Illinois Official Reports 

Supreme Court

People v. Peterson, 2017 IL 120331

Caption in Supreme

Court:

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

PETERSON, Appellant.

Docket No. 120331

Filed

Modified upon

denial of rehearing

September 21, 2017

January 19, 2018

Decision Under 

Review

Appeal from the Appellate Court for the Third District; heard in that 

court on appeal from the Circuit Court of Will County, the Hon. 

Stephen D. White and the Hon. Edward A. Burmila, Jr., Judges, 

presiding.

Judgment Affirmed.

Counsel on

Appeal

Steven A. Greenberg Adam M. Altman, and Andrew Gable, of Steven 

A. Greenberg & Associates, Ltd., and Harold J. Krent, of 

Chicago-Kent College of Law, both of Chicago, for appellant.

Lisa Madigan, Attorney General, of Springfield (David L. Franklin, 

Solicitor General, and Michael M. Glick and Leah M. Bendik, 

Assistant Attorneys General, of Chicago, of counsel), for the People.
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Justices JUSTICE THEIS delivered the judgment of the court, with opinion.

Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, 

Garman, and Burke concurred in the judgment and opinion.

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. 

¶ 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. 
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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 returned 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 
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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. 

 

1

Subclauses (a)(1) and (a)(2) of section 9-1 of the Criminal Code of 1961 define the offense of first 

degree murder. 720 ILCS 5/9-1 (West 2008). 
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 (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 72 witnesses and received into evidence 

 

2The 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).
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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 No. 112875 (Ill. 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 (Ill. 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. 

 

3

The judge who presided over defendant’s jury trial was not the same judge who presided over the 

pretrial forfeiture hearing. 
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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 
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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 
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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 
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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 by wrongdoing 

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 hearing where we concluded that the circuit court’s finding that the 

defendant caused the declarant to be unavailable was not “arbitrary or unreasonable.” Hanson, 

238 Ill. 2d at 99. Thus, we will review the trial court’s ruling here under the manifest weight of 

the evidence standard, and not for an abuse of discretion. 

¶ 40 Before reviewing the evidence of intent introduced at the pretrial hearing, we consider 

defendant’s argument concerning the kind of evidence necessary for a finding of intent. 

Defendant argues that, because the forfeiture by wrongdoing doctrine only applies where the 

defendant designed to prevent the witness from testifying (see Giles, 554 U.S. at 359-68), the 

State was required to identify the specific testimony from Kathleen and Stacy that he wished to 

avoid when he allegedly murdered them. Defendant contends that because the State failed to 

do so, the State did not meet its burden of proof as to the intent factor. In support, defendant 

cites State v. Dillon, 2016-Ohio-1561, 63 N.E.3d 712 (Ohio Ct. App.), People v. Roscoe, 846 

N.W.2d 402 (Mich. Ct. App. 2014) (per curiam), and Jensen v. Schwochert, No. 11-C-0803, 

2013 WL 6708767 (E.D. Wis. 2013). 

¶ 41 We agree with defendant’s first proposition. The common-law doctrine of forfeiture by 

wrongdoing generally applies only where the defendant designed to prevent the witness from 

testifying. See Giles, 554 U.S. at 359-68; see also In re Rolandis G., 232 Ill. 2d 13, 40 (2008) 

(stating that under Giles, “for forfeiture by wrongdoing to apply, the evidence had to show that 

the defendant engaged in witness tampering or some type of conduct designed to prevent the 

witness from testifying, thwart the judicial process, or procure the witness’ absence from 

trial”). 

¶ 42 We disagree, 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. 

And the out-of-state cases on which defendant relies do not lend support to his argument. In 

each case, the reviewing court found error in the admission of hearsay statements from the 

murder victim based on lack of evidence of intent (Dillon, 2016-Ohio-1561, 63 N.E.3d 712, at 

¶ 25; Jensen, 2013 WL 6708767, at *8) or the failure of the trial court to make any finding of 

intent (Roscoe, 846 N.W.2d at 408). But in no case did the reviewing court suggest, much less 

hold, that forfeiture by wrongdoing does not apply unless the State identifies the specific 

testimony the defendant sought to avoid. 
- 11 - 

¶ 43 We recognize, of course, the 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.” (Internal quotation marks omitted.) 

In re Edmonds, 2014 IL 117696, ¶ 54; see also People v. Maggette, 195 Ill. 2d 336, 354 (2001) 

(intent “not only can be inferred from the surrounding circumstances [citation] but usually is so 

proved”). 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.

¶ 44 We turn now to the evidence of intent introduced at the pretrial hearing to determine 

whether the State met its burden of proving, by a preponderance, that defendant murdered 

Kathleen and Stacy to prevent them from testifying. We note that at a forfeiture hearing, the 

trial court may consider hearsay evidence, including the unavailable witness’s hearsay 

statements. Stechly, 225 Ill. 2d at 278 (citing Davis, 547 U.S. at 833); see also Ill. R. Evid. 

104(a) (eff. Jan. 1, 2011) (when deciding preliminary questions concerning the admissibility of 

evidence, “the court is not bound by the rules of evidence except those with respect to 

privileges”). 

¶ 45 Focusing first on defendant’s intent as to Kathleen, the State’s theory is that defendant 

murdered Kathleen to prevent her from testifying at the April 6, 2004, hearing in the bifurcated 

divorce proceeding, at which issues of child custody, child support, maintenance, and division 

of property would be decided. The State presented extensive evidence regarding the 

acrimonious nature of the couple’s divorce. For example, testimony established that defendant 

was adamant that Kathleen not receive any portion of his pension from his years of service in 

the Bolingbrook police department. Defendant was angry that their attorneys were “getting all 

[his] money,” and he publicly stated that he would be better off if Kathleen was dead. The 

couple was fighting over money, as Kathleen tearfully advised her employer following a 

conversation with defendant in the parking lot of the office where she worked. Additionally, 

custody of the couple’s two sons remained a contested issue. Kathleen was passionate about 

not relinquishing custody to defendant. Indeed, just six weeks prior to her death, when 

Kathleen became convinced that she might not make it to the hearing, she extracted a promise 

from her sister, Anna Doman, that Anna would take care of Kathleen’s sons should anything 

happen to her. 

¶ 46 In short, settlement of the remaining issues in the bifurcated divorce was not a realistic 

possibility. Thus, no question exists that Kathleen would have testified at the April 2004 

hearing, as she had at an earlier hearing. Although the trial court could not know for certain 

how that hearing would have proceeded or what Kathleen’s testimony ultimately would have 

been, the trial court certainly knew that Kathleen, as a party opponent, was defendant’s 

primary adversary. Accordingly, the inference that defendant murdered Kathleen to prevent 

her from testifying is much stronger in this case, where a party to the litigation is murdered, 

than in a case where the person murdered had only a tangential relationship to the litigation or 

would have been, at most, a minor witness. 
- 12 - 

¶ 47 In addition to the acrimonious nature of the divorce proceedings and the certainty that 

Kathleen would have testified at the April 2004 hearing, the State offered other evidence 

relevant to defendant’s intent. Jeffrey Pachter testified for the State that he and defendant 

became friends when they both worked at a cable company. According to Pachter, in the winter 

of 2003, defendant asked Pachter if he wanted to go on a “ride along” in his police vehicle. 

