People v. Peterson

• Decision Date: 12 November 2015
• Docket Number: No. 3–13–0157.,3–13–0157.
• Citation: 2015 IL App (3d) 130157,400 Ill.Dec. 40,47 N.E.3d 1005
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Drew PETERSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2015 IL App (3d) 130157

47 N.E.3d 1005

400 Ill.Dec. 40

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Drew PETERSON, Defendant–Appellant.

No. 3–13–0157.

Appellate Court of Illinois, Third District.

Filed Nov. 12, 2015.

Rehearing Denied Dec. 16, 2015.

Steven A. Greenberg (argued), Steven A. Greenberg & Associates, Ltd., Harold J. Krent (argued), IIT Chicago–Kent College of Law, and Andrew S. Gable, Chicago, and John W. Heiderscheidt, Alsip, for appellant.

James Glasgow, State's Attorney, Joliet (Marie Q. Czech (argued), Assistant State's Attorney, of counsel), for the People.

OPINION

Justice CARTER delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant, Drew Peterson, was found guilty of the first degree murder ( 720 ILCS 5/9–1(a)(1) (West 2004)) of Kathleen Savio and was sentenced to 38 years in prison. Defendant appeals his conviction, arguing that: (1) he was not proven guilty beyond a reasonable doubt; (2) the trial court erred in several of its evidentiary rulings; (3) his trial attorney operated under a per se conflict of interest; (4) he was denied effective assistance of trial counsel; and (5) he was denied a fair trial because of cumulative error. We affirm defendant's conviction and sentence.

¶ 2 FACTS

¶ 3 On March 1, 2004, 40–year–old Kathleen Savio, defendant's third ex-wife, was found dead in the bathtub of her home in Bolingbrook, Illinois. There was no water in the tub at the time. Because defendant was a police officer in the same town, a separate, independent agency, the Illinois State Police, was called in to investigate Kathleen's death. A pathologist, Dr. Bryan Mitchell, performed an autopsy and concluded that Kathleen had drowned. Mitchell made no determination, however, as to the manner of Kathleen's death (whether it was natural causes, suicide, accident, homicide, or undetermined). An inquest was later held, and a coroner's jury found that the death was accidental. No criminal charges were initially filed. At the time of Kathleen's death, defendant and Kathleen were in the process of a divorce. Their marriage had already been legally dissolved, but the property division, pension, and child support issues were still pending and had been scheduled for a hearing to be held the following month in April 2004.

¶ 4 In October 2007, defendant's fourth wife, Stacy Peterson, disappeared. At the time of Stacy's disappearance, defendant and Stacy had been discussing a divorce. Following Stacy's disappearance, Kathleen's body was exhumed and two additional autopsies were conducted, one by Dr. Larry Blum and another by Dr. William Baden. After the autopsies, both pathologists separately concluded that Kathleen's death was a homicide.

¶ 5 In May 2009, the State charged defendant with the first degree murder of Kathleen. Throughout the proceedings in this case, defendant was represented by a team of several attorneys, including his lead attorney, Joel Brodsky. The remaining members of the defense team changed occasionally as some of the attorneys withdrew from the case and other attorneys joined the case.

¶ 6 In January 2010, during pretrial proceedings, the State filed a motion seeking to admit 14 hearsay statements that were made by Kathleen and Stacy. The State asserted in the motion that the statements were admissible pursuant to both the statute ( 725 ILCS 5/115–10.6 (West 2008) (hearsay exception for the intentional murder of a witness)) and the common law doctrine of forfeiture by wrongdoing (FBWD). Defendant opposed the motion, and an evidentiary hearing (the hearsay hearing) was held in front of the Honorable Stephen D. White. At the conclusion of the hearing, the trial court ruled that six of the statements were admissible under the statute and eight of the statements were not. The trial court made no ruling, however, as to the admissibility of the statements under the common law doctrine of FBWD. The State's motion to reconsider was subsequently denied, and the State appealed.

¶ 7 On appeal, a divided panel of this court initially found that there was no jurisdiction to rule upon the admissibility of the eight hearsay statements under the common law doctrine of FBWD. People v. Peterson, 2011 IL App (3d) 100513, ¶¶ 27–53, 351 Ill.Dec. 899, 952 N.E.2d 691 (Peterson I ). However, after a supervisory order from the supreme court directed this court to consider the merits of the issue, this court found that all eight of the excluded statements were admissible under the common law doctrine. People v. Peterson, 2012 IL App (3d) 100514–B, ¶¶ 19–29, 360 Ill.Dec. 125, 968 N.E.2d 204 (Peterson II ). In the decision, this court noted that on remand, the trial court was still free to find that the statements were inadmissible for some other reason (other than they did not qualify for admission under the FBWD doctrine). Id. ¶ 25 n. 6.

