2006). In a divided opinion, the appellate court held that it lacked jurisdiction.
People v. Peterson, 2011 IL App (3d) 100513, vacated in part by People v.
Peterson, No. 112875 (Nov. 30, 2011) (supervisory order). We subsequently
denied the State’s petition for leave to appeal but entered a supervisory order
directing the appellate court to vacate its judgment and address the State’s appeal
on the merits. Peterson, No. 112875 (Nov. 30, 2011) (supervisory order).
¶ 22 In its subsequent opinion, the appellate court held that section 115-10.6 of the
Code stood in direct conflict with the common-law doctrine of forfeiture by
wrongdoing, as adopted by this court and as codified in Illinois Rule of Evidence
804(b)(5). People v. Peterson, 2012 IL App (3d) 100514-B, ¶ 22. The appellate
court explained that, unlike the common-law doctrine, the statute requires a finding
of reliability and, under separation of powers principles, the conflict must be
resolved in favor of the rule or decisions of this court. Id. ¶¶ 22-24.
¶ 23 The appellate court observed that although the trial court applied the wrong rule
of law, the trial court had made the necessary factual findings for admission of the
statements under Illinois Rule of Evidence 804(b)(5), namely, that the State had
proved by a preponderance of the evidence that (1) defendant murdered Kathleen
and Stacy and (2) defendant did so with the intent to make the two women
unavailable as witnesses. Id. ¶ 25. Based on the trial court’s findings, the appellate
court concluded that the excluded statements were admissible at trial under the rule,
subject to any other evidentiary objections, and reversed and remanded the matter
to the trial court for further proceedings. Id. ¶ 25 n.6, ¶ 32.
¶ 24 On remand, the case eventually proceeded to a jury trial, at which several
hearsay statements made by Kathleen and Stacy were admitted into evidence. 3 The
jury found defendant guilty of first degree murder in the death of Kathleen. On
direct review following defendant’s conviction, defendant again challenged the
admissibility of Kathleen’s and Stacy’s hearsay statements. The appellate court,
however, declined to consider the matter, concluding that its earlier ruling was the
“law of the case.” 2015 IL App (3d) 130157, ¶ 204.
3
The judge who presided over defendant’s jury trial was not the same judge who presided over
the pretrial forfeiture hearing.
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¶ 25 The law of the case doctrine bars relitigation of an issue previously decided in
the same case. People v. Sutton, 233 Ill. 2d 89, 100 (2009). Thus, an issue of law
decided by the appellate court in a first appeal is generally binding upon that court
in a second appeal. Id. That limitation, however, does not apply to this court.
People v. Hopkins, 235 Ill. 2d 453, 470 (2009). “ ‘Our review may cover all matters
properly raised and passed on in the course of [the] litigation.’ ” Id. (quoting Relph
v. Board of Education of DePue Unit School District No. 103, 84 Ill. 2d 436, 442
(1981)). As explained in Hopkins, “[i]n finding the law of the case doctrine
inapplicable in this court, the emphasis has been on the fact that it was ‘the first
time the case has been before this court,’ and not on when the issue was addressed
in the appellate court.” Hopkins, 235 Ill. 2d at 470 (quoting Sutton, 233 Ill. 2d at
100). Accordingly, on appeal from the appellate court’s second decision in a case,
this court may consider an issue raised and passed upon by the appellate court in its
first decision. See id.; Krautsack v. Anderson, 223 Ill. 2d 541, 552 (2006).
¶ 26 In this case, although the appellate court was bound by the law of the case
announced in its first decision, this court is not. We will therefore consider whether
the appellate court erred in its first decision when it held that, under separation of
powers principles, the common-law doctrine of forfeiture by wrongdoing, adopted
by this court and embodied in Illinois Rule of Evidence 804(b)(5), governed the
admissibility of Kathleen’s and Stacy’s hearsay statements, rather than section
115-10.6 of the Code.
¶ 27 Separation of Powers
¶ 28 Defendant contends that section 115-10.6 of the Code can be reconciled with
this court’s rule and, thus, the statute does not offend separation of powers and
should have been given effect in this case. According to defendant, section
115-10.6 applies only when the defendant murdered the absent witness and Illinois
Rule of Evidence 804(b)(5) applies when the defendant rendered the witness
unavailable through any means other than murder. The State counters that Illinois
Rule of Evidence 804(b)(5) applies to all cases where a defendant’s wrongdoing
renders a witness unavailable to testify. The State posits that the statute directly and
irreconcilably conflicts with this court’s rule and the appellate court properly held
that the rule governs. Because the parties’ arguments present a purely legal issue,
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our review proceeds de novo. See People v. Clemons, 2012 IL 107821, ¶ 8; In re
Adoption of K.L.P., 198 Ill. 2d 448, 453 (2002).
¶ 29 The separation of powers clause of the Illinois Constitution provides that the
“legislative, executive and judicial branches are separate” and that “[n]o branch
shall exercise powers properly belonging to another.” Ill. Const. 1970, art. II, § 1.
Thus, each branch of government has its own unique sphere of authority. Best v.
Taylor Machine Works, 179 Ill. 2d 367, 410 (1997). The judicial article of the
Illinois Constitution vests this court with general administrative and supervisory
authority over all courts. Ill. Const. 1970, art. VI, § 16. This grant of authority
“clearly empowers this court to promulgate procedural rules to facilitate the
judiciary in the discharge of its constitutional duties.” O’Connell v. St. Francis
Hospital, 112 Ill. 2d 273, 281 (1986). Thus, the judicial power includes rulemaking
authority to regulate the trial of cases. Kunkel v. Walton, 179 Ill. 2d 519, 528
(1997); People v. Cox, 82 Ill. 2d 268, 274 (1980). Such authority necessarily
extends to the adoption of rules governing the admission of evidence at trial, an
authority this court has frequently exercised. See, e.g., People v. Lerma, 2016 IL
118496, ¶ 24 (recognizing that the research concerning eyewitness identification
“is well settled, well supported, and in appropriate cases a perfectly proper subject
for expert testimony” at trial); People v. Gard, 158 Ill. 2d 191, 201, 204 (1994)
(acknowledging that “[t]his court has consistently held evidence pertaining to
polygraph examination of a defendant generally inadmissible” and holding that
evidence of polygraph examination of a witness is also inadmissible); Wilson v.
Clark, 84 Ill. 2d 186, 196 (1981) (adopting Federal Rules of Evidence 703 and 705
concerning expert opinions offered at trial); People v. Montgomery, 47 Ill. 2d 510,
516-19 (1971) (adopting then-proposed Federal Rule of Evidence 609, limiting the
use of prior convictions to impeach the credibility of a witness).
¶ 30 The separation of powers clause, however, is not intended to achieve a
“ ‘complete divorce’ ” between the branches of government. Burger v. Lutheran
General Hospital, 198 Ill. 2d 21, 33 (2001) (quoting In re J.J., 142 Ill. 2d 1, 7
(1991)); Kunkel, 179 Ill. 2d at 528. The separate spheres of authority exercised by
each branch may “overlap.” Kunkel, 179 Ill. 2d at 528; Best, 179 Ill. 2d at 411. The
law of evidence is one area in which an overlap between the spheres of authority
exercised by the judicial and legislative branches exists. Although this court is
empowered to promulgate rules regarding the admission of evidence at trial, the
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General Assembly may legislate in this area without necessarily offending
separation of powers. First National Bank of Chicago v. King, 165 Ill. 2d 533, 542
(1995) (citing People v. Rolfingsmeyer, 101 Ill. 2d 137, 140 (1984)); accord Ill. Rs.
Evid., Committee Commentary (eff. Jan. 1, 2011) (“Illinois Rules of Evidence are
not intended to preclude the Illinois legislature from acting in the future with
respect to the law of evidence”). Because the legislature is the branch of
government charged with the determination of public policy, it has “the concurrent
constitutional authority to enact complementary statutes.” People v. Walker, 119
Ill. 2d 465, 475 (1988).
¶ 31 Notwithstanding this overlap between the judicial and legislative branches, this
court retains primary constitutional authority over court procedure. Kunkel, 179 Ill.
2d at 528. Accordingly, where an irreconcilable conflict exists between a
legislative enactment and a rule of this court on a matter within the court’s
authority, the rule will prevail. Id. (citing Walker, 119 Ill. 2d at 475-76); see also Ill.
R. Evid. 101 (eff. Jan. 1, 2011) (“statutory rule of evidence is effective unless in
conflict with a rule or a decision of the Illinois Supreme Court”). We agree with the
State that, in this instance, the statute and the rule cannot be reconciled and the
statute must give way to the rule.
¶ 32 Rule 804(b)(5) identifies only two criteria or factors that must be satisfied for
the admission of hearsay statements under the rule: (1) that the party against whom
the statement is offered “has engaged or acquiesced in wrongdoing” and (2) that
such wrongdoing “was intended to, and did, procure the unavailability of the
declarant as a witness.” Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011). The rule, like our
case law, makes no distinction based on the nature of the “wrongdoing.” Thus,
contrary to defendant’s argument, the rule applies whether the declarant is rendered
unavailable through murder or some other wrongdoing. See Hanson, 238 Ill. 2d at
93-99 (applying forfeiture by wrongdoing doctrine where the declarant was
murdered by the defendant); Stechly, 225 Ill. 2d at 277-78 (remanding for hearing
to determine whether, under the forfeiture by wrongdoing doctrine, the defendant’s
threats were intended to and did cause the child declarant to be legally unavailable
to testify).
