THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DREW PETERSON, Defendant-Appellee.
Docket Nos. 3-10-0513, 3-10-0514, 3-10-0515, 3-10-0546, 3-10-0550 cons.
Appellate Court of Illinois, Third District
July 26, 2011
2011 IL App (3d) 100513
Hon. Stephen D. White, Judge, presiding.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In the State’s interlocutory appeal, the appellate court lacked jurisdiction to consider the trial court’s refusal to admit 8 of the 14 hearsay statements it offered under the common law doctrine of forfeiture by wrongdoing where the notice of appeal was untimely and there was no showing of any material change in the facts that would justify an untimely filing pursuant to Supreme Court Rule 604(a)(1) or 606(c), and, further, the exclusion of evidence of other crimes defendant allegedly committed was neither arbitrary nor unreasonable, and the trial court’s refusal to allow the attorney who was representing defendant’s wife in their divorce proceedings to testify as to what the judge in that case would have ruled if defendant’s wife had lived was not an abuse of discretion.
Decision Under Review
Appeal from the Circuit Court of Will County, No. 09-CF-1048; the Hon. Stephen D. White, Judge, presiding.
No. 3-10-0514, Dismissed for lack of jurisdiction.
Nos. 3-10-0515 and 3-10-0550, Affirmed; cause remanded.
Nos. 3-10-0513 and 3-10-0546, Affirmed; cause remanded.
Counsel on Appeal
James Glasgow (argued), State’s Attorney, of Joliet (Colleen M. Griffin (argued), Assistant State’s Attorney, of counsel), for the People.
Steven A. Greenberg (argued), of Steven A. Greenberg, Ltd., Joseph R. Lopez, Joel A. Brodsky, of Brodsky & Odeh, Ralph E. Meczyk, Darryl Goldberg, and Lisa M. Lopez, all of Chicago, for appellee.
Panel
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Justice Schmidt concurred in the judgment and opinion.
Presiding Justice Carter concurred in part and dissented in part, with opinion.
OPINION
¶ 1 The defendant, Drew Peterson, was charged with two counts of first degree murder (
FACTS
¶ 3 On March 1, 2004, Kathleen Savio, the defendant’s third wife, was found dead in her bathtub. At the time of her death, the Illinois State Police conducted an investigation into Kathleen’s death and a pathologist performed an autopsy. The pathologist concluded that Kathleen had drowned but did not opine on the manner of death. A coroner’s jury subsequently determined that the cause of death was accidental drowning. No charges were filed in connection with her death.
¶ 4 Several months before Kathleen’s death, the judge presiding over divorce proceedings
¶ 5 The defendant’s fourth wife, Stacy Peterson, disappeared on October 27, 2007. Stacy and the defendant had been discussing a divorce. Following Stacy’s disappearance, Kathleen’s body was exhumed and two additional autopsies were conducted. The pathologists who conducted the autopsies concluded that Kathleen’s death was a homicide.
¶ 6 On May 7, 2009, the State charged the defendant with the murder of Kathleen. During pretrial proceedings, the defendant contested the admissibility of some of the evidence the State intended to present at trial. Three rulings of the circuit court on these matters are the subject of this appeal. The State has appealed each of these rulings separately by filing three discrete intеrlocutory appeals which were consolidated for briefing. Each of the three appeals is discussed in turn below.
I. APPEAL No. 3-10-0514: ADMISSIBILITY OF HEARSAY STATEMENTS
¶ 8 In appeal No. 3-10-0514, the State challenges the circuit court’s refusal to admit certain hearsay statements allegedly made by Kathleen and Stacy. On January 4, 2010, the State filed a motion in limine arguing that 11 statements made by Kathleen and 31 statements made by Stacy were admissible under
¶ 9 The State asked the circuit court to conduct a hearing to determine the admissibility of these hearsay statements under both the statute and the common law doctrine of forfeiture by wrongdoing and sought the admission of the statements under both the statute and the common law. In January and February 2010, the circuit court held an evidentiary hearing on the State’s motion. The State argued, inter alia, that the defendant killed Kathleen with the intent of preventing her testimony at the hearing on the distribution of the marital property. The State also argued that the defendant killed Stacy with the intent of preventing her testimony not only at a future divorce and property distribution hearing, but also at a trial for Kathleen’s murder. Seventy-two witnesses testified at the hearing, including three pathologists. Two pathologists testified for the State that Kathleen’s death was a homicide. The defense’s pathologist disagreed with the State’s pathologist’s conclusions and testified that Kathleen had drowned accidentally.
