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People v. Peterson

Supreme Court of Illinois

September 21, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
DREW PETERSON, Appellant.

          Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and Burke concurred in the judgment and opinion.

          OPINION

          THEIS, JUSTICE.

         ¶ 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.

         ¶ 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, (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 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 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.[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.

         ¶ 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.

         ¶ 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 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 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 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 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 ...


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