¶ 33 In contrast to the rule, section 115-10.6 of the Code applies exclusively to cases
involving the declarant’s murder. Significantly, the statute imposes additional
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criteria that must be satisfied for admission of the declarant’s statements at trial: the
proponent of the statements must demonstrate, and the trial court must make a
specific finding on the record, that “the time, content, and circumstances of the
statements provide sufficient safeguards of reliability.” 725 ILCS 5/115-10.6(e)(2)
(West 2008). This court has held, however, that a defendant forfeits his ability to
challenge the reliability of the declarant’s statements by the very act of preventing
the declarant from testifying. Hanson, 238 Ill. 2d at 98. Indeed, requiring additional
indicia of reliability would undermine the equitable considerations at the very
center of the forfeiture by wrongdoing doctrine. Id. Accordingly, “so long as the
declarant’s statements are relevant and otherwise admissible, statements admitted
under the forfeiture by wrongdoing doctrine need not reflect additional indicia of
reliability.” Id. at 99.
¶ 34 The statute’s imposition of a reliability requirement creates an irreconcilable
conflict with a rule of this court on a matter within the court’s authority. Under such
circumstances, separation of powers principles dictate that the rule will prevail.
Kunkel, 179 Ill. 2d at 529. Thus, the appellate court did not err when it held, in its
earlier decision, that the admissibility of Kathleen’s and Stacy’s hearsay statements
was governed by the common-law doctrine of forfeiture by wrongdoing, embodied
in Illinois Rule of Evidence 804(b)(5), and not section 115-10.6 of the Code.
¶ 35 Sufficiency of the Evidence at the Pretrial Forfeiture Hearing
¶ 36 We next consider whether, as defendant argues, the trial court erred when it
found that the State met its burden of proof at the pretrial hearing for admission of
Kathleen’s and Stacy’s hearsay statements at trial. Defendant made this argument
on direct review in the appellate court. 2015 IL App (3d) 130157, ¶ 201. The
appellate court declined to consider this issue, again relying on the law of the case
doctrine. Id. ¶ 204. The law of the case doctrine, however, only bars relitigation of
an issue previously decided in the same case. Sutton, 233 Ill. 2d at 100. In its earlier
decision, the appellate court only addressed the separation of powers issue; it did
not address whether the State satisfied its burden of proof for admission of the
women’s statements. Thus, the appellate court erred in declining to address this
issue based on the law of the case doctrine. Although this court could remand the
case to the appellate court, because the complete record is before us and the issue
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has been fully briefed, in the interest of judicial economy we elect to address the
issue. See People v. Shinaul, 2017 IL 120162, ¶ 13; People v. Olivera, 164 Ill. 2d
382, 394 (1995).
¶ 37 The State’s burden of proof at a forfeiture by wrongdoing hearing is a
preponderance of the evidence. Stechly, 225 Ill. 2d at 278 (citing Davis v.
Washington, 547 U.S. 813, 833 (2006)). The preponderance standard is a less
stringent standard than proof beyond a reasonable doubt or even the intermediate
standard of clear and convincing evidence. In re D.T., 212 Ill. 2d 347, 362 (2004).
Under the preponderance standard, the State need only present evidence “ ‘that
renders a fact more likely than not.’ ” People v. Brown, 229 Ill. 2d 374, 385 (2008)
(quoting People v. Urdiales, 225 Ill. 2d 354, 430 (2007)). Thus, in a forfeiture
hearing, the State must establish that defendant, more likely than not, “engaged or
acquiesced in wrongdoing” and that such wrongdoing was “intended to, and did,
procure the unavailability of the declarant as a witness.” Ill. R. Evid. 804(b)(5) (eff.
Jan. 1, 2011).
¶ 38 Defendant here does not challenge the trial court’s finding that the State
established the “wrongdoing factor,” i.e., that the State proved by a preponderance
that he murdered Kathleen and Stacy. Defendant does challenge the trial court’s
finding that the State established the “intent factor,” i.e., that the State proved by a
preponderance that he murdered the two women to make them unavailable as
witnesses.
¶ 39 The parties agree that the trial court’s ruling should be reviewed under an abuse
of discretion standard. This standard generally applies to a trial judge’s decision to
allow or exclude evidence. D.T., 212 Ill. 2d at 356. Because an evidentiary ruling
typically requires the trial court to exercise discretion, i.e., to “make a judgment
call,” reviewing such rulings only for an abuse of discretion is appropriate. People
v. Chambers, 2016 IL 117911, ¶ 75. The admission of hearsay statements into
evidence pursuant to the forfeiture doctrine, however, is not dependent on a
judgment call by the trial court. Admission is dependent on whether the trial court
finds, by a preponderance of the evidence, that the defendant engaged in
wrongdoing that was intended to, and did, procure the witness’s unavailability.
“[W]hen a trial court makes a finding by a preponderance of the evidence, this court
will reverse that finding only if it is against the manifest weight of the evidence.”
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Best v. Best, 223 Ill. 2d 342, 348-49 (2006). A finding is against the manifest
weight of the evidence where “the opposite conclusion is clearly evident or if the
finding itself is unreasonable, arbitrary, or not based on the evidence presented.”
People v. Deleon, 227 Ill. 2d 322, 332 (2008). In Hanson, we implicitly applied the
manifest weight standard in the context of a forfeiture by wrongdoing hearing
where we concluded that the circuit court’s finding that the defendant caused the
declarant to be unavailable was not “arbitrary or unreasonable.” Hanson, 238 Ill. 2d
at 99. Thus, we will review the trial court’s ruling here under the manifest weight of
the evidence standard, and not for an abuse of discretion.
¶ 40 Before reviewing the evidence of intent introduced at the pretrial hearing, we
consider defendant’s argument concerning the kind of evidence necessary for a
finding of intent. Defendant argues that because the forfeiture by wrongdoing
doctrine only applies where the defendant designed to prevent the witness from
testifying (see Giles, 554 U.S. at 359-68), the State was required to identify the
specific testimony from Kathleen and Stacy that he wished to avoid when he
allegedly murdered them. Defendant contends that because the State failed to do so,
the State did not meet its burden of proof as to the intent factor. In support,
defendant cites State v. Dillon, 2016-Ohio-1561, 63 N.E.3d 712 (Ohio Ct. App.),
People v. Roscoe, 846 N.W.2d 402 (Mich. Ct. App. 2014) (per curiam), and Jensen
v. Schwochert, No. 11-C-0803, 2013 WL 6708767 (E.D. Wis. 2013).
¶ 41 We agree with defendant’s first proposition. The common-law doctrine of
forfeiture by wrongdoing generally applies only where the defendant designed to
prevent the witness from testifying. See Giles, 554 U.S. at 359-68; see also In re
Rolandis G., 232 Ill. 2d 13, 40 (2008) (stating that under Giles, “for forfeiture by
wrongdoing to apply, the evidence had to show that the defendant engaged in
witness tampering or some type of conduct designed to prevent the witness from
testifying, thwart the judicial process, or procure the witness’ absence from trial”).
¶ 42 We disagree, however, with defendant’s second proposition—that proof of a
defendant’s intent to prevent a witness from testifying requires the State to identify
the specific testimony from the absent witness that the defendant wished to avoid.
Nothing in Giles, our case law, or the language of Illinois Rule of Evidence
804(b)(5), suggests such an evidentiary requirement. And the out-of-state cases on
which defendant relies do not lend support to his argument. In each case, the
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reviewing court found error in the admission of hearsay statements from the murder
victim based on lack of evidence of intent (Dillon, 2016-Ohio-1561, 63 N.E.3d
712, at ¶ 25; Jensen, 2013 WL 6708767, at *8) or the failure of the trial court to
make any finding of intent (Roscoe, 846 N.W.2d at 408). But in no case did the
reviewing court suggest, much less hold, that forfeiture by wrongdoing does not
apply unless the State identifies the specific testimony the defendant sought to
avoid.
¶ 43 We recognize, of course, the evidentiary value to the State of identifying the
testimony the absent witness likely would have provided. Establishing the intent
factor is an easier task with, rather than without, such evidence. But adopting
defendant’s position and requiring such evidence in every case in which the State
relies on the forfeiture by wrongdoing doctrine would come very close to imposing
upon the State the burden of proving intent by direct evidence. Motive and intent,
however, are rarely proved by direct evidence. Rather, they “must be inferred from
conduct and the surrounding circumstances.” (Internal quotation marks omitted.)
In re Edmonds, 2014 IL 117696, ¶ 54; see also People v. Maggette, 195 Ill. 2d 336,
354 (2001) (intent “not only can be inferred from the surrounding circumstances
[citation] but usually is so proved”). No reason exists to depart from this
evidentiary construct. Accordingly, we hold that the State need not identify the
specific testimony defendant wished to avoid in order to prove defendant’s intent
for purposes of the forfeiture by wrongdoing doctrine.
