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The People of the State of Illinois v. Drew Peterson

July 26, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLANT,
v.
DREW PETERSON,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. Circuit No. 09--CF--1048 Honorable Stephen D. White, Judge, Presiding.

The opinion of the court was delivered by: Justice Holdridge

2011 IL App. (3d) 100513

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justice Schmidt concurred in the judgment and opinion.

Presiding Justice Carter concurred in part and dissented in part, with opinion.

OPINION

¶ 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 appealed from these rulings, arguing that the court erred when it: (1) denied the State's motion in limine to admit certain hearsay statements under the common law doctrine of forfeiture by wrongdoing; (2) denied the State's motion in limine to admit other-crimes evidence; and (3) excluded portions of the proposed testimony of attorney Diane Panos, whom the State had intended to call as an expert witness.

¶ 2 FACTS

¶ 3 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.

¶ 4 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.

¶ 5 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.

¶ 6 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. Three rulings of the circuit court on these matters are the subject of this appeal. The State has appealed each of these rulings separately by filing three discrete interlocutory appeals which were consolidated for briefing. Each of the three appeals are discussed in turn below.

¶ 7 I. APPEAL NO. 3--10--0514: ADMISSIBILITY OF HEARSAY STATEMENTS

¶ 8 In appeal No. 3--10--0514, the State challenges the circuit court's refusal to admit certain hearsay statements allegedly made by Kathleen and Stacy. On January 4, 2010, the State filed a motion in limine arguing that eleven statements made by Kathleen and three*fn1 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 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." 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 (2010); People v. Stechly, 225 Ill. 2d 246, 272-73 (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. The court found the following six statements admissible under the statute: (1) portions of a letter that Kathleen wrote to the Will County State's Attorney's office which described a confrontation that Kathleen allegedly had with the defendant on July 5, 2002, while the divorce proceedings were pending;*fn2 (2) a redacted version of a handwritten statement that Kathleen gave to the Bolingbrook police describing the alleged July 5, 2002, incident; (3) a statement that Kathleen allegedly made to her sister, Anna Doman; (4) a statement that Kathleen allegedly made in late 2003 to Mary Sue Parks, who attended nursing classes with Kathleen at Joliet Junior College; (5) another statement that Kathleen allegedly made to Parks; and (6) a statement that Stacy allegedly made to her pastor, Neil Schori, regarding an encounter that she allegedly had with her husband on the night Kathleen died.

¶ 11 The circuit court ruled that the remaining eight hearsay statements proffered by the State did not meet the statutory standard of reliability and that the interests of justice would not be served by the admission of those statements. The court excluded the following statements under the statute: (1) statements that Kathleen allegedly made to her other sister, Susan Doman; (2) a statement that Kathleen allegedly made to her attorney, Harry Smith; (3) statements that Kathleen allegedly made to her friend, Kristen Anderson, regarding the alleged July 5, 2002, incident; (4) a statement that Kathleen allegedly made to Issam Karam, one of her former co-workers; (5) statements that Stacy allegedly made to Michael Miles, whom she had met at Joliet Junior College in 2002; (6) a statement that Stacy allegedly made to her friend, Scott Rossetto, in the fall of 2007 regarding her alleged encounter with the defendant on the night Kathleen died; (7) portions of an audiotaped statement made by Kathleen to an insurance agent; and (8) portions of statements that Kathleen made under oath during an examination conducted by a Country Insurance agent on August 6, 2003.*fn3 As noted above, the court also redacted portions of Kathleen's letter to the Will County State's Attorney's office and her written statement to the Bolingbrook police regarding the alleged July 2002 incident.

¶ 12 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."

¶ 13 On June 30, 2010, the State filed another motion to admit the hearsay statements in which the State again requested the circuit court to rule on the admissibility of the same hearsay statements under the common law doctrine of forfeiture by wrongdoing. In both the body of the June 30 motion and in the prayer for relief, the State asked the court to "reconsider" its decision to exclude the hearsay statements at issue and urged the court to admit the statements under the common law doctrine. In seeking this relief, the State relied upon the Illinois Supreme Court's decision in People v. Hanson, 238 Ill. 2d 74 (2010), which was issued on June 24, 2010. The State argued that Hanson had "clarified that the Illinois common law doctrine of forfeiture by wrongdoing is both a hearsay exception and an exception to the Confrontation Clause, and that the reliability of any such hearsay statement is not relevant to its admissibility [under the common law doctrine]." The State also argued that Hanson had "expressly adopted" Federal Rule of Evidence 804(b)(6), which establishes a hearsay exception for "[f]orfeiture by wrongdoing," as the law in Illinois. In the prayer for relief, the State asked the court to "reconsider its ruling on the statements previously excluded under the statutory criteria and, pursuant to the common law doctrine of forfeiture by wrongdoing and Federal Rule of Evidence 804(b)(6), admit those statements at trial."

