People v. Peterson

2017 IL 120331

IN 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.

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

Kathleen’s residence. During defendant’s marriage to Stacy, the couple had another

child, a girl.

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¶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

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,

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(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

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

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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.

(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

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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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 73 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.

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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

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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 pretrial hearing,

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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

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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

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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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