¶ 44 We turn now to the evidence of intent introduced at the pretrial hearing to
determine whether the State met its burden of proving, by a preponderance, that
defendant murdered Kathleen and Stacy to prevent them from testifying. We note
that at a forfeiture hearing, the trial court may consider hearsay evidence, including
the unavailable witness’s hearsay statements. Stechly, 225 Ill. 2d at 278 (citing
Davis, 547 U.S. at 833); see also Ill. R. Evid. 104(a) (eff. Jan. 1, 2011) (when
deciding preliminary questions concerning the admissibility of evidence, “the court
is not bound by the rules of evidence except those with respect to privileges”).
¶ 45 Focusing first on defendant’s intent as to Kathleen, the State’s theory is that
defendant murdered Kathleen to prevent her from testifying at the April 6, 2004,
hearing in the bifurcated divorce proceeding, at which issues of child custody, child
support, maintenance, and division of property would be decided. The State
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presented extensive evidence regarding the acrimonious nature of the couple’s
divorce. For example, testimony established that defendant was adamant that
Kathleen not receive any portion of his pension from his years of service in the
Bolingbrook police department. Defendant was angry that their attorneys were
“getting all [his] money,” and he publicly stated that he would be better off if
Kathleen was dead. The couple was fighting over money, as Kathleen tearfully
advised her employer following a conversation with defendant in the parking lot of
the office where she worked. Additionally, custody of the couple’s two sons
remained a contested issue. Kathleen was passionate about not relinquishing
custody to defendant. Indeed, just six weeks prior to her death, when Kathleen
became convinced that she might not make it to the hearing, she extracted a
promise from her sister, Anna Doman, that Anna would take care of Kathleen’s
sons should anything happen to her.
¶ 46 In short, settlement of the remaining issues in the bifurcated divorce was not a
realistic possibility. Thus, no question exists that Kathleen would have testified at
the April 2004 hearing, as she had at an earlier hearing. Although the trial court
could not know for certain how that hearing would have proceeded or what
Kathleen’s testimony ultimately would have been, the trial court certainly knew
that Kathleen, as a party opponent, was defendant’s primary adversary.
Accordingly, the inference that defendant murdered Kathleen to prevent her from
testifying is much stronger in this case, where a party to the litigation is murdered,
than in a case where the person murdered had only a tangential relationship to the
litigation or would have been, at most, a minor witness.
¶ 47 In addition to the acrimonious nature of the divorce proceedings and the
certainty that Kathleen would have testified at the April 2004 hearing, the State
offered other evidence relevant to defendant’s intent. Jeffrey Pachter testified for
the State that he and defendant became friends when they both worked at a cable
company. According to Pachter, in the winter of 2003, defendant asked Pachter if
he wanted to go on a “ride along” in his police vehicle. Pachter accepted. During
the ride, defendant asked Pachter if he knew anyone that could have his “third wife
taken care of.” Defendant explained that “she has something on me.” Defendant
mentioned a $25,000 payment to Pachter but indicated that if Pachter found
someone to do it for less, he could keep the difference. Defendant did not identify
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the “something” that Kathleen had on him, but the import of Pachter’s testimony is
that defendant wished to silence Kathleen.
¶ 48 The State presented evidence that because Kathleen was silenced, the financial
and custody issues pending at the time of her death in the divorce proceeding were
ultimately resolved in defendant’s favor: defendant was awarded custody of his two
sons, defendant was awarded the proceeds from the sale of the marital home, and
defendant was awarded the business known as Blue Lightning Corporation.
Additionally, Harry Smith, Kathleen’s divorce attorney, testified that had Kathleen
not died, educational, medical, and other expenses for Kathleen’s and defendant’s
two sons would have been shared by the parties. Because Kathleen died, a trust
fund for the two boys was set up with the proceeds from an insurance policy on
Kathleen’s life. The proceeds, which exceeded $1 million, were paid to defendant
as the guardian of his sons’ estates.
¶ 49 Defendant disputes the sufficiency of the foregoing evidence, arguing that no
matter how horrific the murder of a spouse may be, the forfeiture by wrongdoing
doctrine does not apply unless the defendant killed his spouse to prevent testimony.
Defendant contends that the State’s evidence established, at most, that Kathleen’s
unavailability benefited him financially and allowed him to obtain sole custody of
his sons. According to defendant, the State has confused a motive for murder with
the specific intent to avoid testimony. We disagree.
¶ 50 The State was not required to demonstrate that preventing Kathleen from
testifying was defendant’s sole intent when he murdered her. The State was only
required to prove that her murder was motivated “at least in part” by an intent to
prevent her from testifying. Stechly, 225 Ill. 2d at 272; see also People v. Burns,
832 N.W.2d 738, 746 (Mich. 2013) (prosecution must show that defendant acted,
“at least in part,” with the purpose to cause the declarant’s unavailability); United
States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996) (sufficient to show that the
defendant “was motivated in part by a desire to silence the witness,” and the “intent
to deprive the prosecution of testimony need not be the actor’s sole motivation”
(emphases in original)).
¶ 51 Based on our careful review of the evidence at the pretrial hearing, and mindful
that the State’s burden was a preponderance of the evidence, we cannot say that the
trial court’s finding that the State proved that defendant murdered Kathleen to
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prevent her from testifying was “unreasonable, arbitrary, or not based on the
evidence presented.” DeLeon, 227 Ill. 2d at 332. That the State’s evidence may
have also established another motive for defendant’s murder of Kathleen, such as
financial gain or obtaining sole custody of his sons, is irrelevant to whether the
forfeiture by wrongdoing doctrine applies. See State v. Supanchick, 323 P.3d 231,
237 (Or. 2014) (forfeiture doctrine applied although the evidence permitted a
finding that defendant had more than one purpose in killing his wife); People v.
Banos, 100 Cal. Rptr. 3d 476, 479 (Cal. Ct. App. 2009) (“That defendant may have
also had other motives for the killing (e.g., retribution for infidelity) does not
preclude application of the [forfeiture] exception.”). 4
¶ 52 Turning to defendant’s intent as to Stacy, the State’s theory is that defendant
murdered Stacy to prevent her from reporting to police defendant’s involvement in
Kathleen’s murder or testifying at a reasonably anticipated divorce hearing or a
murder trial. Defendant argues that the State failed to meet its burden of proof as to
his intent, first focusing on the fact that no civil or criminal proceeding was pending
at the time of Stacy’s alleged murder. The State argues, however, that the absence
of pending legal proceedings is not dispositive of the issue of intent and does not
preclude application of the forfeiture by wrongdoing doctrine. In resolving this
issue we are guided, first and foremost, by the Giles opinion.
¶ 53 In Giles, which involved application of the forfeiture doctrine in the context of
a domestic violence case, the Supreme Court indicated that a defendant’s intent to
prevent testimony might be inferred from the surrounding circumstances. The
Court explained:
“Acts of domestic violence often are intended to dissuade a victim from
resorting to outside help, and include conduct designed to prevent testimony to
police officers or cooperation in criminal prosecutions. Where such an abusive
relationship culminates in murder, the evidence may support a finding that the
4
In a footnote, defendant posits that some of Kathleen’s hearsay statements were “testimonial”
under Crawford v. Washington, 541 U.S. 36 (2004), and their admission at trial implicates
defendant’s confrontation rights under the sixth amendment. As defendant concedes, however, the
forfeiture by wrongdoing doctrine “serves both as an exception to the hearsay rule and to extinguish
confrontation clause claims.” Hanson, 238 Ill. 2d at 97; see also Davis, 547 U.S. at 833 (rule of
forfeiture by wrongdoing extinguishes confrontation clause claims on essentially equitable
grounds). In light of our holding that the State met its burden for admission of Kathleen’s statements
under the forfeiture doctrine, we need not consider this issue further.
- 18 ­
crime expressed the intent to isolate the victim and to stop her from reporting
abuse to the authorities or cooperating with a criminal prosecution—rendering
her prior statements admissible under the forfeiture doctrine.” Giles, 554 U.S.
at 377.
¶ 54 As the above passage indicates, the Supreme Court expressly contemplated that
the forfeiture doctrine could apply not only where the defendant’s efforts were
designed to prevent testimony at trial, but also where the defendant’s efforts were
designed to prevent testimony to police, i.e., reporting criminal conduct. See
Banos, 100 Cal. Rptr. 3d at 491 (holding that under Giles, the factual predicate for
application of the forfeiture doctrine may be satisfied with evidence that the
defendant “(1) intended to stop the witness from reporting abuse to the authorities;
or (2) intended to stop the witness from testifying in a criminal proceeding”).
¶ 55 The Giles opinion also went on to state that “evidence of ongoing criminal
proceedings at which the victim would have been expected to testify” would be
“highly relevant.” Giles, 554 U.S. at 377. The Court did not state that evidence of
ongoing criminal proceedings was “necessary” to establish intent.