Pachter accepted. During the ride, defendant asked Pachter if he knew anyone that could have 

his “third wife taken care of.” Defendant explained that “she has something on me.” Defendant 

mentioned a $25,000 payment to Pachter but indicated that if Pachter found someone to do it 

for less, he could keep the difference. Defendant did not identify the “something” that 

Kathleen had on him, but the import of Pachter’s testimony is that defendant wished to silence 

Kathleen. 

¶ 48 The State presented evidence that because Kathleen was silenced, the financial and custody 

issues pending at the time of her death in the divorce proceeding were ultimately resolved in 

defendant’s favor: defendant was awarded custody of his two sons, defendant was awarded the 

proceeds from the sale of the marital home, and defendant was awarded the business known as 

Blue Lightning Corporation. Additionally, Harry Smith, Kathleen’s divorce attorney, testified 

that, had Kathleen not died, educational, medical, and other expenses for Kathleen’s and 

defendant’s two sons would have been shared by the parties. Because Kathleen died, a trust 

fund for the two boys was set up with the proceeds from an insurance policy on Kathleen’s life. 

The proceeds, which exceeded $1 million, were paid to defendant as the guardian of his sons’ 

estates. 

¶ 49 Defendant disputes the sufficiency of the foregoing evidence, arguing that no matter how 

horrific the murder of a spouse may be, the forfeiture by wrongdoing doctrine does not apply 

unless the defendant killed his spouse to prevent testimony. Defendant contends that the 

State’s evidence established, at most, that Kathleen’s unavailability benefited him financially 

and allowed him to obtain sole custody of his sons. According to defendant, the State has 

confused a motive for murder with the specific intent to avoid testimony. We disagree. 

¶ 50 The State was not required to demonstrate that preventing Kathleen from testifying was 

defendant’s sole intent when he murdered her. The State was only required to prove that her 

murder was motivated “at least in part” by an intent to prevent her from testifying. Stechly, 225 

Ill. 2d at 272; see also People v. Burns, 832 N.W.2d 738, 746 (Mich. 2013) (prosecution must 

show that defendant acted, “at least in part,” with the purpose to cause the declarant’s 

unavailability); United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996) (sufficient to 

show that the defendant “was motivated in part by a desire to silence the witness,” and the 

“intent to deprive the prosecution of testimony need not be the actor’s sole motivation” 

(emphases in original)). 

¶ 51 Based on our careful review of the evidence at the pretrial hearing, and mindful that the 

State’s burden was a preponderance of the evidence, we cannot say that the trial court’s finding 

that the State proved that defendant murdered Kathleen to prevent her from testifying was 

“unreasonable, arbitrary, or not based on the evidence presented.” DeLeon, 227 Ill. 2d at 332. 

That the State’s evidence may have also established another motive for defendant’s murder of 

Kathleen, such as financial gain or obtaining sole custody of his sons, is irrelevant to whether 

the forfeiture by wrongdoing doctrine applies. See State v. Supanchick, 323 P.3d 231, 237 (Or. 

2014) (forfeiture doctrine applied although the evidence permitted a finding that defendant had 
- 13 - 

more than one purpose in killing his wife); People v. Banos, 100 Cal. Rptr. 3d 476, 479 (Cal. 

Ct. App. 2009) (“That defendant may have also had other motives for the killing (e.g., 

retribution for infidelity) does not preclude application of the [forfeiture] exception.”).4

¶ 52 Turning to defendant’s intent as to Stacy, the State’s theory is that defendant murdered 

Stacy to prevent her from reporting to police defendant’s involvement in Kathleen’s murder or 

testifying at a reasonably anticipated divorce hearing or a murder trial. Defendant argues that 

the State failed to meet its burden of proof as to his intent, first focusing on the fact that no civil 

or criminal proceeding was pending at the time of Stacy’s alleged murder. The State argues, 

however, that the absence of pending legal proceedings is not dispositive of the issue of intent 

and does not preclude application of the forfeiture by wrongdoing doctrine. In resolving this 

issue we are guided, first and foremost, by the Giles opinion. 

¶ 53 In Giles, which involved application of the forfeiture doctrine in the context of a domestic 

violence case, the Supreme Court indicated that a defendant’s intent to prevent testimony 

might be inferred from the surrounding circumstances. The Court explained: 

“Acts of domestic violence often are intended to dissuade a victim from resorting to 

outside help, and include conduct designed to prevent testimony to police officers or 

cooperation in criminal prosecutions. Where such an abusive relationship culminates in 

murder, the evidence may support a finding that the crime expressed the intent to 

isolate the victim and to stop her from reporting abuse to the authorities or cooperating 

with a criminal prosecution—rendering her prior statements admissible under the 

forfeiture doctrine.” Giles, 554 U.S. at 377.

¶ 54 As the above passage indicates, the Supreme Court expressly contemplated that the 

forfeiture doctrine could apply not only where the defendant’s efforts were designed to prevent 

testimony at trial but also where the defendant’s efforts were designed to prevent testimony to 

police, i.e., reporting criminal conduct. See Banos, 100 Cal. Rptr. 3d at 491 (holding that,

under Giles, the factual predicate for application of the forfeiture doctrine may be satisfied 

with evidence that the defendant “(1) intended to stop the witness from reporting abuse to the 

authorities; or (2) intended to stop the witness from testifying in a criminal proceeding”).

¶ 55 The Giles opinion also went on to state that “evidence of ongoing criminal proceedings at 

which the victim would have been expected to testify” would be “highly relevant.” Giles, 554 

U.S. at 377. The Court did not state that evidence of ongoing criminal proceedings was 

“necessary” to establish intent. 

¶ 56 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. Courts in other jurisdictions, analyzing their own states’ forfeiture 

rules that are essentially identical to our rule, have held that the existence of a pending legal 

 

4

In a footnote, defendant posits that some of Kathleen’s hearsay statements were “testimonial” 

under Crawford v. Washington, 541 U.S. 36 (2004), and their admission at trial implicates defendant’s 

confrontation rights under the sixth amendment. As defendant concedes, however, the forfeiture by 

wrongdoing doctrine “serves both as an exception to the hearsay rule and to extinguish confrontation 

clause claims.” Hanson, 238 Ill. 2d at 97; see also Davis, 547 U.S. at 833 (rule of forfeiture by 

wrongdoing extinguishes confrontation clause claims on essentially equitable grounds). In light of our 

holding that the State met its burden for admission of Kathleen’s statements under the forfeiture 

doctrine, we need not consider this issue further. 
- 14 - 

proceeding is not a requirement. E.g., Supanchick, 323 P.3d at 238 (holding that “nothing in 

the text” of Oregon’s forfeiture rule “requires that a matter be ongoing when the party acts to 

eliminate a witness”); State v. Ivy, 188 S.W.3d 132, 147 (Tenn. 2006) (holding that Tennessee 

forfeiture rule, like the federal rule, “is not limited to those cases in which a formal charge or 

judicial proceeding was pending against a defendant when the declarant’s statements were 

made”); State v. Hand, 107 Ohio St. 3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶ 90 (holding 

that Ohio forfeiture rule extends to “potential witnesses” and the absence of pending charges at 

the time the defendant killed the victim did not preclude admission of the victim’s statements 

at trial (internal quotation marks omitted)); see also United States v. Dhinsa, 243 F.3d 635, 653 

(2d Cir. 2001) (agreeing that under federal Rule 804(b)(6) “ ‘a defendant may not benefit from 

his or her wrongful prevention of future testimony from a witness or potential witness’ ” 

(quoting United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999))); Houlihan, 92 F.3d at 

1279 (“we can discern no principled reason why the waiver-by-misconduct doctrine should not 

apply with equal force if a defendant intentionally silences a potential witness” (emphasis in 

original)). 