¶ 8 On remand in the trial court, the case was assigned to the Honorable Edward A. Burmila, Jr. During subsequent pretrial proceedings, the State and the defense filed various motions in limine. The State's motions primarily sought to admit additional hearsay statements into evidence or to expand upon the statements that had already been ruled admissible in Peterson II. The defense's motions sought to exclude those additional or broadened statements and the eight original statements that were at issue in Peterson II, albeit on grounds other than FBWD.

¶ 9 One such motion filed by the defense was a motion to exclude hearsay statements that Kathleen and Stacy had made to attorney Harry Smith. In the motion, the defense asserted that the statements were protected by the attorney-client privilege, that the privilege had not been waived by either Kathleen or Stacy, and that Smith could not, therefore, testify as to the statements. After considering the arguments of the attorneys on the motion, the trial court found that the statements of Kathleen and Stacy were protected by the attorney-client privilege. The trial court commented, however, that there was a portion of Smith's prior testimony that indicated that Kathleen might have waived the privilege. The trial court took the matter under advisement and gave the parties an opportunity to present any additional information they had as to whether Kathleen had waived the privilege and the extent and effect of any alleged waiver on the admissibility of the statements in question. At a later hearing, after some testimony from Smith, the trial court determined that Kathleen had, in fact, waived the privilege. The trial court concluded, therefore, that Kathleen's statements to Smith were not excludable on the basis of attorney-client privilege. The statements that Stacy had made to Smith, however, were still subject to exclusion.

¶ 10 A second defense motion sought to exclude hearsay statements that Stacy had made to Pastor Neil Schori regarding her observations of defendant's conduct on the night of Kathleen's death, claiming that the statements were protected under the clergy privilege. After considering the parties' arguments on the motion, the trial court ruled that the clergy privilege did not apply because: (1) Pastor Schori did not assert the privilege; and (2) the communication occurred in a public place where it could have been overhead by other people and with a third party present that Schori had brought with him to observe the communication.

¶ 11 A third defense motion sought to exclude some of the eight hearsay statements based upon a violation of due process. The defense asserted in the motion that the admission at trial of the statements that Judge White had previously determined at the hearsay hearing to be unreliable would violate defendant's due process rights.¹ After considering the arguments of the attorneys on the motion, the trial court ruled that Judge White's prior reliability determination did not render the statements facially inadmissible but the defense was free to object to the admission of any of those particular statements during the trial and the trial court would make its ruling on each of the objections at that time after considering all of the evidence that had been presented.

¶ 12 The case proceeded to a jury trial in July 2012. At the time of the trial, defendant was represented by a team of six attorneys—Joel Brodsky, Steven Greenberg, Joseph Lopez, Lisa Lopez, Ralph Meczyk, and Darryl Goldberg. Attorney Brodsky was still the lead attorney. The trial lasted over seven weeks and spanned from July to September 2012.

¶ 13 After the trial had started and shortly into the State's opening statement, the defense objected to a reference that the prosecutor had made to evidence that would be provided by Jeffrey Pachter, that defendant had offered Pachter $25,000. The objection was made by the defense before the prosecutor disclosed to the jury the alleged purpose for which defendant had offered Pachter the money—to find someone to kill Kathleen. A conference was held outside the presence of the jury on the defense's objection. The defense claimed that the prosecutor's statement was in reference to evidence that was not admissible because the State had failed to give notice to the defense that the State had intended to introduce the testimony as other crimes or other bad act evidence as provided for in Illinois Rule of Evidence 404(c) (eff. Jan. 1, 2011). The defense claimed further that the previous judge, Judge White, had already ruled upon the State's motion to admit other crimes evidence and had already determined what other crimes evidence would be admitted at trial. The Pachter evidence was not raised in the State's prior motion or ruled upon by Judge White. The trial court agreed and sustained the objection but denied the defense's motion for a mistrial.

¶ 14 Moving into the evidence portion of the jury trial, Mary Pontarelli testified for the State that she was Kathleen's next-door neighbor and best friend.² Mary and her family (her husband, her children, her brother, and...