¶ 10 The circuit court took the matter under advisement and issued its written ruling on May 18, 2010. Applying the statutory criteria, the court found that the State had proved by a preponderance of the evidence that: (1) the defendant murdered Kathleen and Stacy; and (2) he did so with the intent to make them unavailable as witnesses. Further, the court found that, pursuant to the statute, 6 of the 14 proffered hearsay statements contained sufficient “safeguards of reliability” and that the interests of justice would be served by the admission of those statements into evidence. The court found the following six statements admissible under the statute: (1) portions of a letter that Kathleen wrote to the Will County State’s Attorney’s office which described a confrontation that Kathleen allegedly had with the defendant on July 5, 2002, while the divorce proceedings were pending;2 (2) a redacted version of a handwritten statement that Kathleen gave to the Bolingbrook police describing the alleged July 5, 2002, incident; (3) a statement that Kathleen allegedly made to her sister, Anna Doman; (4) a statement that Kathleen allegedly made in late 2003 to Mary Sue Parks, who attended nursing classes with Kathleen at Joliet Junior College; (5) another statement that Kathleen allegedly made to Parks; and (6) a statement that Stacy allegedly made to her pastor, Neil Schori, regarding an encounter that she allegedly had with her husband on the night Kathleen died.
¶ 11 The circuit court ruled that the remaining eight hearsay statements proffered by the State did not meet the statutory standard of reliability and that the interests of justice would not be served by the admission of those statements. The court excluded the following statements under the statute: (1) statements that Kathleen allegedly made to her other sister, Susan Doman; (2) a statement that Kathleen allegedly made to her attorney, Harry Smith; (3) statements that Kathleen allegedly made to her friend, Kristen Anderson, regarding the alleged July 5, 2002, incident; (4) a statement that Kathleen allegedly made to Issam Karam, one of her former coworkers; (5) statements that Stacy allegedly made to Michael Miles, whom she had met at Joliet Junior College in 2002; (6) a statement that Stacy allegedly made
¶ 12 The circuit court’s May 18, 2010, order failed to address whether any оf the proffered statements were admissible under the common law doctrine of forfeiture by wrongdoing, as the State had requested in its motion. On May 28, 2010, the defendant filed a motion to clarify the circuit court’s ruling. The defendant’s motion asked the court to clarify whether it ruled under the common law doctrine. During a hearing held the same day, the court stated, “I didn’t even get to that. There was no request as to any of the others. I ruled strictly pursuant–there was a hearing pursuant to the statute.”
¶ 13 On June 30, 2010, the State filed another motion to admit the hearsay statements in which the State again requested the circuit court to rule on the admissibility of the same hearsay statements under the common law doctrine of forfeiture by wrongdoing. In both the body of the June 30 motion and in the prayer for relief, the State asked the court to “reconsider” its decision to exclude the hearsay statements at issue and urged the court to admit the statements under the common law doctrine. In seeking this relief, the State relied upon the Illinois Supreme Court’s decision in People v. Hanson, 238 Ill. 2d 74 (2010), which was issued on June 24, 2010. The State argued that Hanson had “clarified that the Illinois common law doctrine of forfeiture by wrongdoing is both a hearsay exception and an exception to the Confrontation Clause, and that the reliability of any such hearsay statement is not relevant to its admissibility [under the common law doctrine].” The State also argued that Hanson had “expressly adopted” Federal Rule of Evidence 804(b)(6), which establishes a hearsay exception for “[f]orfeiture by wrongdoing,” as the law in Illinois. In the prayer for relief, the State asked the court to “reconsider its ruling on the statements previously excluded under the statutory criteria and, pursuant to the common law doctrine of forfeiture by wrongdoing and Federal Rule of Evidence 804(b)(6), admit those statements at trial.”