¶ 57 Were we to hold otherwise, the equitable underpinnings of the forfeiture by wrongdoing 

doctrine would be undermined, and the doctrine’s very purpose—to prevent a defendant from 

thwarting the judicial process by taking advantage of his own wrongdoing (Reynolds, 98 U.S. 

at 159; Rolandis G., 232 Ill. 2d at 40)—would be defeated. 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. 

¶ 58 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. 

¶ 59 Before considering the sufficiency of the State’s evidence in support of this theory, we 

consider defendant’s argument that testimony from Harry Smith, an attorney, and Neil Schori, 

a counseling pastor at a nondenominational church in Bolingbrook, should not have been 

admitted at the pretrial forfeiture hearing. Each man was allowed to testify, over defendant’s 

objection, regarding a conversation he had with Stacy in which she implicated defendant in 

Kathleen’s death.

¶ 60 Defendant objected to Smith’s testimony based on the attorney-client privilege. The trial 

court, however, agreed with the State that defendant lacked standing to assert the privilege, 

which belonged to Stacy. Because the appellate court did not address the sufficiency of the 

evidence at the pretrial forfeiture hearing, it did not consider the privilege issue, which the 

State concedes defendant raised on direct review. 

¶ 61 Defendant now renews his objection to the admission of Smith’s testimony at the pretrial 

hearing. Defendant argues that only the client may waive this privilege and, therefore, in the 

absence of a waiver by Stacy, who, defendant asserts, has never been declared legally dead, 

Smith’s testimony should have been barred. Defendant argues, in the alternative, that the 

privilege survives death and, in that event, Smith yet had an obligation to assert the privilege 
- 15 - 

on Stacy’s behalf. Finally, defendant argues that the trial court was under a duty to ensure that 

privileged communications are not disclosed. 

¶ 62 Defendant’s arguments all assume that an attorney-client relationship arose between Smith 

and Stacy. The record, however, affirmatively demonstrates that such a relationship never 

materialized. 

¶ 63 Smith testified that Stacy telephoned him a few days before her disappearance, and advised 

that she was seeking a divorce. Smith unequivocally told Stacy that he “could not represent 

her.” Smith believed that “there had to be a conflict” in light of his prior representation of 

Kathleen. Whether Smith’s assessment of the situation was correct is irrelevant. What is 

relevant is that Smith made plain to Stacy that he “could not represent her.” Where a 

prospective client continues to communicate with the attorney after the attorney’s refusal to act 

for her, she “does not need or deserve the protection of the privilege.” 8 John H. Wigmore, 

Evidence § 2304, at 587 (McNaughton rev. ed. 1961); see also 1 Kenneth S. Broun et al., 

McCormick on Evidence § 88 n.3, at 540 (7th ed. 2013) (“Of course, statements made after the 

employment is declined are not privileged.”); People v. Gionis, 892 P.2d 1199, 1207 (Cal. 

1995) (collecting cases and observing that “authorities in other jurisdictions appear to 

uniformly hold that the attorney-client privilege does not protect statements made after an 

attorney declines employment”). Accordingly, Stacy’s statements that were made after Smith 

declined to represent her were not privileged and were properly admitted and considered at the 

pretrial forfeiture hearing. 

¶ 64 Smith testified that Stacy told him defendant was “pissed” at her because defendant 

thought she had told Tom (one of Kathleen’s and defendant’s sons) that defendant “killed 

Kathy.” Stacy also told Smith that she believed defendant was tracking her via the GPS 

function on her phone. Smith expressed concern, but Stacy told him defendant did not know 

about the cell phone she had used to call him. Smith further testified: 

“At some point, I told her she needs to be careful about what she’s doing. She told me 

she had too much expletive on him at the police department so she wasn’t concerned 

for her safety. *** She said, could we get more money out of [defendant] if we 

threatened to tell the police about how he killed Kathy. I told her she could be arrested 

for something like that.”

Smith testified that during his conversation with Stacy, he heard defendant call to her and ask 

what she was doing. When defendant called to Stacy a second time, she ended the 

conversation. 

¶ 65 As to pastor Neil Schori’s testimony regarding a conversation he had with Stacy, defendant 

argued in the trial court that such testimony was barred by the clergy privilege. This statutory 

privilege provides in relevant part: 

“A clergyman or practitioner of any religious denomination accredited by the religious 

body to which he or she belongs, shall not be compelled to disclose in any court *** a 

confession or admission made to him or her in his or her professional character or as a 

spiritual advisor in the course of the discipline enjoined by the rules or practices of such 

religious body or of the religion which he or she professes, nor be compelled to divulge 

any information which has been obtained by him or her in such professional character 

or as such spiritual adviser.” 735 ILCS 5/8-803 (West 2008). 
- 16 - 

¶ 66 The trial court ruled that defendant had no standing to assert the clergy privilege and 

Schori’s conversation with Stacy, which occurred in a public setting (a coffee shop), was not 

confidential. The appellate court rejected defendant’s challenge to the admissibility of Schori’s 

testimony, agreeing with the trial court that the conversation was not confidential. 2015 IL App 

(3d) 130157, ¶ 199. 

¶ 67 Defendant renews his objection to the admission of Schori’s testimony at the pretrial 

forfeiture hearing. The State argues that defendant forfeited review of this issue because he 

made only a passing reference to it, in a footnote, in his petition for leave to appeal. See People 

v. McCarty, 223 Ill. 2d 109, 122 (2006) (“failure to raise an issue in a petition for leave to 

appeal results in the forfeiture of that issue before this court”); Ill. S. Ct. R. 315(c) (eff. Jan. 1, 

2015) (setting forth requirements for petitions for leave to appeal). A defendant’s forfeiture, 

however, is not a jurisdictional bar to this court’s ability to review a matter. People v. Becker, 

239 Ill. 2d 215, 239 (2010). “When an issue is not specifically mentioned in a party’s petition 

for leave to appeal, but it is ‘inextricably intertwined’ with other matters properly before the 

court, review is appropriate.” Id. (quoting People v. McKown, 236 Ill. 2d 278, 310 (2010)). 

Defendant argues this is such a case. We agree. Because the admissibility of Schori’s 

testimony is inextricably intertwined with the trial court’s ultimate ruling as to whether the 

State met its burden of proof at the pretrial forfeiture hearing, we will consider the issue. 

¶ 68 Defendant argues that whether Schori’s testimony is subject to the clergy privilege rests on 

whether the communication was made in confidence (see People v. Campobello, 348 Ill. App. 

3d 619, 636 (2004)) and that Schori himself testified that confidentiality was intended and 

mandated by the “traditions of his church.” Defendant’s argument is belied by the record. 

During voir dire to determine whether the privilege applied, Schori testified that “no rules” 

existed regarding his counseling sessions and agreed with the prosecutor that “there were no 

practices or precepts or customs” of his church to which he was bound with respect to the 

confidentiality of counseling sessions. The complete absence of any “traditions” is plainly 

revealed in the following exchange between the prosecutor and Schori: 

“Q. In other words, there was no practice, no dictate, nothing from your church that 

told you what to keep confidential and what not to? That was basically your decision as 

the first pastoral counselor at Westbrook Church? 

A. That’s correct.

 Q. It had nothing to do with you following any precepts, following any practices, 

nothing but your own head, correct? 