¶ 56 When we codified the common-law doctrine of forfeiture by wrongdoing in
Illinois Rule of Evidence 804(b)(5), we did not condition the doctrine’s application
on the existence of a pending legal proceeding. Courts in other jurisdictions,
analyzing their own states’ forfeiture rules that are essentially identical to our rule,
have held that the existence of a pending legal proceeding is not a requirement.
E.g., Supanchick, 323 P.3d at 238 (holding that “nothing in the text” of Oregon’s
forfeiture rule “requires that a matter be ongoing when the party acts to eliminate a
witness”); State v. Ivy, 188 S.W.3d 132, 147 (Tenn. 2006) (holding that Tennessee
forfeiture rule, like the federal rule, “is not limited to those cases in which a formal
charge or judicial proceeding was pending against a defendant when the declarant’s
statements were made”); State v. Hand, 107 Ohio St. 3d 378, 2006-Ohio-18, 840
N.E.2d 151, at ¶ 90 (holding that Ohio forfeiture rule extends to “potential
witnesses,” and the absence of pending charges at the time the defendant killed the
victim did not preclude admission of the victim’s statements at trial (internal
quotation marks omitted)); see also United States v. Dhinsa, 243 F.3d 635, 653 (2d
Cir. 2001) (agreeing that under federal Rule 804(b)(6) “ ‘a defendant may not
benefit from his or her wrongful prevention of future testimony from a witness or
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potential witness’ ” (quoting United States v. Emery, 186 F.3d 921, 926 (8th Cir.
1999))); Houlihan, 92 F.3d at 1279 (“we can discern no principled reason why the
waiver-by-misconduct doctrine should not apply with equal force if a defendant
intentionally silences a potential witness” (emphasis in original)).
¶ 57 Were we to hold otherwise, the equitable underpinnings of the forfeiture by
wrongdoing doctrine would be undermined, and the doctrine’s very purpose—to
prevent a defendant from thwarting the judicial process by taking advantage of his
own wrongdoing (Reynolds, 98 U.S. at 159; Rolandis G., 232 Ill. 2d at 40)—would
be defeated. Equity demands that a defendant who silences a witness, or a potential
witness, through threats, physical violence, murder, or other wrongdoing should
not be permitted to benefit from such conduct based solely on the fact that legal
proceedings were not pending at the time of his wrongdoing.
¶ 58 Because the absence of pending legal proceedings is not a bar to application of
the forfeiture by wrongdoing doctrine, the State was not precluded from pursuing
its theory that defendant’s intent, when he murdered Stacy, was to prevent her from
reporting to police defendant’s involvement in Kathleen’s murder or testifying at a
reasonably anticipated divorce hearing or criminal trial.
¶ 59 Before considering the sufficiency of the State’s evidence in support of this
theory, we consider defendant’s argument that testimony from Harry Smith, an
attorney, and Neil Schori, a counseling pastor at a nondenominational church in
Bolingbrook, should not have been admitted at the pretrial forfeiture hearing. Each
man was allowed to testify, over defendant’s objection, regarding a conversation he
had with Stacy in which she implicated defendant in Kathleen’s death.
¶ 60 Defendant objected to Smith’s testimony based on the attorney-client privilege.
The trial court, however, agreed with the State that defendant lacked standing to
assert the privilege, which belonged to Stacy. Because the appellate court did not
address the sufficiency of the evidence at the pretrial forfeiture hearing, it did not
consider the privilege issue, which the State concedes defendant raised on direct
review.
¶ 61 Defendant now renews his objection to the admission of Smith’s testimony at
the pretrial hearing. Defendant argues that only the client may waive this privilege
and, therefore, in the absence of a waiver by Stacy, whom defendant asserts has
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never been declared legally dead, Smith’s testimony should have been barred.
Defendant argues, in the alternative, that the privilege survives death and, in that
event, Smith yet had an obligation to assert the privilege on Stacy’s behalf. Finally,
defendant argues that the trial court was under a duty to ensure that privileged
communications are not disclosed.
¶ 62 Defendant’s arguments all assume that an attorney-client relationship arose
between Smith and Stacy. The record, however, affirmatively demonstrates that
such a relationship never materialized.
¶ 63 Smith testified that Stacy telephoned him a few days before her disappearance,
and advised that she was seeking a divorce. Smith unequivocally told Stacy that he
“could not represent her.” Smith believed that “there had to be a conflict” in light of
his prior representation of Kathleen. Whether Smith’s assessment of the situation
was correct is irrelevant. What is relevant is that Smith made plain to Stacy that he
“could not represent her.” Where a prospective client continues to communicate
with the attorney after the attorney’s refusal to act for her, she “does not need or
deserve the protection of the privilege.” 8 John H. Wigmore, Evidence § 2304, at
587 (McNaughton rev. ed. 1961); see also 1 Kenneth S. Broun et al., McCormick
on Evidence § 88 n.3, at 540 (7th ed. 2013) (“Of course, statements made after the
employment is declined are not privileged.”); People v. Gionis, 892 P.2d 1199,
1207 (Cal. 1995) (collecting cases and observing that “authorities in other
jurisdictions appear to uniformly hold that the attorney-client privilege does not
protect statements made after an attorney declines employment”). Accordingly,
Stacy’s statements that were made after Smith declined to represent her were not
privileged and were properly admitted and considered at the pretrial forfeiture
hearing.
¶ 64 Smith testified that Stacy told him defendant was “pissed” at her because
defendant thought she had told Tom (one of Kathleen’s and defendant’s sons) that
defendant “killed Kathy.” Stacy also told Smith that she believed defendant was
tracking her via the GPS function on her phone. Smith expressed concern, but Stacy
told him defendant did not know about the cell phone she had used to call him.
Smith further testified:
“At some point, I told her she needs to be careful about what she’s doing. She
told me she had too much expletive on him at the police department so she
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wasn’t concerned for her safety. *** She said, could we get more money out of
[defendant] if we threatened to tell the police about how he killed Kathy. I told
her she could be arrested for something like that.”
Smith testified that during his conversation with Stacy, he heard defendant call to
her and ask what she was doing. When defendant called to Stacy a second time, she
ended the conversation.
¶ 65 As to pastor Neil Schori’s testimony regarding a conversation he had with
Stacy, defendant argued in the trial court that such testimony was barred by the
clergy privilege. This statutory privilege provides in relevant part:
“A clergyman or practitioner of any religious denomination accredited by the
religious body to which he or she belongs, shall not be compelled to disclose in
any court *** a confession or admission made to him or her in his or her
professional character or as a spiritual advisor in the course of the discipline
enjoined by the rules or practices of such religious body or of the religion which
he or she professes, nor be compelled to divulge any information which has
been obtained by him or her in such professional character or as such spiritual
adviser.” 735 ILCS 5/8-803 (West 2008).
¶ 66 The trial court ruled that defendant had no standing to assert the clergy privilege
and Schori’s conversation with Stacy, which occurred in a public setting (a coffee
shop), was not confidential. The appellate court rejected defendant’s challenge to
the admissibility of Schori’s testimony, agreeing with the trial court that the
conversation was not confidential. 2015 IL App (3d) 130157, ¶ 199.
¶ 67 Defendant renews his objection to the admission of Schori’s testimony at the
pretrial forfeiture hearing. The State argues that defendant forfeited review of this
issue because he made only a passing reference to it, in a footnote, in his petition for
leave to appeal. See People v. McCarty, 223 Ill. 2d 109, 122 (2006) (“failure to
raise an issue in a petition for leave to appeal results in the forfeiture of that issue
before this court”); Ill. S. Ct. R. 315(c) (eff. Jan. 1, 2015) (setting forth
requirements for petitions for leave to appeal). A defendant’s forfeiture, however,
is not a jurisdictional bar to this court’s ability to review a matter. People v. Becker,
239 Ill. 2d 215, 239 (2010). “When an issue is not specifically mentioned in a
party’s petition for leave to appeal, but it is ‘inextricably intertwined’ with other
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matters properly before the court, review is appropriate.” Id. (quoting People v.
McKown, 236 Ill. 2d 278, 310 (2010)). Defendant argues this is such a case. We
agree. Because the admissibility of Schori’s testimony is inextricably intertwined
with the trial court’s ultimate ruling as to whether the State met its burden of proof
at the pretrial forfeiture hearing, we will consider the issue.
¶ 68 Defendant argues that whether Schori’s testimony is subject to the clergy
privilege rests on whether the communication was made in confidence (see People
v. Campobello, 348 Ill. App. 3d 619, 636 (2004)) and that Schori himself testified
that confidentiality was intended and mandated by the “traditions of his church.”
Defendant’s argument is belied by the record. During voir dire to determine
whether the privilege applied, Schori testified that “no rules” existed regarding his
counseling sessions and agreed with the prosecutor that “there were no practices or
precepts or customs” of his church to which he was bound with respect to the
confidentiality of counseling sessions. The complete absence of any “traditions” is
plainly revealed in the following exchange between the prosecutor and Schori:
“Q. In other words, there was no practice, no dictate, nothing from your
church that told you what to keep confidential and what not to? That was
basically your decision as the first pastoral counselor at Westbrook Church?