¶ 14 The defendant objected that the State’s motion to reconsider was untimely because the State did not file the motion within 30 days of the сircuit court’s May 18 order. On July 6, the court issued an order denying the State’s motion, which it described as a motion to reconsider the May 18 ruling. The court’s order did not address the defendant’s argument that the State’s motion was untimely or provide any specific reasons for its ruling. Two days
¶ 15 On July 7, 2010, one day before the trial was scheduled to begin, the State filed a notice of appeal and a certificate of impairment. Both of these documents indicated that the State was appealing the circuit court’s May 18, 2010, order and its July 6 denial of the State’s “motion to reconsider” that order. In the certificate of impairment, the State asserted that the circuit court’s May 18, 2010, order suppressing certain hearsay statements substantially impaired the State’s ability to proceed with the case and rendered the State “unable to proceed to trial.”
¶ 16 The defendant moved to dismiss the State’s appeal as untimely. The defendant argued that the State’s appeal was jurisdictionally defective because the State had failed to file either a motion to reconsider or a notice of appeal within 30 days of the circuit court’s May 18, 2010, order, as required by Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006) and various supreme court decisions construing that rule, including People v. Holmes, 235 Ill. 2d 59, 67-68, 72 (2009). The defendant also argued that the supreme court’s decision in Hanson did not announce any change in the common law. In response, the State filed a motion for leave to file a late notice of appeal under Illinois Supreme Court Rule 606(c) (eff. July 1, 1971). Four days later, the State filed an amended notice of appeal which indicated that the State was appealing both the circuit court’s May 18 and July 6 orders. The amended notice omitted any reference to a “motion for reconsideration.”
¶ 17 On August 9, 2010, this court allowed a late notice of appeal to be filed and denied as moot the defendant’s motion to dismiss the appeal. The defendant then filed a motion for supervisory order in the Illinois Supreme Court asking the supreme court to order this court to vacate its ruling allowing the State to file a late notice of interlocutory appeal. The supreme court denied the defendant’s motion without explanation or analysis.
II. APPEAL Nos. 3-10-0515 AND 3-10-0550: OTHER-CRIMES EVIDENCE
¶ 19 In appeal Nos. 3-10-0515 and 3-10-0550, the State appeals the circuit court’s denial of the State’s motion in limine to admit other-crimes evidence.4 This evidence included the testimony of Eric Peterson, the defendant’s son from his first marriage, and Anna Doman, Kathleen’s sister. Eric and Anna testified regarding an incident of domestic abuse that the defendant allegedly committed upon Kathleen during their marriage in 1993. The State also presented the testimony of the defendant’s second wife, Victoria Connolly, who was married to the defendant from 1982 to 1992. Connolly testified about three instances of threats and/or abuse that the defendant allegedly committed during their marriage and another alleged
¶ 20 On June 18, 2010, the circuit court held a hearing on the State’s motion. In an oral ruling issued during the hearing, the court excluded the State’s other-crimes evidence under
III. APPEAL Nos. 3-10-0513 AND 3-10-0546: ADMISSIBILITY OF PROPOSED EXPERT TESTIMONY
¶ 22 In appeal Nos. 3-10-0513 and 3-10-0546, the State appeals the circuit court’s granting of the defendant’s motion in limine to exclude the testimony of Diane Panos, an attorney whom the State intended to call as an expert witness.5 The State intended to present Panos’s opinion on the minimum possible financial impact that the marital property distribution proceeding would have had on the defendant had Kathleen lived. Panos’s proposed opinion included a prediction of what the judge would have ruled at the hearing.
¶ 23 On July 2, 2010, the circuit court ruled that Panos could testify as to the statutory factors that would have been applicable to the marital property distribution case between Kathleen and the defendant. However, after commenting that “[y]ou can’t sit there and tell a jury that this judge is going to do this when we have no idea what the judge is going to do,” the court prohibited Panos from testifying as to how the judge in the divorce case would have ultimately ruled at the marital property distribution proceeding. Further, the court also prohibited Panos from testifying as to what the defendant’s attorney in that case would have advised him to expect to occur. In this regard, the court stated, “[t]hat’s not an opinion coming into a criminal case based upon the facts that are there, and that’s not an opinion that’s going to go to a jury. This is a murder case. This is not a malpractice case with what a judge was going to do.” On July 7, 2010, the State filed a certificate of impairment and a timely notice of appeal from the court’s ruling limiting Panos’s testimony.