A. That’s correct.”

¶ 69 Because the record fails to support the factual predicate underlying defendant’s argument 

that the clergy privilege barred Schori’s testimony, we reject defendant’s argument and will 

consider Schori’s testimony in determining whether the State met its burden of proof at the 

pretrial forfeiture hearing. 

¶ 70 Schori testified that Stacy telephoned him on August 30, 2007, two months before her 

disappearance. They arranged to meet at a coffee shop the following day. Stacy was anxious, 

very nervous, and tense, and at times she cried during their meeting. Stacy told Schori that she 

was afraid of the control defendant had in her life. “She said that she didn’t believe she could 

ever get away from him safely.” Stacy said she loved her children, including Kathleen’s 

children, whom she had adopted, and would never leave without them. 
- 17 - 

¶ 71 Schori further testified that Stacy told him that on the night Kathleen died, she and 

defendant had gone to bed but that she woke up and he was not there. Stacy looked for 

defendant in the house and then made several unsuccessful attempts to reach him on his cell 

phone. Stacy relayed to Schori that she saw defendant again in the early morning hours, 

dressed all in black, carrying a bag. Defendant put the contents of the bag—women’s 

clothing—into the washing machine, along with the clothes he was wearing. Stacy determined 

that the women’s clothing was not hers. Stacy told Schori that she was very scared and that 

defendant coached her for hours on what to say when the police interviewed her. Stacy said 

that what she told police was a lie. When Schori later learned from a coworker that Stacy was 

missing, Schori contacted the Illinois State Police. 

¶ 72 In addition to the testimony from Smith and Schori, the State presented other evidence at 

the pretrial hearing that Stacy and defendant were having serious marital issues and that Stacy 

was contemplating a divorce. Sharon Bychowski, Stacy’s neighbor, testified that she spoke to 

Stacy the week before Stacy disappeared. Stacy told Bychowski that she wanted a divorce and 

was looking for the right place to bring her children. Stacy also told Bychowski that she had 

packed 10 boxes of defendant’s things but he had refused to leave. Cassandra Cales, one of 

Stacy’s sisters, similarly testified that two days before Stacy’s disappearance, Stacy told her 

she wanted a divorce and was telling her friends that she was consulting with attorneys. 

¶ 73 The State also introduced evidence that defendant was aware that Stacy was seeking a 

divorce. Thomas Morphey, defendant’s stepbrother, testified that on Saturday, October 27, 

2007, the day before Stacy disappeared, defendant told him that Stacy was cheating on him, 

that she wanted a divorce, and that she wanted him out of the house by Wednesday. Morphey 

continued: 

“[H]e said that *** he was due to retire in 14 working days and she was going to take 

everything from him. She was going to take the kids, all the money that he had earned 

or half his pension which would mean he would need to then continue to work for the 

rest of his life.” 

¶ 74 Special Agent Patrick Callaghan with the Illinois State Police testified that he interviewed 

defendant the day after Stacy was reported missing. Defendant told Callaghan that he and 

Stacy had not been getting along and that they were talking about a divorce. 

¶ 75 Based on evidence that Stacy was planning to file for divorce, defendant’s 

acknowledgment of their marital difficulties and Stacy’s desire for a divorce, defendant’s 

concerns about the financial impact of a divorce, and Stacy’s knowledge about defendant’s 

involvement in Kathleen’s death, we cannot say that the trial court’s finding that the State 

established, by a preponderance of the evidence, that defendant murdered Stacy, at least in part 

with the intent to prevent her from reporting to police defendant’s involvement in Kathleen’s 

death or testifying at a reasonably anticipated divorce hearing or a murder trial, was against the 

manifest weight of the evidence. The trial court’s finding as to defendant’s intent was not 

“unreasonable, arbitrary, or not based on the evidence presented.” DeLeon, 227 Ill. 2d at 332. 

¶ 76 In sum, we find no error in the admission of Kathleen’s and Stacy’s hearsay statements at 

trial pursuant to the doctrine of forfeiture by wrongdoing. 
- 18 - 

¶ 77 II. Ineffective Assistance of Counsel 

¶ 78 Defendant next argues that he received ineffective assistance of counsel when lead defense 

counsel, Joel Brodsky, called attorney Harry Smith as a witness at trial, eliciting testimony 

about Smith’s telephone conversation with Stacy in which she implicated defendant in 

Kathleen’s death. Defendant maintains that no sound strategy existed for calling Smith as a 

witness. The State argues that the trial and appellate courts properly rejected defendant’s claim 

because the decision to call Smith was a strategic attempt to undermine Neil Schori’s 

testimony at trial and, although the strategy ultimately proved unsuccessful, it did not amount 

to ineffective assistance of counsel. 

¶ 79 Both the United States and Illinois Constitutions guarantee a criminal defendant the right to 

effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; 

People v. Hale, 2013 IL 113140, ¶ 15. A claim that counsel provided ineffective assistance is 

judged under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. 

Albanese, 104 Ill. 2d 504, 526 (1984) (adopting the Strickland standard). To prevail on a claim 

of ineffective assistance of counsel, a defendant must demonstrate that his attorney’s 

representation fell below an objective standard of reasonableness and a reasonable probability 

exists that, but for counsel’s errors, the result of the proceeding would have been different. 

People v. Patterson, 192 Ill. 2d 93, 107 (2000) (citing Strickland, 466 U.S. at 687). A 

“ ‘reasonable probability’ ” is “ ‘a probability sufficient to undermine confidence in the 

outcome’ ” of the proceeding. People v. Simpson, 2015 IL 116512, ¶ 35 (quoting Strickland, 

466 U.S. at 694). A failure by the defendant to satisfy either prong of the Strickland standard 

precludes a finding of ineffective assistance of counsel. Id. 

¶ 80 In evaluating defendant’s ineffectiveness claim, we are guided by the well-established 

principle that the decision whether to call a certain witness for the defense is a matter of trial 

strategy, left to the discretion of counsel after consultation with the defendant. People v. 

Clendenin, 238 Ill. 2d 302, 319 (2010); People v Patterson, 217 Ill. 2d 407, 442 (2005). 

Accordingly, such decisions will not ordinarily support a claim of ineffective assistance of 

counsel. Patterson, 217 Ill. 2d at 442; People v. West, 187 Ill. 2d 418, 432 (1999). Moreover, a 

mistake in trial strategy or an error in judgment by defense counsel will not alone render 

representation constitutionally defective. People v. Perry, 224 Ill. 2d 312, 355 (2007). “Only if 

counsel’s trial strategy is so unsound that he entirely fails to conduct meaningful adversarial 

testing of the State’s case will ineffective assistance of counsel be found.” Id. at 355-56; see 

also People v. Lewis, 2015 IL App (1st) 122411, ¶ 85 (the strong presumption that counsel’s 

strategy was sound may be overcome where counsel’s decisions appear to be so irrational that 

no reasonably effective defense attorney in similar circumstances would pursue such a 

strategy). 

¶ 81 Defendant argues that the record here is silent as to counsel’s strategy in calling Smith as a 

witness. If true, defendant’s claim of ineffective assistance of counsel might be better suited to 

collateral proceedings, such as postconviction review, where defendant and the State would 

have an opportunity to develop a factual record bearing on the issue. See People v. Veach, 2017 

IL 120649, ¶¶ 44-46. Our review of the record, however, reveals that it is not silent. At a 

hearing during trial, counsel disclosed that his strategy in calling Smith as a witness was to 

attack Stacy’s credibility generally, as well as to undermine Schori’s testimony by providing a 
- 19 - 

motive for Stacy to fabricate her claim that defendant was involved in Kathleen’s death. The 

trial record bears out this strategy. 