¶ 14 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. 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 the statute codified the common law and that the statute therefore takes precedence over the common law unless the statute is declared unconstitutional or otherwise invalidated.

¶ 15 On July 7, 2010, one day before the trial was scheduled to begin, the State filed a notice of appeal and a certificate of impairment. Both of these documents indicated that the State was appealing the circuit court's May 18, 2010, order and its July 6 denial of the State's "motion to reconsider" that order. In the certificate of impairment, the State asserted that the circuit court's May 18, 2010, order suppressing certain hearsay statements substantially impaired the State's ability to proceed with the case and rendered the State "unable to proceed to trial."

¶ 16 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 days of the circuit court's May 18, 2010, order, as required by Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006) and various supreme court decisions construing that rule, including People v. Holmes, 235 Ill. 2d 59, 67-68, 72 (2009). The defendant also argued that the supreme court's decision in Hanson did not announce any change in the common law. In response, the State filed a motion for leave to file a late notice of appeal under Illinois Supreme Court Rule 606(c) (eff. July 1, 1971). Four days later, the State filed an amended notice of appeal which indicated that the State was appealing both the circuit court's May 18 and July 6 orders. The amended notice omitted any reference to a "motion for reconsideration."

¶ 17 On August 9, 2010, this court allowed a late notice of appeal to be filed and denied as moot the defendant's motion to dismiss the appeal. The defendant then filed a motion for supervisory order in the Illinois Supreme Court asking the supreme court to order this court to vacate its ruling allowing the State to file a late notice of interlocutory appeal. The supreme court denied the defendant's motion without explanation or analysis.

¶ 18 II. APPEAL NOS. 3--10--0515 AND 3--10--0550: OTHER-CRIMES EVIDENCE

¶ 19 In appeal Nos. 3--10--0515 and 3--10--0550, the State appeals the circuit court's denial of the State's motion in limine to admit other-crimes evidence.*fn4 This evidence included the testimony of Eric Peterson, the defendant's son from his first marriage, and Anna Doman, Kathleen's sister. Eric and Anna testified regarding an incident of domestic abuse that the defendant allegedly committed upon Kathleen during their marriage in 1993. The State also presented the testimony of the defendant's second wife, Victoria Connolly, who was married to the defendant from 1982 to 1992. Connolly testified about three instances of threats and/or abuse that the defendant allegedly committed during their marriage and another alleged incident involving the defendant which occurred after she had divorced him in 1992. The State argued that this evidence was admissible under the common law to show the defendant's motive and intent to kill Kathleen. It also argued that the evidence was admissible under section 115--7.4 of the Code (725 ILCS 5/115--7.4 (West 2008) (allowing the admission of other-crimes evidence for any relevant purpose in domestic violence cases)) to show the defendant's propensity to commit crimes of domestic violence.

¶ 20 On June 18, 2010, the circuit court held a hearing on the State's motion. In an oral ruling issued during the hearing, the court excluded the State's other-crimes evidence under section 115--7.4 of the Code and the common law because it considered the evidence too remote. In this regard, the court focused on the timing of the incidents and indicated that the State's inability to show a continuing course of domestic violence rendered the evidence inadmissible. Maintaining that the circuit court's order effectively suppressed evidence, the State filed a certificate of impairment and a timely notice of appeal on July 7, 2010.

¶ 21 III. APPEAL NOS. 3--10--0513 AND 3--10--0546:

ADMISSIBILITY OF PROPOSED EXPERT TESTIMONY

¶ 22 In appeal Nos. 3--10--0513 and 3--10--0546, the State appeals the circuit court's granting of the defendant's motion in limine to exclude the testimony of Diane Panos, an attorney whom the State intended to call as an expert witness.*fn5 The State intended to present Panos' opinion on the minimum possible financial impact that the marital property distribution proceeding would have had on the defendant had Kathleen lived. Panos's proposed opinion included a prediction of what the judge would have ruled at the hearing.

¶ 23 On July 2, 2010, the circuit court ruled that Panos could testify as to the statutory factors that would have been applicable to the marital property distribution case between Kathleen and the defendant. However, after commenting that "[y]ou can't sit there and tell a jury that this judge is going to do this when we have no idea what the judge is going to do," the court prohibited Panos from testifying as to how the judge in the divorce case would have ultimately ruled at the marital property distribution proceeding. Further, the court also prohibited Panos from testifying as to what the defendant's attorney in that case would have advised him to expect to occur. In this regard, the court stated, "[t]hat's not an opinion coming into a criminal case based upon the facts that are there, and that's not an opinion that's going to go to a jury. This is a murder case. This is not a malpractice case with what a judge was going to do." On July 7, 2010, the State filed a certificate of impairment and a timely notice of appeal from the court's ruling limiting Panos's testimony.