ANALYSIS
I. ADMISSIBILITY OF HEARSAY STATEMENTS UNDER THE
¶ 26 The State’s argument in appeal No. 3-10-0514 relates to the circuit court’s rulings on the admissibility of the aforementioned eight hearsay statements allegedly made by Kathleen Savio and Stacy Peterson. Although the circuit court’s May 18, 2010, order admitted several other hearsay statements allegedly made by Kathleen and Stacy under
¶ 27 Although it is tempting to address the merits of the State’s argument, we must resist this temptation because we lack jurisdiction to consider the State’s appeal of this issue.
A. Rule 604(a)(1) and the Taylor Rule
¶ 29 Supreme Court Rule 604(a)(1) authorizes the State to appeal certain types of interlocutory orders issued in criminal matters.
¶ 30 The 30-day time limit established by the Taylor rule is jurisdictional. Holmes, 235 Ill. 2d at 68, 72 (describing the Taylor rule as a “jurisdictional barrier”). Thus, if the State fails to file a motion to reconsider a trial court’s order or a notice of appeal within 30 days of the issuance of the order, this court has no jurisdiction to hear any subsequently filed appeal of that order unless the State shows a material change in the facts that could not have been presented earlier with due diligence. Holmes, 235 Ill. 2d at 67-68, 72; Williams, 138 Ill. 2d at 394.
¶ 31 The order at issue in this case was issued by the circuit court on May 18, 2010. Under the Taylor rule, the State was required to file a motion to reconsider or a notice of appeal within 30 days, i.e., by June 17, 2010. The State did neither. Instead, it filed a motion for reconsideration 43 days after the court’s May 18 order and a notice of appeal 50 days after that order. These filings fell outside the jurisdictional deadline prescribed by the Taylor rule. Accordingly, we have jurisdiction to hear the State’s appeal of the circuit court’s May 18
¶ 32 The State argues that the supreme court’s decision in Hanson–which was issued one week after the 30-day deadline for appealing the May 18 order had expired–“marked a material change in the law of the doctrine of forfeiture by wrongdoing” that was “akin to a change in the facts” under the Taylor rule. In Hanson, the supreme court upheld the trial court’s admission of certain nontestimonial hearsay statements against a murder defendant under the common law doctrine of forfeiture by wrongdoing. Hanson, 238 Ill. 2d at 96-99. In so holding, the supreme court rejected the defendant’s argument that statements are admissible under the common law doсtrine only if they are testimonial and only if they “show some measure of reliability.” Hanson, 238 Ill. 2d at 96, 97-99. The State asserts the supreme court’s decision in Hanson was the first time that the court expressly recognized that the common law doctrine is both a hearsay exception and an exception to the confrontation clause, and that the admissibility of a hearsay statement under the common law doctrine does not depend upon a showing that the statement is reliable.
¶ 33 We disagree. Assuming arguendo that a change in the governing law could trigger the Taylor rule’s exception for a “material change in facts”–a question which we do not decide–the State cannot show that any change in the applicable law occurred here. The common law doctrine of forfeiture by wrongdoing was recognized by the United States Supreme Court as early as 1878. Hanson, 238 Ill. 2d at 96. In 1997, the doctrine was codified at the federal level by Federal Rule of Evidence 804(b)(6) as an exception to the general rule against hearsay.
¶ 34 Thus, contrary to the State’s argument, it was clear long before Hanson that the common
¶ 35 Hanson further confirms this point. Hanson did not purport to expand or change the existing common law rule in any way. To the contrary, in Hanson, the supreme court noted that it had “already expressed” in Stechly that the common law doctrine was “coextensive with” Rule 804(b)(6), which “is a general exception to the hearsay rule.” Hanson, 238 Ill. 2d at 97. Thus, when it stated in Hanson that the common law doctrine serves as an exception to the hearsay rule under Illinois law, the supreme court merely “expressly recognize[d]” something that was “left unsaid” but already clearly established by implication in Stechly. Hanson, 238 Ill. 2d at 97.