¶ 82 At trial, Neil Schori testified for the State, recounting his August 30, 2007, meeting with 

Stacy at a coffee shop in Bolingbrook. Schori’s trial testimony tracked his testimony at the 

pretrial forfeiture hearing. Schori testified that Stacy tearfully told him that one night she and 

defendant went to bed together. When Stacy awoke in the middle of the night, defendant was 

not in the house, and she was unsuccessful in contacting him by phone. Stacy next saw 

defendant in the early morning hours, standing at the washing machine dressed all in black, 

carrying a bag. Defendant placed the clothes he was wearing, along with the contents of the 

bag, into the washing machine and walked away. Stacy looked inside the washing machine and 

saw women’s clothing that did not belong to her. Afterwards, defendant worked with Stacy for 

hours, telling her what to say to the police when they interviewed her. Stacy told Schori that 

she lied to the police on defendant’s behalf.

¶ 83 On cross-examination, defense counsel Joseph Lopez engaged in a line of questioning 

designed to demonstrate that Schori did not believe Stacy when she essentially told him that 

defendant had killed his ex-wife, Kathleen. Lopez’s questioning highlighted that Schori did 

nothing to prevent Stacy from returning to the residence she shared with defendant, a purported 

murderer; never made any follow-up calls to Stacy; did not meet with her again; and did not 

reach out to the Savio family or law enforcement officials, even anonymously, with the 

information Stacy had shared. Although Schori testified at trial that he believed Stacy, Lopez 

impeached him with his testimony from the pretrial hearing that it was “possible” that Stacy 

had lied to him. 

¶ 84 During defendant’s case in chief, counsel called several witnesses, one of whom was Harry 

Smith. Under questioning from attorney Brodsky, Smith testified about his telephone 

conversation with Stacy in late October 2007. Stacy told Smith that she wanted to leave the 

state with the children and that she had information about defendant that she thought might 

benefit her in that regard. More specifically, Stacy “wanted to know if the fact [defendant] 

killed Kathleen” could be used as leverage in divorce proceedings. The jury also learned that 

Smith had previously testified that Stacy had asked him, “could we get more money out of 

[defendant] if we threatened to tell the police about how he killed Kathy,” and that Stacy had 

told him “she had so much S-H-I-T on [defendant] at the police department that he couldn’t do 

anything to her.” Smith conceded on direct examination that Stacy had not suggested going to 

the police. On cross-examination, Smith agreed that Stacy had inquired about getting more 

money out of defendant by threatening to tell police not only that he killed Kathleen but “how” 

he killed Kathleen. On redirect, Smith testified that he told Stacy to be careful because she 

could be arrested. Smith explained that he was referring not to extortion but concealment of a 

homicide. 

¶ 85 In closing argument, Lopez continued the theme that Stacy had lied about defendant’s 

involvement in Kathleen’s death simply to gain an advantage in the divorce and that Schori and 

Smith did not believe her. Lopez argued that Stacy knew that Kathleen’s death had been 

investigated and was found to be an accident but that she “twist[ed]” it into a homicide by 

starting a “campaign of lies” to “squeeze [defendant] out of money.” Lopez argued that this 

was why Stacy did not go to the police. Lopez further argued that when it appeared to Stacy 
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that Smith did not believe her, she came up with one “last thing,” i.e., “something on the 

Bolingbrook Police Department,” which was part of her “campaign of lies.”

¶ 86 Defendant raised his ineffectiveness claim in his posttrial motion. The trial court rejected 

defendant’s claim, noting that the decision whether to call Smith was a “balancing test.” The 

court explained: 

“Was it more important to show and destroy Stacy’s testimony by the fact she was 

willing to commit a felony to get at the defendant, to threaten him, to get money from 

him as opposed to the counter weight of the statement of how he had killed Kathy. 

 *** I cannot say that demonstrating that Stacy was an avaricious extortionist 

willing to commit a felony was not in some circumstance a conceivably sound 

strategy.”

¶ 87 The appellate court also rejected defendant’s ineffectiveness claim, finding that the 

decision to call Smith was clearly a matter of trial strategy “as defense counsel was seeking to 

discredit the impression of Stacy that Schori’s testimony had given to the jury.” 2015 IL App 

(3d) 130157, ¶ 224. The appellate court rejected defendant’s ineffectiveness claim for the 

additional reason that defendant had not established the prejudice prong of the Strickland

standard. Id. ¶ 225. The appellate court found that the potentially damaging portion of Smith’s 

testimony—that Stacy stated defendant had killed Kathleen—was largely cumulative to the 

testimony provided by Schori. The appellate court could not say that, but for the decision to 

call Smith, there was a reasonable probability that the result of defendant’s trial would have 

been different. Id.

¶ 88 Based on our review of the record in this case, we conclude that defendant has failed to 

demonstrate that counsel’s decision to call Smith as a witness at trial was “not within the realm 

of trial strategy.” Perry, 224 Ill. 2d at 355. Whereas Schori’s trial testimony portrayed Stacy as 

an emotional young wife and mother burdened with the knowledge that her husband was 

involved in Kathleen’s death, defendant sought to demonstrate, through Smith’s testimony, 

that Stacy fabricated her allegations against defendant simply to obtain leverage in future 

divorce proceedings, i.e., that Stacy would lie to extort money from defendant. Although this 

strategy did not result in a favorable verdict, we must make every effort to eliminate “the 

distorting effects of hindsight.” Strickland, 466 U.S. at 689. We may not conclude that a 

particular strategy or tactic was unreasonable simply because it has proved unsuccessful. Id.

“There are countless ways to provide effective assistance in any given case. Even the best 

criminal defense attorneys would not defend a particular client in the same way.” Id.

¶ 89 Because defendant has not satisfied the first prong of the Strickland standard—that 

counsel’s representation fell below an objective standard of reasonableness—we reject 

defendant’s ineffectiveness claim. See Simpson, 2015 IL 116512, ¶ 35 (failure to satisfy either 

prong of the Strickland standard precludes a finding of ineffective assistance of counsel). 

¶ 90 III. Admission of Allegedly Privileged Communications 

¶ 91 Defendant makes the additional and independent argument that the trial court erred in 

allowing the defense to call Harry Smith as a witness at trial because Smith’s conversation with 

Stacy was subject to the attorney-client privilege. As already discussed in part I supra, Stacy’s 

conversation with Smith, after Smith declined representation, was not subject to the 
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attorney-client privilege. Thus, we need not consider this issue further. 

¶ 92 IV. Per Se Conflict of Interest 

¶ 93 Defendant next argues that his conviction must be reversed and his case remanded for a 

new trial because defense counsel Brodsky was operating under a per se conflict of interest 

when he entered into a media contract. 

¶ 94 Relevant to this issue, the record discloses that on November 14, 2007, defendant appeared 

on NBC’s Today Show. At the time of his television appearance, Stacy had been missing for 

over two weeks, Kathleen’s body had been exhumed, and one of two additional autopsies had 

been performed. During the Today Show appearance, defendant stated his belief that his 

silence had painted him guilty in the media. Defendant also expressed concern about the 

anticipated expense of a legal defense, and asked the “attorneys of America” for help. “If 

anybody would like to take my case and help me out here, please call.” Brodsky responded, 

and an attorney-client relationship was formed shortly thereafter in mid-November 2007. 