A. That’s correct.
Q. It had nothing to do with you following any precepts, following any
practices, nothing but your own head, correct?
A. That’s correct.”
¶ 69 Because the record fails to support the factual predicate underlying defendant’s
argument that the clergy privilege barred Schori’s testimony, we reject defendant’s
argument and will consider Schori’s testimony in determining whether the State
met its burden of proof at the pretrial forfeiture hearing.
¶ 70 Schori testified that Stacy telephoned him on August 30, 2007, two months
before her disappearance. They arranged to meet at a coffee shop the following day.
Stacy was anxious, very nervous, and tense, and at times she cried during their
meeting. Stacy told Schori that she was afraid of the control defendant had in her
life. “She said that she didn’t believe she could ever get away from him safely.”
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Stacy said she loved her children, including Kathleen’s children, whom she had
adopted, and would never leave without them.
¶ 71 Schori further testified that Stacy told him that on the night Kathleen died, she
and defendant had gone to bed but that she woke up and he was not there. Stacy
looked for defendant in the house and then made several unsuccessful attempts to
reach him on his cell phone. Stacy relayed to Schori that she saw defendant again in
the early morning hours, dressed all in black, carrying a bag. Defendant put the
contents of the bag—women’s clothing—into the washing machine, along with the
clothes he was wearing. Stacy determined that the women’s clothing was not hers.
Stacy told Schori that she was very scared and that defendant coached her for hours
on what to say when the police interviewed her. Stacy said that what she told police
was a lie. When Schori later learned from a coworker that Stacy was missing,
Schori contacted the Illinois State Police.
¶ 72 In addition to the testimony from Smith and Schori, the State presented other
evidence at the pretrial hearing that Stacy and defendant were having serious
marital issues and that Stacy was contemplating a divorce. Sharon Bychowski,
Stacy’s neighbor, testified that she spoke to Stacy the week before Stacy
disappeared. Stacy told Bychowski that she wanted a divorce and was looking for
the right place to bring her children. Stacy also told Bychowski that she had packed
10 boxes of defendant’s things but he had refused to leave. Cassandra Cales, one of
Stacy’s sisters, similarly testified that two days before Stacy’s disappearance, Stacy
told her she wanted a divorce and was telling her friends that she was consulting
with attorneys.
¶ 73 The State also introduced evidence that defendant was aware that Stacy was
seeking a divorce. Thomas Morphey, defendant’s stepbrother, testified that on
Saturday, October 27, 2007, the day before Stacy disappeared, defendant told him
that Stacy was cheating on him, that she wanted a divorce, and that she wanted him
out of the house by Wednesday. Morphey continued:
“[H]e said that *** he was due to retire in 14 working days and she was going to
take everything from him. She was going to take the kids, all the money that he
had earned or half his pension which would mean he would need to then
continue to work for the rest of his life.”
- 24 ­
¶ 74 Special Agent Patrick Callaghan with the Illinois State Police testified that he
interviewed defendant the day after Stacy was reported missing. Defendant told
Callaghan that he and Stacy had not been getting along and that they were talking
about a divorce.
¶ 75 Based on evidence that Stacy was planning to file for divorce, defendant’s
acknowledgment of their marital difficulties and Stacy’s desire for a divorce,
defendant’s concerns about the financial impact of a divorce, and Stacy’s
knowledge about defendant’s involvement in Kathleen’s death, we cannot say that
the trial court’s finding that the State established, by a preponderance of the
evidence, that defendant murdered Stacy, at least in part with the intent to prevent
her from reporting to police defendant’s involvement in Kathleen’s death or
testifying at a reasonably anticipated divorce hearing or a murder trial, was against
the manifest weight of the evidence. The trial court’s finding as to defendant’s
intent was not “unreasonable, arbitrary, or not based on the evidence presented.”
DeLeon, 227 Ill. 2d at 332.
¶ 76 In sum, we find no error in the admission of Kathleen’s and Stacy’s hearsay
statements at trial pursuant to the doctrine of forfeiture by wrongdoing.
¶ 77 II. Ineffective Assistance of Counsel
¶ 78 Defendant next argues that he received ineffective assistance of counsel when
lead defense counsel, Joel Brodsky, called attorney Harry Smith as a witness at
trial, eliciting testimony about Smith’s telephone conversation with Stacy in which
she implicated defendant in Kathleen’s death. Defendant maintains that no sound
strategy existed for calling Smith as a witness. The State argues that the trial and
appellate courts properly rejected defendant’s claim because the decision to call
Smith was a strategic attempt to undermine Neil Schori’s testimony at trial and,
although the strategy ultimately proved unsuccessful, it did not amount to
ineffective assistance of counsel.
¶ 79 Both the United States and Illinois Constitutions guarantee a criminal defendant
the right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill.
Const. 1970, art. I, § 8; People v. Hale, 2013 IL 113140, ¶ 15. A claim that counsel
- 25 ­
provided ineffective assistance is judged under the standard set forth in Strickland
v. Washington, 466 U.S. 668 (1984). People v. Albanese, 104 Ill. 2d 504, 526
(1984) (adopting the Strickland standard). To prevail on a claim of ineffective
assistance of counsel, a defendant must demonstrate that his attorney’s
representation fell below an objective standard of reasonableness and a reasonable
probability exists that, but for counsel’s errors, the result of the proceeding would
have been different. People v. Patterson, 192 Ill. 2d 93, 107 (2000) (citing
Strickland, 466 U.S. at 687). A “ ‘reasonable probability’ ” is “ ‘a probability
sufficient to undermine confidence in the outcome’ ” of the proceeding. People v.
Simpson, 2015 IL 116512, ¶ 35 (quoting Strickland, 466 U.S. at 694). A failure by
the defendant to satisfy either prong of the Strickland standard precludes a finding
of ineffective assistance of counsel. Id.¶ 80 In evaluating defendant’s ineffectiveness claim, we are guided by the
well-established principle that the decision whether to call a certain witness for the
defense is a matter of trial strategy, left to the discretion of counsel after
consultation with the defendant. People v. Clendenin, 238 Ill. 2d 302, 319 (2010);
People v Patterson, 217 Ill. 2d 407, 442 (2005). Accordingly, such decisions will
not ordinarily support a claim of ineffective assistance of counsel. Patterson, 217
Ill. 2d at 442; People v. West, 187 Ill. 2d 418, 432 (1999). Moreover, a mistake in
trial strategy or an error in judgment by defense counsel will not alone render
representation constitutionally defective. People v. Perry, 224 Ill. 2d 312, 355
(2007). “Only if counsel’s trial strategy is so unsound that he entirely fails to
conduct meaningful adversarial testing of the State’s case will ineffective
assistance of counsel be found.” Id. at 355-56; see also People v. Lewis, 2015 IL
App (1st) 122411, ¶ 85 (the strong presumption that counsel’s strategy was sound
may be overcome where counsel’s decisions appear to be so irrational that no
reasonably effective defense attorney in similar circumstances would pursue such a
strategy).
¶ 81 Defendant argues that the record here is silent as to counsel’s strategy in calling
Smith as a witness. If true, defendant’s claim of ineffective assistance of counsel
might be better suited to collateral proceedings, such as postconviction review,
where defendant and the State would have an opportunity to develop a factual
record bearing on the issue. See People v. Veach, 2017 IL 120649, ¶¶ 44-46. Our
review of the record, however, reveals that it is not silent. At a hearing during trial,
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counsel disclosed that his strategy in calling Smith as a witness was to attack
Stacy’s credibility generally, as well as to undermine Schori’s testimony by
providing a motive for Stacy to fabricate her claim that defendant was involved in
Kathleen’s death. The trial record bears out this strategy.
¶ 82 At trial, Neil Schori testified for the State, recounting his August 30, 2007,
meeting with Stacy at a coffee shop in Bolingbrook. Schori’s trial testimony
tracked his testimony at the pretrial forfeiture hearing. Schori testified that Stacy
tearfully told him that one night she and defendant went to bed together. When
Stacy awoke in the middle of the night, defendant was not in the house, and she was
unsuccessful in contacting him by phone. Stacy next saw defendant in the early
morning hours, standing at the washing machine dressed all in black, carrying a
bag. Defendant placed the clothes he was wearing, along with the contents of the
bag, into the washing machine and walked away. Stacy looked inside the washing
machine and saw women’s clothing that did not belong to her. Afterwards,
defendant worked with Stacy for hours, telling her what to say to the police when
they interviewed her. Stacy told Schori that she lied to the police on defendant’s
behalf.
¶ 83 On cross-examination, defense counsel Joseph Lopez engaged in a line of
questioning designed to demonstrate that Schori did not believe Stacy when she
essentially told him that defendant had killed his ex-wife, Kathleen. Lopez’s
questioning highlighted that Schori did nothing to prevent Stacy from returning to
the residence she shared with defendant, a purported murderer; never made any
follow-up calls to Stacy; did not meet with her again; and did not reach out to the
Savio family or law enforcement officials, even anonymously, with the information
Stacy had shared. Although Schori testified at trial that he believed Stacy, Lopez
impeached him with his testimony from the pretrial hearing that it was “possible”
that Stacy had lied to him.
