People v. Peterson

968 N.E.2d 204

360 Ill.Dec. 125

The PEOPLE of the State of Illinois, Plaintiff–Appellant,

v.Drew PETERSON, Defendant–Appellee.

No. 3–10–0514.

Appellate Court of Illinois, Third District.

April 12, 2012.

James Glasgow, State's Attorney (argued), Joliet (Colleen M. Griffin, Assistant State's Attorney (argued), of counsel), for the People.

Steven A. Greenberg (argued), Steven A. Greenberg, Ltd., Joseph R. Lopez, Attorney at Law, Joel A. Brodsky, Brodsky & Odeh, Ralph E. Meczyk, Darryl Goldberg, Lisa M. Lopez, Chicago, for appellee.

OPINION

Justice HOLDRIDGE delivered the judgment of the court, with opinion.

[360 Ill.Dec. 127]¶ 1 The defendant, Drew Peterson, was charged with two counts of first degree murder (720 ILCS 5/9–1(a)(1), (a)(2) (West 2004)) in connection with the death of Kathleen Savio. During pretrial matters, the circuit court issued several rulings on the admissibility of evidence the State intended to present at trial. The State filed five appeals from these rulings—Nos. 3–10–0513, 3–10–0514, 3–10–0515, 3–10–0546, and 3–10–0550, which this court consolidated.

¶ 2 In one of these appeals, No. 3–10–0514, the State argued that the circuit court erred when it denied the State's motion in limine to admit certain hearsay statements under the common law doctrine of forfeiture by wrongdoing. A divided panel of this court held, inter alia, that we lacked jurisdiction to hear that appeal because it was untimely. People v. Peterson, 2011 IL App (3d) 100513, ¶ 75, 351 Ill.Dec. 899, 952 N.E.2d 691. The State filed a petition for leave to appeal in the Illinois Supreme Court. Our supreme court denied the State's petition. People v. Peterson, 354 Ill.Dec. 541, 958 N.E.2d 284 (Ill.2011). However, in the exercise of its supervisory authority, our supreme court directed us to vacate our judgment and to address the State's appeal on the merits, vesting us with jurisdiction ¹ over the State's appeal. Upon consideration of the merits of appeal No. 3–10–0514, we reverse the circuit court's judgment and remand for further proceedings.

¶ 3 FACTS

¶ 4 On March 1, 2004, Kathleen Savio, the defendant's third wife, was found dead in her bathtub. At the time of her death, the Illinois State Police conducted an investigation into Kathleen's death and a pathologist performed an autopsy. The pathologist concluded that Kathleen had drowned but did not opine on the manner of death. A coroner's jury subsequently determined that the cause of death was accidental drowning. No charges were filed in connection with her death.

¶ 5 Several months before Kathleen's death, the judge presiding over divorce proceedings between Kathleen and the defendant entered a bifurcated judgment for dissolution of their marriage. The court's judgment reserved issues related to matters such as property distribution, pension, and support. A hearing on those issues had been scheduled for April 2004.

¶ 6 The defendant's fourth wife, Stacy Peterson, disappeared on October 27, 2007. Stacy and the defendant had been discussing a divorce. Following Stacy's disappearance, Kathleen's body was exhumed and two additional autopsies were conducted. The pathologists who conducted the autopsies concluded that Kathleen's death was a homicide.

¶ 7 On May 7, 2009, the State charged the defendant with the murder of Kathleen. During pretrial proceedings, the defendant contested the admissibility of some of the evidence the State intended to present at trial. At issue in this appeal are the court's rulings that pertained to the State's motions in limine to admit certain hearsay statements allegedly made by Kathleen and Stacy.