¶ 95 A month later, on December 16, 2007, Brodsky and defendant entered into a media 

contract with Selig Multimedia, Inc. The contract provided that, in exchange for a 15% 

commission, Selig Multimedia would 

“render all services customarily performed by persons rendering publicity and 

promotional services in the entertainment industry, including, without limited [sic] to, 

soliciting, procuring and/or negotiating appearances, product endorsements (including 

commercials), photo opportunities and/or interviews for Peterson and/or Brodsky on 

television shows, news related television shows, talk shows, panel shows, reality shows 

and/or any other live or taped appearances, and/or in magazines, newspapers and/or 

tabloids ***, and/or soliciting, procuring, and/or negotiating book deals for Peterson 

and/or Brodsky ***.”

¶ 96 Brodsky’s testimony at the hearing on defendant’s posttrial motion established that 

revenue generated under this agreement was limited to a little more than $15,900, consisting of 

a $10,000 payment in late February 2008 from ABC, two payments from ABC in early March 

2008 totalling $1500, and a $5901.18 payment in late March 2008 from an unidentified 

publisher. Brodsky testified that the publisher’s payment was for a “book that Mr. Peterson I 

guess authored or co-authored regarding his case.” Brodsky deposited all revenue into a client 

trust account and used it to pay his fees and expenses for representing defendant. 

¶ 97 By its own terms, the media contract expired on December 15, 2008, approximately five 

months before defendant was indicted for Kathleen’s murder.

¶ 98 The trial court rejected defendant’s conflict-of-interest argument. The court stated during 

its oral ruling that the idea that someone needs to get ahead of a news story is not unusual, and 

“if Mr. Brodsky and Mr. Peterson believed that the best way to address his matter 

preindictment was to get ahead of this story, *** by seeking out media attention and somebody 

that would assist you to do that again is not unusual.” The trial court concluded that the 

existence of the media contract did not prevent defendant from presenting a defense, receiving 

a fair trial, or receiving the effective assistance of counsel. 

¶ 99 On direct review, the appellate court also rejected defendant’s argument. 2015 IL App (3d) 

130157, ¶ 217. The appellate court held that the alleged conflict created by the media contract 

did not fall within any of the categories of per se conflicts established by this court and, 
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regardless of whether Brodsky’s conduct in entering into the media contract constituted a 

violation of the Illinois Rules of Professional Conduct, no per se conflict of interest arose. Id.

The appellate court also held that People v. Gacy, 125 Ill. 2d 117 (1988), on which defendant 

relied, did not mandate that a per se conflict of interest be found in this case. 2015 IL App (3d) 

130157, ¶ 218. The appellate court explained: 

“Although our supreme court indicated in Gacy that a per se conflict of interest might 

very likely arise if the defense attorney enters into a book deal about the case during the 

course of the representation, it did not involve or address a situation such as that 

involved in the present case—where a potential defendant and his attorney, acting in 

concert, jointly enter into a media rights contract with a media company prior to 

criminal charges being brought against the potential defendant as a strategy to try to 

head off a possible indictment by getting ahead of the story in the media.” Id.

¶ 100 Defendant argues that the appellate court misconstrued Gacy and failed to take into 

account that the media contract was a clear violation of Rules 1.7 and 1.8 of the Illinois Rules 

of Professional Conduct. The State argues, in line with the appellate court, that Gacy did not 

hold that the existence of a media contract creates a per se conflict of interest and that this court 

should be circumspect about recognizing such a rule. The State also argues that any alleged 

violation by Brodsky of the Illinois Rules of Professional Conduct is a matter for the Attorney 

Registration and Disciplinary Commission. 

¶ 101 The parties agree that the facts relevant to the conflict-of-interest issue are not in dispute. 

Accordingly, the issue is one of law, which we review de novo. People v. Fields, 2012 IL 

112438, ¶ 19.

¶ 102 A criminal defendant’s sixth amendment right to the effective assistance of counsel 

includes the right to conflict-free representation. People v. Nelson, 2017 IL 120198, ¶ 29; 

Fields, 2012 IL 112438, ¶ 17. Such representation means “assistance by an attorney whose 

allegiance to his client is not diluted by conflicting interests or inconsistent obligations.” 

People v. Spreitzer, 123 Ill. 2d 1, 13-14 (1988). Two categories of conflict of interest exist: 

per se and actual. Fields, 2012 IL 112438, ¶ 17. 

¶ 103 A per se conflict of interest exists where “facts about a defense attorney’s status *** 

engender, by themselves, a disabling conflict.” (Emphasis in original.) Spreitzer, 123 Ill. 2d at 

14; accord Fields, 2012 IL 112438, ¶ 17. Pursuant to long-standing precedent, this court has 

recognized that a per se conflict of interest exists in the following situations: “(1) where 

defense counsel has a prior or contemporaneous association with the victim, the prosecution, 

or an entity assisting the prosecution; (2) where defense counsel contemporaneously represents 

a prosecution witness; and (3) where defense counsel was a former prosecutor who had been 

personally involved with the prosecution of defendant.” Fields, 2012 IL 112438, ¶¶ 18, 41.5

The justification for treating these conflicts as per se conflicts is that, in each situation, the 

defense counsel’s association or tie to the victim, the prosecution, or a prosecution witness 

may have subtle or subliminal effects on counsel’s performance that are difficult to detect and 

demonstrate. People v. Austin M., 2012 IL 111194, ¶ 81; People v. Hernandez, 231 Ill. 2d 134, 

143 (2008); People v. Washington, 101 Ill. 2d 104, 110-11 (1984). 

 

5

Peculiar to juvenile prosecutions, we have also held that a per se conflict of interest arises when 

defense counsel also acts as guardian ad litem. People v. Austin M., 2012 IL 111194, ¶¶ 83-86. 
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¶ 104 Unless a defendant waives his right to conflict-free representation, the existence of a per se

conflict of interest is grounds for automatic reversal. Fields, 2012 IL 112438, ¶ 18; Hernandez, 

231 Ill. 2d at 143. In other words, where a per se conflict exists, a defendant need not show that 

counsel’s performance was in any way affected by the existence of the conflict. Id.

¶ 105 Where a defendant has not established that a per se conflict of interest arose, reversal of the 

defendant’s conviction requires a showing of an actual conflict. Austin M., 2012 IL 111194, 

¶ 81. To succeed on an actual conflict-of-interest claim, the defendant must establish that the 

conflict adversely affected counsel’s performance. Id. ¶ 82. 

¶ 106 Defendant here argues that defense counsel Brodsky labored under a per se conflict of 

interest when he entered into the contract with Selig Multimedia. In essence, defendant is 

asking this court to recognize a new situation, in addition to those identified above, under 

which a per se conflict of interest would arise. In support, defendant cites our opinion in Gacy.

¶ 107 In Gacy, we considered the defendant’s pro se postconviction claim that a conflict of 

interest arose when defense counsel was offered a $6 million book deal. Counsel declined the 

offer, but the defendant maintained that “ ‘the seed was planted as to how much money was or 

could be made’ ” and, from that point forward, counsel was more concerned about keeping 

records of the case than preparing the defense. Gacy, 125 Ill. 2d at 134. We declined to find 

either a per se conflict of interest or an actual conflict of interest. Id. at 136. 