¶ 84 During defendant’s case in chief, counsel called several witnesses, one of
whom was Harry Smith. Under questioning from attorney Brodsky, Smith testified
about his telephone conversation with Stacy in late October 2007. Stacy told Smith
that she wanted to leave the state with the children and that she had information
about defendant that she thought might benefit her in that regard. More specifically,
Stacy “wanted to know if the fact [defendant] killed Kathleen” could be used as
- 27 ­
leverage in divorce proceedings. The jury also learned that Smith had previously
testified that Stacy had asked him, “could we get more money out of [defendant] if
we threatened to tell the police about how he killed Kathy,” and that Stacy had told
him “she had so much S-H-I-T on [defendant] at the police department that he
couldn’t do anything to her.” Smith conceded on direct examination that Stacy had
not suggested going to the police. On cross-examination, Smith agreed that Stacy
had inquired about getting more money out of defendant by threatening to tell
police not only that he killed Kathleen but “how” he killed Kathleen. On redirect,
Smith testified that he told Stacy to be careful because she could be arrested. Smith
explained that he was referring not to extortion but concealment of a homicide.
¶ 85 In closing argument, Lopez continued the theme that Stacy had lied about
defendant’s involvement in Kathleen’s death simply to gain an advantage in the
divorce and that Schori and Smith did not believe her. Lopez argued that Stacy
knew that Kathleen’s death had been investigated and was found to be an accident
but that she “twist[ed]” it into a homicide by starting a “campaign of lies” to
“squeeze [defendant] out of money.” Lopez argued that this was why Stacy did not
go to the police. Lopez further argued that when it appeared to Stacy that Smith did
not believe her, she came up with one “last thing,” i.e., “something on the
Bolingbrook Police Department,” which was part of her “campaign of lies.”
¶ 86 Defendant raised his ineffectiveness claim in his posttrial motion. The trial
court rejected defendant’s claim, noting that the decision whether to call Smith was
a “balancing test.” The court explained:
“Was it more important to show and destroy Stacy’s testimony by the fact she
was willing to commit a felony to get at the defendant, to threaten him, to get
money from him as opposed to the counter weight of the statement of how he
had killed Kathy.
*** I cannot say that demonstrating that Stacy was an avaricious
extortionist willing to commit a felony was not in some circumstance a
conceivably sound strategy.”
¶ 87 The appellate court also rejected defendant’s ineffectiveness claim, finding that
the decision to call Smith was clearly a matter of trial strategy “as defense counsel
was seeking to discredit the impression of Stacy that Schori’s testimony had given
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to the jury.” 2015 IL App (3d) 130157, ¶ 224. The appellate court rejected
defendant’s ineffectiveness claim for the additional reason that defendant had not
established the prejudice prong of the Strickland standard. Id. ¶ 225. The appellate
court found that the potentially damaging portion of Smith’s testimony—that Stacy
stated defendant had killed Kathleen—was largely cumulative to the testimony
provided by Schori. The appellate court could not say that but for the decision to
call Smith, there was a reasonable probability that the result of defendant’s trial
would have been different. Id.
¶ 88 Based on our review of the record in this case, we conclude that defendant has
failed to demonstrate that counsel’s decision to call Smith as a witness at trial was
“not within the realm of trial strategy.” Perry, 224 Ill. 2d at 355. Whereas Schori’s
trial testimony portrayed Stacy as an emotional young wife and mother burdened
with the knowledge that her husband was involved in Kathleen’s death, defendant
sought to demonstrate, through Smith’s testimony, that Stacy fabricated her
allegations against defendant simply to obtain leverage in future divorce
proceedings, i.e., that Stacy would lie to extort money from defendant. Although
this strategy did not result in a favorable verdict, we must make every effort to
eliminate “the distorting effects of hindsight.” Strickland, 466 U.S. at 689. We may
not conclude that a particular strategy or tactic was unreasonable simply because it
has proved unsuccessful. Id. “There are countless ways to provide effective
assistance in any given case. Even the best criminal defense attorneys would not
defend a particular client in the same way.” Id.¶ 89 Because defendant has not satisfied the first prong of the Strickland
standard—that counsel’s representation fell below an objective standard of
reasonableness—we reject defendant’s ineffectiveness claim. See Simpson, 2015
IL 116512, ¶ 35 (failure to satisfy either prong of the Strickland standard precludes
a finding of ineffective assistance of counsel).
¶ 90 III. Admission of Allegedly Privileged Communications
¶ 91 Defendant makes the additional and independent argument that the trial court
erred in allowing the defense to call Harry Smith as a witness at trial because
Smith’s conversation with Stacy was subject to the attorney-client privilege. As
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already discussed in part I supra, Stacy’s conversation with Smith, after Smith
declined representation, was not subject to the attorney-client privilege. Thus, we
need not consider this issue further.
¶ 92 IV. Per Se Conflict of Interest
¶ 93 Defendant next argues that his conviction must be reversed and his case
remanded for a new trial because defense counsel Brodsky was operating under a
per se conflict of interest when he entered into a media contract.
¶ 94 Relevant to this issue, the record discloses that on November 14, 2007,
defendant appeared on NBC’s Today Show. At the time of his television
appearance, Stacy had been missing for over two weeks, Kathleen’s body had been
exhumed, and one of two additional autopsies had been performed. During the
Today Show appearance, defendant stated his belief that his silence had painted
him guilty in the media. Defendant also expressed concern about the anticipated
expense of a legal defense, and asked the “attorneys of America” for help. “If
anybody would like to take my case and help me out here, please call.” Brodsky
responded, and an attorney-client relationship was formed shortly thereafter in
mid-November 2007.
¶ 95 A month later, on December 16, 2007, Brodsky and defendant entered into a
media contract with Selig Multimedia, Inc. The contract provided that, in exchange
for a 15% commission, Selig Multimedia would
“render all services customarily performed by persons rendering publicity and
promotional services in the entertainment industry, including, without limited
[sic] to, soliciting, procuring and/or negotiating appearances, product
endorsements (including commercials), photo opportunities and/or interviews
for Peterson and/or Brodsky on television shows, news related television
shows, talk shows, panel shows, reality shows and/or any other live or taped
appearances, and/or in magazines, newspapers and/or tabloids ***, and/or
soliciting, procuring, and/or negotiating book deals for Peterson and/or
Brodsky ***.”
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¶ 96 Brodsky’s testimony at the hearing on defendant’s posttrial motion established
that revenue generated under this agreement was limited to a little more than
$15,900, consisting of a $10,000 payment in late February 2008 from ABC, two
payments from ABC in early March 2008 totalling $1500, and a $5901.18 payment
in late March 2008 from an unidentified publisher. Brodsky testified that the
publisher’s payment was for a “book that Mr. Peterson I guess authored or
co-authored regarding his case.” Brodsky deposited all revenue into a client trust
account and used it to pay his fees and expenses for representing defendant.
¶ 97 By its own terms, the media contract expired on December 15, 2008,
approximately five months before defendant was indicted for Kathleen’s murder.
¶ 98 The trial court rejected defendant’s conflict-of-interest argument. The court
stated during its oral ruling that the idea that someone needs to get ahead of a news
story is not unusual, and “if Mr. Brodsky and Mr. Peterson believed that the best
way to address his matter preindictment was to get ahead of this story, *** by
seeking out media attention and somebody that would assist you to do that again is
not unusual.” The trial court concluded that the existence of the media contract did
not prevent defendant from presenting a defense, receiving a fair trial, or receiving
the effective assistance of counsel.
¶ 99 On direct review, the appellate court also rejected defendant’s argument. 2015
IL App (3d) 130157, ¶ 217. The appellate court held that the alleged conflict
created by the media contract did not fall within any of the categories of per se
conflicts established by this court and, regardless of whether Brodsky’s conduct in
entering into the media contract constituted a violation of the Illinois Rules of
Professional Conduct, no per se conflict of interest arose. Id. The appellate court
also held that People v. Gacy, 125 Ill. 2d 117 (1988), on which defendant relied, did
not mandate that a per se conflict of interest be found in this case. 2015 IL App (3d)
130157, ¶ 218. The appellate court explained:
“Although our supreme court indicated in Gacy that a per se conflict of interest
might very likely arise if the defense attorney enters into a book deal about the
case during the course of the representation, it did not involve or address a
situation such as that involved in the present case—where a potential defendant
and his attorney, acting in concert, jointly enter into a media rights contract with
a media company prior to criminal charges being brought against the potential
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defendant as a strategy to try to head off a possible indictment by getting ahead
of the story in the media.” Id.¶ 100 Defendant argues that the appellate court misconstrued Gacy and failed to take
into account that the media contract was a clear violation of Rules 1.7 and 1.8 of the
Illinois Rules of Professional Conduct. The State argues, in line with the appellate
court, that Gacy did not hold that the existence of a media contract creates a per se
conflict of interest and that this court should be circumspect about recognizing such
a rule. The State also argues that any alleged violation by Brodsky of the Illinois
Rules of Professional Conduct is a matter for the Attorney Registration and
Disciplinary Commission.
