People v. Peterson, 2017 IL 120331 (September). Episode 396 (Duration 17:32)

Drew Peterson loses his appeal to the Illinois Supreme Court.

Background

Drew Peterson was sentenced to 38 years for the murder of his third wife.

She was discovered drowned in a bathtub and the original autopsy said it was accidental. When Drew’s fourth wife disappeared they exhumed his third wife’s body and the autopsy was changed to murder.

Issue

Statements from the fourth wife were admitted and on appeal Drew argues that the forfeiture by wrongdoing doctrine did not apply and the statements were admitted in error, such error requires this court to reverse his conviction.

Two principals are at issue:

(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.

Facts

Prior to trial, the State filed a motion seeking the admission of hearsay statements made by Kathleen (third wife and this murder victim) and Stacy (fourth wife still missing presumed dead).

Kathleen

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 an 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.

Stacy

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.

Namely, that defendant was dressed in all black that night and came home and immediately washed women’s clothes. The clothes was not Stacy’s.

Code of Criminal Procedure

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.

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. 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 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.

Common Law Forfeiture By Wrongdoing

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).

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.”

The Federal Rule

The common-law doctrine was eventually codified in the Federal Rules of Evidence as an exception to the rule against hearsay.

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).

Illinois Jumps Aboard (With A Rule)

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). The rule is super simple saying,

"(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (5)  Forfeiture by Wrongdoing. 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."

Statute v. Rule

The trial court believed the statute was applicable and the appellate court says the rule is what governs.

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.

The separation of powers clause, however, is not intended to achieve a “complete divorce” between the branches of government. 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.

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. 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”).

Analysis

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. 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. 

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.

In contrast to the rule, section 115-10.6 of the Code applies exclusively to cases involving the declarant’s murder.

The Statute Required

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).

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.

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.”

Holding

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.

The Hearing

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.

Under the preponderance standard, the State need only present evidence “that renders a fact more likely than not. 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).

See Also Rule 104

"(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination, the court is not bound by the rules of evidence except those with respect to privileges.

Defendant's Beef

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.

This Hearing

The court disagreed, 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.

There is, of course, 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.”

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. The State was only required to prove that her murder was motivated “at least in part” by an intent to prevent her from testifying.

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. 

Closing

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.

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.

See Also

• Attorney Conflict of Interest: Did Drew Peterson’s Attorney Have One When He Signed a Publicity Contract? (Episode 106)
• How Did the Clergy Privilege Make an Appearance in the Drew Peterson Case? (Episode 107)