¶ 108 Although we recognized that an attorney’s acquisition of a financial stake in the litigation 

directly adverse to the client’s interests would give rise to a per se conflict, we held that the 

mere fact that defense counsel was offered but declined a book deal was an insufficient basis 

on which to find such a conflict. Id. at 135-36. We also held that the defendant failed to 

establish an actual conflict because the defendant failed to point to specific identifiable 

deficiencies in counsel’s performance resulting from counsel’s recordkeeping, which itself had 

legitimate purposes. Id. at 136. 

¶ 109 Gacy did not consider a media contract like the one at issue here, and nothing in Gacy

signals that an attorney who, with his client, enters into such a contract necessarily acquires a 

financial stake in the case “directly adverse” to the client’s interests. Id. at 135. At most, Gacy

intimates that where defense counsel accepts a book deal or acquires other publication rights 

during the course of his representation, a per se conflict of interest might arise. That did not 

occur in this case. Thus, defendant’s reliance on Gacy is misplaced. 

¶ 110 Defendant also argues that a per se conflict of interest arose because defense counsel’s 

conduct in entering into the media contract was a clear violation of Rules 1.7 and 1.8 of our 

Rules of Professional Conduct. The version of Rule 1.7 that was in effect at the time Brodsky 

and defendant entered into the contract with Selig Multimedia prohibited a lawyer from 

representing a client if such representation “may be materially limited *** by the lawyer’s own 

interests, unless: (1) the lawyer reasonably believes the representation will not be adversely 

affected; and (2) the client consents after disclosure.” Ill. R. Prof’l Conduct R. 1.7(b) (eff. Aug. 

1, 1990). Rule 1.8 also prohibited an attorney from entering into any arrangement with a client 

“by which the lawyer acquires an interest in publication, media, or other literary rights with 
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respect to the subject matter of employment,” unless the employment has been concluded. Ill. 

R. Prof’l Conduct R. 1.8(b) (eff. Aug. 1, 1990).6

¶ 111 Whether defense counsel’s conduct in entering into the media contract violated the 

foregoing rules is not as clear as defendant maintains. We observe, for example, that although 

defense counsel’s acquisition of publication rights during the course of representing defendant 

would have violated Rule 1.8, the media contract at issue here did not, itself, create such rights. 

Indeed, the contract focused primarily on generating publicity through television appearances 

and the print media preindictment. Thus, some uncertainty exists as to whether this type of 

media contract falls squarely within the prohibition of Rule 1.8. 

¶ 112 We also observe that defendant’s claim that counsel’s entry into the contract violated Rule 

1.7 is not well documented in the record. Defendant maintains that no strategic purpose existed 

to enter into the media contract and that Brodsky was motivated by the “five-star hotel stays, 

meals, and spa treatments for him and his wife, along with cash and other benefits” that they 

received in conjunction with the personal appearances. These assertions, if true, might be 

indicative that defense counsel’s representation was “materially limited” by counsel’s “own 

interests,” in violation of Rule 1.7. But the only citation to the record defendant provides in 

support of these assertions is citation to oral argument by another member of his defense team 

during the hearing on defendant’s posttrial motion. We will not rely on factual assertions made 

in a party’s own argument that are not otherwise established in the record. See People v. 

Barner, 2015 IL 116949, ¶ 69 n.4 (“We obviously cannot rely upon a factual representation 

made in the background section of a party’s own motion which cannot be independently 

established in the record.”).

¶ 113 In sum, even if we accept defendant’s argument that a clear violation of Rules 1.7 and 1.8 

could give rise to a per se conflict of interest, any conclusion by this court as to a rule violation 

in this case would be completely speculative. Indeed, the proper forum to resolve a claim that 

counsel has violated our Rules of Professional Conduct is the Attorney Registration and 

Disciplinary Commission, whose officers, acting as the agents of this court, administer the 

disciplinary functions that we have delegated to them. In re Mitan, 75 Ill. 2d 118, 123-24 

(1979); see also Ill. S. Ct. R. 751(a) (eff. Jan. 17, 2013) (attorney disciplinary proceedings 

“shall be under the administrative supervision of an Attorney Registration and Disciplinary 

Commission”); People v. Camden, 210 Ill. App. 3d 921, 926 (1991) (“Attorney disciplinary 

proceedings are conducted by the ARDC completely separate and apart from the judicial 

proceedings in which the attorney misconduct was alleged to have occurred.”). 

¶ 114 For these reasons, we reject defendant’s argument that a per se conflict of interest arose in 

this case. We will not expand the situations already recognized by this court in which a per se

conflict of interest exists. 

¶ 115 In the absence of a per se conflict of interest, reversal of defendant’s conviction requires a 

showing of an actual conflict of interest. Austin M., 2012 IL 111194, ¶ 81. Defendant, 

however, has not argued below or in this court that an actual conflict of interest arose when 

counsel entered into the media contract. Accordingly, defendant has forfeited any such 

 

6The Illinois Rules of Professional Conduct, adopted February 8, 1990, and effective August 1, 

1990, which were in effect at the time of the entry of the media contract, have been repealed and 

replaced by the Illinois Rules of Professional Conduct of 2010, effective January 1, 2010. 
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argument. See People v. Denson, 2014 IL 116231, ¶ 11; People v. Williams, 235 Ill. 2d 286, 

298 (2009). 

¶ 116 V. Evidence of Prior Bad Acts 

¶ 117 Defendant next argues that the trial court abused its discretion and committed reversible 

error when it allowed the State to introduce bad-acts evidence, notwithstanding the State’s 

failure to comply with the notice requirements of Illinois Rule of Evidence 404. This rule 

allows the admission of bad-acts or other-crimes evidence under certain circumstances but 

requires the State to disclose its intent to introduce such evidence “at a reasonable time in 

advance of trial, or during trial if the court excuses pretrial notice on good cause shown.” Ill. R. 

Evid. 404(c) (eff. Jan. 1, 2011). 

¶ 118 The bad-acts evidence at issue here involved the testimony of Jeffrey Pachter. As discussed 

in part I supra, Pachter testified at the pretrial forfeiture hearing regarding a conversation with 

defendant in the winter of 2003, during which defendant offered him $25,000 to find someone 

that could have his “third wife taken care of.” Prior to trial, the State filed a motion to admit 

bad-acts or other-crimes evidence but did not reference Pachter’s testimony in that motion. 

The State, however, included Pachter’s name on its witness list that was provided to defendant 

on July 24, 2012. 

¶ 119 On July 31, 2012, during the State’s opening statement at trial, the State told the jury that 

defendant had a conversation with a friend “where he offered him $25,000.” Before the State 

could go any further, defendant objected. At a side bar, defendant argued that Pachter’s 

testimony was evidence of a prior bad act that the State had not included in its pretrial motion 

and Pachter’s testimony was thus inadmissible. Defendant urged the court to declare a mistrial. 

The trial court sustained defendant’s objection but would not declare a mistrial. The State 

completed its opening statement without further reference to defendant’s conversation with 

Pachter, and the trial proceeded. 