¶ 101 The parties agree that the facts relevant to the conflict-of-interest issue are not
in dispute. Accordingly, the issue is one of law, which we review de novo. People v.
Fields, 2012 IL 112438, ¶ 19.
¶ 102 A criminal defendant’s sixth amendment right to the effective assistance of
counsel includes the right to conflict-free representation. People v. Nelson, 2017 IL
120198, ¶ 29; Fields, 2012 IL 112438, ¶ 17. Such representation means “assistance
by an attorney whose allegiance to his client is not diluted by conflicting interests
or inconsistent obligations.” People v. Spreitzer, 123 Ill. 2d 1, 13-14 (1988). Two
categories of conflict of interest exist: per se and actual. Fields, 2012 IL 112438,
¶ 17.
¶ 103 A per se conflict of interest exists where “facts about a defense attorney’s status
*** engender, by themselves, a disabling conflict.” (Emphasis in original.)
Spreitzer, 123 Ill. 2d at 14; accord Fields, 2012 IL 112438, ¶ 17. Pursuant to
long-standing precedent, this court has recognized that a per se conflict of interest
exists in the following situations: “(1) where defense counsel has a prior or
contemporaneous association with the victim, the prosecution, or an entity assisting
the prosecution; (2) where defense counsel contemporaneously represents a
prosecution witness; and (3) where defense counsel was a former prosecutor who
had been personally involved with the prosecution of defendant.” Fields, 2012 IL
112438, ¶¶ 18, 41. 5 The justification for treating these conflicts as per se conflicts
5
Peculiar to juvenile prosecutions, we have also held that a per se conflict of interest arises
when defense counsel also acts as guardian ad litem. People v. Austin M., 2012 IL 111194, ¶¶ 83-86.
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is that, in each situation, the defense counsel’s association or tie to the victim, the
prosecution, or a prosecution witness may have subtle or subliminal effects on
counsel’s performance that are difficult to detect and demonstrate. People v.
Austin M., 2012 IL 111194, ¶ 81; People v. Hernandez, 231 Ill. 2d 134, 143 (2008);
People v. Washington, 101 Ill. 2d 104, 110-11 (1984).
¶ 104 Unless a defendant waives his right to conflict-free representation, the
existence of a per se conflict of interest is grounds for automatic reversal. Fields,
2012 IL 112438, ¶ 18; Hernandez, 231 Ill. 2d at 143. In other words, where a per se
conflict exists, a defendant need not show that counsel’s performance was in any
way affected by the existence of the conflict. Id.¶ 105 Where a defendant has not established that a per se conflict of interest arose,
reversal of the defendant’s conviction requires a showing of an actual conflict.
Austin M., 2012 IL 111194, ¶ 81. To succeed on an actual conflict-of-interest
claim, the defendant must establish that the conflict adversely affected counsel’s
performance. Id. ¶ 82.
¶ 106 Defendant here argues that defense counsel Brodsky labored under a per se
conflict of interest when he entered into the contract with Selig Multimedia. In
essence, defendant is asking this court to recognize a new situation, in addition to
those identified above, under which a per se conflict of interest would arise. In
support, defendant cites our opinion in Gacy.
¶ 107 In Gacy, we considered the defendant’s pro se postconviction claim that a
conflict of interest arose when defense counsel was offered a $6 million book deal.
Counsel declined the offer, but the defendant maintained that “ ‘the seed was
planted as to how much money was or could be made’ ” and from that point
forward, counsel was more concerned about keeping records of the case than
preparing the defense. Gacy, 125 Ill. 2d at 134. We declined to find either a per se
conflict of interest, or an actual conflict of interest. Id. at 136.
¶ 108 Although we recognized that an attorney’s acquisition of a financial stake in the
litigation directly adverse to the client’s interests would give rise to a per se
conflict, we held that the mere fact that defense counsel was offered but declined a
book deal was an insufficient basis on which to find such a conflict. Id. at 135-36.
We also held that the defendant failed to establish an actual conflict because the
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defendant failed to point to specific identifiable deficiencies in counsel’s
performance resulting from counsel’s recordkeeping, which itself had legitimate
purposes. Id. at 136.
¶ 109 Gacy did not consider a media contract like the one at issue here, and nothing in
Gacy signals that an attorney who, with his client, enters into such a contract
necessarily acquires a financial stake in the case “directly adverse” to the client’s
interests. Id. at 135. At most, Gacy intimates that where defense counsel accepts a
book deal or acquires other publication rights during the course of his
representation, a per se conflict of interest might arise. That did not occur in this
case. Thus, defendant’s reliance on Gacy is misplaced.
¶ 110 Defendant also argues that a per se conflict of interest arose because defense
counsel’s conduct in entering into the media contract was a clear violation of Rules
1.7 and 1.8 of our Rules of Professional Conduct. The version of Rule 1.7 that was
in effect at the time Brodsky and defendant entered into the contract with Selig
Multimedia prohibited a lawyer from representing a client if such representation
“may be materially limited *** by the lawyer’s own interests, unless: (1) the lawyer
reasonably believes the representation will not be adversely affected; and (2) the
client consents after disclosure.” Ill. R. Prof’l Conduct R. 1.7(b) (eff. Aug. 1, 1990).
Rule 1.8 also prohibited an attorney from entering into any arrangement with a
client “by which the lawyer acquires an interest in publication, media, or other
literary rights with respect to the subject matter of employment,” unless the
employment has been concluded. Ill. R. Prof’l Conduct R. 1.8(b) (eff. Aug. 1,
1990). 6
¶ 111 Whether defense counsel’s conduct in entering into the media contract violated
the foregoing rules is not as clear as defendant maintains. We observe, for example,
that although defense counsel’s acquisition of publication rights during the course
of representing defendant would have violated Rule 1.8, the media contract at issue
here did not, itself, create such rights. Indeed, the contract focused primarily on
generating publicity through television appearances and the print media
6
The Illinois Rules of Professional Conduct, adopted February 8, 1990, and effective August 1,
1990, which were in effect at the time of the entry of the media contract, have been repealed and
replaced by the Illinois Rules of Professional Conduct of 2010, effective January 1, 2010.
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preindictment. Thus, some uncertainty exists as to whether this type of media
contract falls squarely within the prohibition of Rule 1.8.
¶ 112 We also observe that defendant’s claim that counsel’s entry into the contract
violated Rule 1.7 is not well documented in the record. Defendant maintains that no
strategic purpose existed to enter into the media contract and that Brodsky was
motivated by the “five-star hotel stays, meals, and spa treatments for him and his
wife, along with cash and other benefits” that they received in conjunction with the
personal appearances. These assertions, if true, might be indicative that defense
counsel’s representation was “materially limited” by counsel’s “own interests,” in
violation of Rule 1.7. But the only citation to the record defendant provides in
support of these assertions is citation to oral argument by another member of his
defense team during the hearing on defendant’s posttrial motion. We will not rely
on factual assertions made in a party’s own argument that are not otherwise
established in the record. See People v. Barner, 2015 IL 116949, ¶ 69 n.4 (“We
obviously cannot rely upon a factual representation made in the background section
of a party’s own motion which cannot be independently established in the
record.”).
¶ 113 In sum, even if we accept defendant’s argument that a clear violation of Rules
1.7 and 1.8 could give rise to a per se conflict of interest, any conclusion by this
court as to a rule violation in this case would be completely speculative. Indeed, the
proper forum to resolve a claim that counsel has violated our Rules of Professional
Conduct is the Attorney Registration and Disciplinary Commission, whose
officers, acting as the agents of this court, administer the disciplinary functions that
we have delegated to them. In re Mitan, 75 Ill. 2d 118, 123-24 (1979); see also Ill.
S. Ct. R. 751(a) (eff. Jan. 17, 2013) (attorney disciplinary proceedings “shall be
under the administrative supervision of an Attorney Registration and Disciplinary
Commission”); People v. Camden, 210 Ill. App. 3d 921, 926 (1991) (“Attorney
disciplinary proceedings are conducted by the ARDC completely separate and
apart from the judicial proceedings in which the attorney misconduct was alleged to
have occurred.”).
¶ 114 For these reasons, we reject defendant’s argument that a per se conflict of
interest arose in this case. We will not expand the situations already recognized by
this court in which a per se conflict of interest exists.
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¶ 115 In the absence of a per se conflict of interest, reversal of defendant’s conviction
requires a showing of an actual conflict of interest. Austin M., 2012 IL 111194,
¶ 81. Defendant, however, has not argued below or in this court that an actual
conflict of interest arose when counsel entered into the media contract.