¶ 8 On January 4, 2010, the State filed a motion in limine arguing that 11 statements made by Kathleen and 3 ² statements made by Stacy were admissible under section 115–10.6 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115–10.6 (West 2008) (hearsay exception for the intentional murder of a witness)) and under the common law doctrine of forfeiture by wrongdoing. Section 115–10.6 of the Code provides that “[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 [s]ection 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.” 725 ILCS 5/115–10.6(a) (West 2008). The statute requires the circuit court to conduct a pretrial hearing to determine the admissibility of any statements offered pursuant to the statute. 725 ILCS 5/115–10.6(e) (West 2008). During the hearing, the proponent of the statement bears the burden of establishing by a preponderance of the evidence: (1) that the adverse party murdered the declarant and that the murder was intended to cause the unavailability of the declarant as a witness; (2) that the time, content, and circumstances of the statements provide “sufficient safeguards of reliability”; and (3) that “the interests of justice will best be served by admission of the statement into evidence.” 725 ILCS 5/115–10.6(e) (West 2008). The circuit court must make “specific findings as to each of these criteria on the record” before ruling on the admissibility of the statements at issue. 725 ILCS 5/115–10.6(f) (West 2008). The statute provides that it “in no way precludes or changes the application of the existing common law doctrine of forfeiture by wrongdoing.” 725 ILCS 5/115–10.6(g) (West 2008). The common law doctrine of forfeiture by wrongdoing provides a hearsay exception for statements made by an unavailable witness where the defendant intentionally made the witness unavailable in order to prevent her from testifying. People v. Hanson, 238 Ill.2d 74, 345 Ill.Dec. 395, 939 N.E.2d 238 (2010); People v. Stechly, 225 Ill.2d 246, 272–73, 312 Ill.Dec. 268, 870 N.E.2d 333 (2007).

¶ 9 The State asked the circuit court to conduct a hearing to determine the admissibility of these hearsay statements under both the statute and the common law doctrine of forfeiture by wrongdoing and sought the admission of the statements under both the statute and the common law. In January and February 2010, the circuit court held an evidentiary hearing on the State's motion. The State argued, inter alia, that the defendant killed Kathleen with the intent of preventing her testimony at the hearing on the distribution of the marital property. The State also argued that the defendant killed Stacy with the intent of preventing her testimony not only at a future divorce and property distribution hearing, but also at a trial for Kathleen's murder. Seventy-two witnesses testified at the hearing, including three pathologists. Two pathologists testified for the State that Kathleen's death was a homicide. The defense's pathologist disagreed with the State's pathologist's conclusions and testified that Kathleen had drowned accidentally.

¶ 10 The circuit court took the matter under advisement and issued its written ruling on May 18, 2010. Applying the statutory criteria, the court found that the State had proved by a preponderance of the evidence that: (1) the defendant murdered Kathleen and Stacy; and (2) he did so with the intent to make them unavailable as witnesses. Further, the court found that, pursuant to the statute, 6 of the 14 proffered hearsay statements contained sufficient “safeguards of reliability” and that the interests of justice would be served by the admission of those statements into evidence.³ However, the circuit court excluded the remaining eight hearsay statements proffered by the State because it found that those statements did not meet the statutory standard of reliability and that the interests of justice would not be served by their admission.⁴

¶ 11 The circuit court's May 18, 2010, order failed to address whether any of the proffered statements were admissible under the common law doctrine of forfeiture by wrongdoing, as the State had requested in its motion. On May 28, 2010, the defendant filed a motion to clarify the circuit court's ruling. The defendant's motion asked the court to clarify whether it ruled under the common law doctrine. During a hearing held the same day, the court stated, “I didn't even get to that. There was no request as to any of the others. I ruled strictly pursuant—there was a hearing pursuant to the statute.”

¶ 12 On June 30, 2010, the State filed another motion to admit the hearsay statements in which the State asked the court to reconsider its decision to exclude the statements and again requested the circuit court to rule on the admissibility of the same hearsay statements under the common law doctrine of forfeiture by wrongdoing. The defendant objected that the State's motion to reconsider was untimely because the State did not file the motion within 30 days of the circuit court's May 18 order. At a hearing on July 2, the court stated that it believed section 115–10.6 of the Code codified the common law doctrine and that “[i]f the common law is codified, the codification is what rules.” On July 6, the court issued an order denying the State's motion, which it described as a motion to reconsider the May 18 ruling. The court's order did not address the defendant's argument that the State's motion was untimely or provide any specific reasons for its ruling. Two days later, however, the court stated that its ruling was based on its belief that a statute that codifies the common law takes precedence over the common law unless the statute is declared unconstitutional or otherwise invalidated.

[360 Ill.Dec. 131]¶ 13 The State appealed the circuit court's May 18, 2010, order and its July 6 denial of the State's motion to reconsider that order (No. 3–10–0514). The defendant moved to dismiss the State's appeal as untimely. The defendant argued that the State's appeal was jurisdictionally defective because the State had failed to file either a motion to reconsider or a notice of appeal within 30...