¶ 120 Two days later, on August 2, 2012, the State filed a motion in limine to admit Pachter’s 

testimony at trial. The State, relying on People v. Morales, 2012 IL App (1st) 101911, ¶ 25, 

argued that evidence of defendant’s offer to pay Pachter $25,000 to have his wife killed was 

part of defendant’s “course of conduct” leading up to the crime charged and, as such, it was 

“intrinsic evidence” of the charged offense and not subject to the notice requirement of Illinois 

Rule of Evidence 404. The State argued in the alternative that even if Pachter’s testimony was 

evidence of a prior bad act, the State had provided constructive notice to defendant. The State 

explained: 

“In this case, in 2010 the People disclosed Pachter’s name, statements, a summary of 

the substance of the testimony, and in fact, his testimony was part of the 2010 

[forfeiture] hearing, wherein defendant had an opportunity to cross-examine the 

witness. Pachter’s name is on the People’s trial witness list. This satisfies the notice 

requirement of Rule 404 ***.”

¶ 121 After briefing and argument, on August 14, 2014, the trial court ruled that testimony 

regarding defendant’s alleged offer to pay $25,000 to have Kathleen killed was evidence of a 

prior bad act subject to the notice requirements of Illinois Rule of Evidence 404. The State 

maintained, however, that its late notice should be excused in light of its reasonable but 

mistaken belief that the evidence was not subject to Rule 404, as well as its provision of 
- 26 - 

constructive notice to defendant of Pachter’s testimony. The trial court ultimately concluded 

that good cause had been shown, and the court extended the deadline for providing notice to 

defendant to August 14, 2012. Thus, the State’s August 2, 2012, notice to defendant, provided 

in its motion in limine, was timely. 

¶ 122 A week later, on August 21, 2012, after a hearing, the trial court ruled that the State could 

introduce Pachter’s testimony at trial as evidence of defendant’s intent. See Ill. R. Evid. 404(b) 

(eff. Jan. 1, 2011) (bad-acts evidence may be admissible “as proof of *** intent”). The next 

day, the State called Pachter as a witness at trial. Defendant did not request a continuance. On 

direct examination, Pachter testified that defendant asked him, during a ride along in his police 

vehicle, if Pachter “could find someone to take care of his third wife.” Defendant requested a 

sidebar, after which the court admonished the jury as follows: 

“Ladies and gentlemen, the following instruction is applicable to the testimony that’s 

about to be elicited, and evidence is going to be received that the defendant has been 

involved in conduct other than that charged in the indictment. This evidence will be 

received on the issue of the defendant’s intent, and it may be considered by you only 

for that limited purpose. It’s for you to determine whether the defendant was involved 

in the conduct, and, if so, what weight should be given to this evidence on the issue of 

intent.” 

The State completed its examination of Pachter. Defendant conducted a lengthy 

cross-examination, challenging Pachter’s credibility and suggesting that Pachter did not, in 

any event, take defendant’s alleged offer seriously.

¶ 123 In his posttrial motion and again on direct review, defendant unsuccessfully challenged the 

admission of Pachter’s testimony at trial. 2015 IL App (3d) 130157, ¶ 210. The appellate court 

held that the trial court did not abuse its discretion, noting that Pachter’s testimony was not 

presented until August 22, 2012, a full 20 days after the State gave notice, defendant did not 

request a continuance, and defendant fully examined Pachter. Id.

¶ 124 Illinois Rule of Evidence 404 provides in relevant part: 

“(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show action in conformity 

therewith ***. Such evidence may also be admissible for other purposes, such as proof 

of motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or 

accident. 

 (c) In a criminal case in which the prosecution intends to offer evidence under 

subdivision (b), it must disclose the evidence, including statements of witnesses or a 

summary of the substance of any testimony, at a reasonable time in advance of trial, or 

during trial if the court excuses pretrial notice on good cause shown.” Ill. R. Evid. 404 

(eff. Jan. 1, 2011). 

¶ 125 A trial court’s ruling on a motion to admit other-crimes evidence is reviewed for an abuse 

of discretion. People v. Chapman, 2012 IL 111896, ¶ 19; People v. Donoho, 204 Ill. 2d 159, 

182 (2003). The question is not whether the reviewing court would have made the same 

decision if it were acting as the trial court. Rather, the question is whether the trial court’s 

decision is “arbitrary, fanciful, or unreasonable to the degree that no reasonable person would 

agree with it.” People v. McDonald, 2016 IL 118882, ¶ 32. The abuse-of-discretion standard of 

review is highly deferential. Lerma, 2016 IL 118496, ¶ 32. Thus, we will not reverse the trial 
- 27 - 

court’s ruling here absent a clear abuse of that discretion. People v. Dabbs, 239 Ill. 2d 277, 284 

(2010). 

¶ 126 We note that defendant does not challenge the trial court’s ruling that Pachter’s testimony 

was admissible as evidence of defendant’s intent. Rather, defendant only challenges the trial 

court’s decision to excuse the State’s failure to provide pretrial notice under Rule 404. As to 

that issue, defendant first argues that the trial court’s initial ruling barring the State from 

introducing Pachter’s testimony “reassured” the defense that Pachter’s testimony would not be 

admitted and that the defense was “unprepared” for the trial court’s “about face” on this matter. 

The fact that defendant did not anticipate the trial court’s ultimate ruling is not a basis for 

finding an abuse of discretion. Moreover, the trial court’s so-called “about face” occurred only 

after the State’s motion to admit Pachter’s testimony had been fully briefed and argued by the 

parties and after the court carefully considered the applicability of Rule 404, the existence of 

good cause, and the general admissibility of Pachter’s testimony.

¶ 127 Defendant next argues that the trial court erroneously equated the provision of 

“constructive notice” with the establishment of “good cause” under Rule 404. The record 

discloses that, although the trial court considered the State’s argument that it provided 

constructive notice to defendant of its intent to introduce bad-acts evidence through Jeffrey 

Pachter, the trial court did not equate the two concepts. 

¶ 128 Finally, defendant argues that the trial court’s ruling eviscerated the purpose of Rule 404’s 

pretrial notice requirement, namely, to prevent prejudice by giving the defense time to prepare 

its own case around the bad-acts evidence. In support, defendant cites United States v. Skoczen, 

405 F.3d 537 (7th Cir. 2005). There, the federal court of appeals agreed with the defendant that 

the government should have provided proper pretrial notice of its intent to introduce bad-acts 

evidence at trial, stating that “[t]he point of the pretrial notice is to prevent undue prejudice and 

surprise by giving the defendant time to meet such a defense.” Id. at 548. The court of appeals 

noted, however, that the defendant had not explained how he was prejudiced by the lack of 

notice and observed that the defendant “could have asked for a continuance, but he did not.” Id.

The court of appeals ultimately found no reversible error in the district court’s decision to 

admit the bad-acts evidence. Id.

¶ 129 Here, defendant suggests that he had inadequate time to prepare for Pachter’s testimony. 

But defendant was already aware of the substance of Pachter’s testimony, since Pachter had 

previously testified at the pretrial forfeiture hearing. Moreover, like defendant Skoczen, 

defendant did not ask for a continuance for further preparation, and as the appellate court 

observed, defendant appears to have fully cross-examined Pachter about his conversation with 

defendant and about matters related to Pachter’s credibility. 2015 IL App (3d) 130157, ¶ 210. 

Under these circumstances, we find no abuse of discretion in the trial court’s ruling.

¶ 130 VI. Cumulative Error 

¶ 131 Having rejected defendant’s claims of error, we need not consider defendant’s argument 

that cumulative error denied him a fair trial. 
- 28 - 

¶ 132 CONCLUSION 

¶ 133 For the reasons discussed above, we affirm the judgment of the appellate court affirming 

defendant’s conviction and sentence for the first degree murder of Kathleen Savio.

¶ 134 Affirmed.