Accordingly, defendant has forfeited any such argument. See People v. Denson,
2014 IL 116231, ¶ 11; People v. Williams, 235 Ill. 2d 286, 298 (2009).
¶ 116 V. Evidence of Prior Bad Acts
¶ 117 Defendant next argues that the trial court abused its discretion and committed
reversible error when it allowed the State to introduce bad-acts evidence,
notwithstanding the State’s failure to comply with the notice requirements of
Illinois Rule of Evidence 404. This rule allows the admission of bad-acts or
other-crimes evidence under certain circumstances but requires the State to disclose
its intent to introduce such evidence “at a reasonable time in advance of trial, or
during trial if the court excuses pretrial notice on good cause shown.” Ill. R. Evid.
404(c) (eff. Jan. 1, 2011).
¶ 118 The bad-acts evidence at issue here involved the testimony of Jeffrey Pachter.
As discussed in part I supra, Pachter testified at the pretrial forfeiture hearing
regarding a conversation with defendant in the winter of 2003, during which
defendant offered him $25,000 to find someone that could have his “third wife
taken care of.” Prior to trial, the State filed a motion to admit bad-acts or
other-crimes evidence but did not reference Pachter’s testimony in that motion. The
State, however, included Pachter’s name on its witness list that was provided to
defendant on July 24, 2012.
¶ 119 On July 31, 2012, during the State’s opening statement at trial, the State told the
jury that defendant had a conversation with a friend “where he offered him
$25,000.” Before the State could go any further, defendant objected. At a side bar,
defendant argued that Pachter’s testimony was evidence of a prior bad act that the
State had not included in its pretrial motion and Pachter’s testimony was thus
inadmissible. Defendant urged the court to declare a mistrial. The trial court
sustained defendant’s objection but would not declare a mistrial. The State
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completed its opening statement without further reference to defendant’s
conversation with Pachter, and the trial proceeded.
¶ 120 Two days later, on August 2, 2012, the State filed a motion in limine to admit
Pachter’s testimony at trial. The State, relying on People v. Morales, 2012 IL App
(1st) 101911, ¶ 25, argued that evidence of defendant’s offer to pay Pachter
$25,000 to have his wife killed was part of defendant’s “course of conduct” leading
up to the crime charged and, as such, it was “intrinsic evidence” of the charged
offense and not subject to the notice requirement of Illinois Rule of Evidence 404.
The State argued in the alternative that even if Pachter’s testimony was evidence of
a prior bad act, the State had provided constructive notice to defendant. The State
explained:
“In this case, in 2010 the People disclosed Pachter’s name, statements, a
summary of the substance of the testimony, and in fact, his testimony was part
of the 2010 [forfeiture] hearing, wherein defendant had an opportunity to
cross-examine the witness. Pachter’s name is on the People’s trial witness list.
This satisfies the notice requirement of Rule 404 ***.”
¶ 121 After briefing and argument, on August 14, 2014, the trial court ruled that
testimony regarding defendant’s alleged offer to pay $25,000 to have Kathleen
killed was evidence of a prior bad act subject to the notice requirements of Illinois
Rule of Evidence 404. The State maintained, however, that its late notice should be
excused in light of its reasonable but mistaken belief that the evidence was not
subject to Rule 404, as well as its provision of constructive notice to defendant of
Pachter’s testimony. The trial court ultimately concluded that good cause had been
shown, and the court extended the deadline for providing notice to defendant to
August 14, 2012. Thus, the State’s August 2, 2012, notice to defendant, provided in
its motion in limine, was timely.
¶ 122 A week later, on August 21, 2012, after a hearing, the trial court ruled that the
State could introduce Pachter’s testimony at trial as evidence of defendant’s intent.
See Ill. R. Evid. 404(b) (eff. Jan. 1, 2011) (bad-acts evidence may be admissible “as
proof of *** intent”). The next day, the State called Pachter as a witness at trial.
Defendant did not request a continuance. On direct examination, Pachter testified
that defendant asked him, during a ride along in his police vehicle, if Pachter “could
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find someone to take care of his third wife.” Defendant requested a sidebar, after
which the court admonished the jury as follows:
“Ladies and gentlemen, the following instruction is applicable to the testimony
that’s about to be elicited, and evidence is going to be received that the
defendant has been involved in conduct other than that charged in the
indictment. This evidence will be received on the issue of the defendant’s
intent, and it may be considered by you only for that limited purpose. It’s for
you to determine whether the defendant was involved in the conduct, and, if so,
what weight should be given to this evidence on the issue of intent.”
The State completed its examination of Pachter. Defendant conducted a lengthy
cross-examination, challenging Pachter’s credibility and suggesting that Pachter
did not, in any event, take defendant’s alleged offer seriously.
¶ 123 In his posttrial motion and again on direct review, defendant unsuccessfully
challenged the admission of Pachter’s testimony at trial. 2015 IL App (3d) 130157,
¶ 210. The appellate court held that the trial court did not abuse its discretion,
noting that Pachter’s testimony was not presented until August 22, 2012, a full 20
days after the State gave notice, defendant did not request a continuance, and
defendant fully examined Pachter. Id.¶ 124 Illinois Rule of Evidence 404 provides in relevant part:
“(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action
in conformity therewith ***. Such evidence may also be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, or absence of mistake or accident.
(c) In a criminal case in which the prosecution intends to offer evidence
under subdivision (b), it must disclose the evidence, including statements of
witnesses or a summary of the substance of any testimony, at a reasonable time
in advance of trial, or during trial if the court excuses pretrial notice on good
cause shown.” Ill. R. Evid. 404 (eff. Jan. 1, 2011).
¶ 125 A trial court’s ruling on a motion to admit other-crimes evidence is reviewed
for an abuse of discretion. People v. Chapman, 2012 IL 111896, ¶ 19; People v.
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Donoho, 204 Ill. 2d 159, 182 (2003). The question is not whether the reviewing
court would have made the same decision if it were acting as the trial court. Rather,
the question is whether the trial court’s decision is “arbitrary, fanciful, or
unreasonable to the degree that no reasonable person would agree with it.” People
v. McDonald, 2016 IL 118882, ¶ 32. The abuse-of-discretion standard of review is
highly deferential. Lerma, 2016 IL 118496, ¶ 32. Thus, we will not reverse the trial
court’s ruling here absent a clear abuse of that discretion. People v. Dabbs, 239 Ill.
2d 277, 284 (2010).
¶ 126 We note that defendant does not challenge the trial court’s ruling that Pachter’s
testimony was admissible as evidence of defendant’s intent. Rather, defendant only
challenges the trial court’s decision to excuse the State’s failure to provide pretrial
notice under Rule 404. As to that issue, defendant first argues that the trial court’s
initial ruling barring the State from introducing Pachter’s testimony “reassured” the
defense that Pachter’s testimony would not be admitted and that the defense was
“unprepared” for the trial court’s “about face” on this matter. The fact that
defendant did not anticipate the trial court’s ultimate ruling is not a basis for finding
an abuse of discretion. Moreover, the trial court’s so-called “about face” occurred
only after the State’s motion to admit Pachter’s testimony had been fully briefed
and argued by the parties and after the court carefully considered the applicability
of Rule 404, the existence of good cause, and the general admissibility of Pachter’s
testimony.
¶ 127 Defendant next argues that the trial court erroneously equated the provision of
“constructive notice” with the establishment of “good cause” under Rule 404. The
record discloses that although the trial court considered the State’s argument that it
provided constructive notice to defendant of its intent to introduce bad-acts
evidence through Jeffrey Pachter, the trial court did not equate the two concepts.
¶ 128 Finally, defendant argues that the trial court’s ruling eviscerated the purpose of
Rule 404’s pretrial notice requirement, namely, to prevent prejudice by giving the
defense time to prepare its own case around the bad-acts evidence. In support,
defendant cites United States v. Skoczen, 405 F.3d 537 (7th Cir. 2005). There, the
federal court of appeals agreed with the defendant that the government should have
provided proper pretrial notice of its intent to introduce bad-acts evidence at trial,
stating that “[t]he point of the pretrial notice is to prevent undue prejudice and
- 39 ­
surprise by giving the defendant time to meet such a defense.” Id. at 548. The court
of appeals noted, however, that the defendant had not explained how he was
prejudiced by the lack of notice and observed that the defendant “could have asked
for a continuance, but he did not.” Id. The court of appeals ultimately found no
reversible error in the district court’s decision to admit the bad-acts evidence. Id.¶ 129 Here, defendant suggests that he had inadequate time to prepare for Pachter’s
testimony. But defendant was already aware of the substance of Pachter’s
testimony, since Pachter had previously testified at the pretrial forfeiture hearing.
Moreover, like defendant Skoczen, defendant did not ask for a continuance for
further preparation, and as the appellate court observed, defendant appears to have
fully cross-examined Pachter about his conversation with defendant and about
matters related to Pachter’s credibility. 2015 IL App (3d) 130157, ¶ 210. Under
these circumstances, we find no abuse of discretion in the trial court’s ruling.
¶ 130 VI. Cumulative Error
¶ 131 Having rejected defendant’s claims of error, we need not consider defendant’s
argument that cumulative error denied him a fair trial.
¶ 132 CONCLUSION
¶ 133 For the reasons discussed above, we affirm the judgment of the appellate court
affirming defendant’s conviction and sentence for the first degree murder of
Kathleen Savio.
¶ 134 Affirmed.
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