Justice Karmeier and Justices Freeman, Thomas, Kilbride,
Garman, and Burke concurred in the judgment and 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.
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.
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
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, (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.
13 I. Admission of Hearsay Statements Under the Forfeiture by
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 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.
(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
(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 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. 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.
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,
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.
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
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. ¶¶
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. 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.
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, 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
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 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,
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
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
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
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 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." 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 ...