¶ 24 ANALYSIS

¶ 25 I. ADMISSIBILITY OF HEARSAY STATEMENTS UNDER THE

COMMON LAW DOCTRINE OF FORFEITURE BY WRONGDOING

¶ 26 The State's argument in appeal No. 3--10--0514 relates to the circuit court's rulings on the admissibility of the aforementioned eight hearsay statements allegedly made by Kathleen Savio and Stacy Peterson. Although the circuit court's May 18, 2010, order admitted several other hearsay statements allegedly made by Kathleen and Stacy under section 115--10.6 of the Code (725 ILCS 5/115--10.6 (West 2008) (hearsay exception for the intentional murder of a witness)), it excluded the eight statements at issue partly because it found that they "[did] not provide sufficient safeguards of reliability as to the time, contents, and circumstances of the statements," as required by that statute. The State argues that the circuit court's refusal to admit these statements under the common law was an error that substantially impairs the State's ability to prosecute the defendant.

¶ 27 Although it is tempting to address the merits of the State's argument, we must resist this temptation because we lack jurisdiction to consider the State's appeal of this issue.

¶ 28 A. Rule 604(a)(1) and the Taylor Rule

¶ 29 Supreme Court Rule 604(a)(1) authorizes the State to appeal certain types of interlocutory orders issued in criminal matters. Ill. S. Ct. R. 604(a)(1) (eff. July 1, 1969). Whether the State may appeal a particular order on an interlocutory basis "depends solely upon [the supreme court's] construction of *** Rule 604(a)(1)." (Internal quotation marks omitted.) People v. Holmes, 235 Ill. 2d 59, 66 (2009). In People v. Taylor, 50 Ill. 2d 136 (1971), and its progeny, the supreme court established a procedural framework governing interlocutory appeals under Rule 604(a)(1). Holmes, 235 Ill. 2d at 62. This framework, which is commonly referred to as the "Taylor rule," prescribes jurisdictional time limits for appeals brought under Rule 604(a)(1). Specifically, the Taylor rule requires a party seeking review of an order appealable under Rule 604(a)(1) to either appeal or file a motion to reconsider the order within 30 days. Holmes, 235 Ill. 2d at 72; People v. Williams, 138 Ill. 2d 377, 394 (1990). An exception to the Taylor rule permits review beyond the 30-day frame only when there is "a material change in the facts that could not have been presented earlier with due diligence." (Emphasis added.) Holmes, 235 Ill. 2d at 61, 67; see also Williams, 138 Ill. 2d at 394.

¶ 30 The 30-day time limit established by the Taylor rule is jurisdictional. Holmes, 235 Ill. 2d at 68, 72 (describing the Taylor rule as a "jurisdictional barrier"). Thus, if the State fails to file a motion to reconsider a trial court's order or a notice of appeal within 30 days of the issuance of the order, this court has no jurisdiction to hear any subsequently filed appeal of that order unless the State shows a material change in the facts that could not have been presented earlier with due diligence. Holmes, 235 Ill. 2d at 67-68, 72; Williams, 138 Ill. 2d at 394.

¶ 31 The order at issue in this case was issued by the circuit court on May 18, 2010. Under the Taylor rule, the State was required to file a motion to reconsider or a notice of appeal within 30 days, i.e., by June 17, 2010. The State did neither. Instead, it fileda motion for reconsideration 43 days after the court's May 18 order and a notice of appeal 50 days after that order. These filings fell outside the jurisdictional deadline prescribed by the Taylor rule. Accordingly, we have jurisdiction to hear the State's appeal of the circuit court's May 18 order only if the State can show that there has been a material change in the facts that could not have been presented earlier with due diligence.

ΒΆ 32 The State argues that the supreme court's decision in Hanson--which was issued one week after the 30-day deadline for appealing the May 18 order had expired--"marked a material change in the law of the doctrine of forfeiture by wrongdoing" that was "akin to a change in the facts" under the Taylor rule. In Hanson, the supreme court upheld the trial court's admission of certain non-testimonial hearsay statements against a murder defendant under the common law doctrine of forfeiture by wrongdoing. Hanson, 238 Ill. 2d at 96-99. In so holding, the supreme court rejected the defendant's argument that statements are admissible under the common law doctrine only if they are testimonial and only if they "show some measure of reliability." Hanson, 238 Ill. 2d at 96, 97-99. The State asserts the supreme court's decision in Hanson was the first time that the court expressly recognized that the common ...


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