¶ 36 In addition, Hanson’s holding that the common law doctrine does not require a showing of reliability was not an alteration or even a clarification of the existing law. Rather, it was merely a straightforward statement of traditional common law principles. In rejecting the defendant’s argument that the common law doctrine required a showing of reliability, the court stated that the defendant had “misapprehend[ed] the purpose” of the common law doctrine, which provides for the forfeiture of hearsay objections on equitable grounds. Hanson, 238 Ill. 2d at 97-98. The common law rule provides that a defendant who intentionally prevents a witness from testifying against him forfeits the right to challenge the reliability of the witness’s hearsay statement. White, 116 F.3d at 912-13. Thus, the common law rule has never required a showing of additional indicia of reliability. White, 116 F.3d at 912-13; cf. Crawford v. Washington, 541 U.S. 36, 62 (2004) (noting that “the [common law] rule of forfeiture by wrongdoing *** extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability”). Such a requirement would “undermine the equitable considerations at the center of the doctrine.” Hanson, 238 Ill. 2d at 98. Thus, the supreme court did not change the law as to this issue in Hanson; rather, it rejected the defendant’s invitation to change the law by imposing a requirement of reliability.7
¶ 38 In sum, the State had ample grounds to appeal or move to reconsider the circuit court’s May 18 order within 30 days, and there was no “material change in facts” (or law) in this case that would excuse the State’s failure to comply with the Taylor rule’s jurisdictional deadline.
¶ 39 The State argues in the alternative that its appeal was timely because the court did not rule on the common law issue until July 6, 2010, one day before the State filed its notice of appeal. The State argues that, in its May 18 order, the circuit court ruled that the eight hearsay statements at issue were inadmissible under the statute, but it did not rule on the admissibility of those statements under the common law doctrine. The court did not expressly rule on the common law doctrine until July 6 when it denied the State’s June 30 motion. The State claims that its July 7 notice of appeal addressed that ruling only, not the court’s May 18 ruling that the statements were inadmissible under the statute. In essence, the State suggests that its June 30 motion addressed an entirely separate and independent issue which was not decided by the court until July 6. Thus, the State claims that its July 7 notice of appeal was timely under the Taylor rule.
¶ 40 We disagree. First, contrary to the State’s suggestion, the State’s June 30 motion did not raise any new issues. To the contrary, it raised the identical issue that the State had previously raised in its January 4 motion. In both motions, the State asked the court to admit
argument in its briefs. The argument is therefore waived. In any event, the law in other jurisdictions is irrelevant because, as shown above, the application of the common law doctrine in Illinois was clear long before Hanson.
¶ 41 Moreover, the fact that the circuit court did not rule on or even consider the common law doctrine in its May 18 order does not affect the analysis under the Taylor rule. Our supreme court has held that the Taylor rule’s jurisdictional bar “resembles the doctrine of res judicata” in that it is “not limited to issues actually considered, but also covers any issues that could have been raised in the earlier proceeding.” (Emphasis added.) Holmes, 235 Ill. 2d at 67; see also Williams, 138 Ill. 2d at 390-91 (“[N]one of our Taylor line of cases limited the Taylor rule only to those subsidiary issues that may actually have been considered ***. *** Each of the Taylor line of cases speaks of an order itself, not merely of issues upon which the order may or may not have turned.”). In other words, the Taylor rule applies to appealable suppression orders per se, not merely to the legal grounds upon which those suppression orders were decided. Holmes, 235 Ill. 2d at 67; Williams, 138 Ill. 2d at 390-91.
¶ 42 In this case, the State’s January 4 motion asked the circuit court to admit 14 statements under both the statute and the common law. The court ruled as to the admissibility of each of those statements in its May 18 order and it did not reserve ruling as to any of those statements. Thus, the circuit court’s May 18 order was an appealable order under Rule 604(a) (People v. Abata, 165 Ill. App. 3d 184, 186-87 (1988); Williams, 138 Ill. 2d at 391), and the Taylor rule’s 30-day time limit started to run upon issuance of that order. The fact that the May 18 order did not address every legal theory or ground for admission raised in the State’s motion did not change this fact. Holmes, 235 Ill. 2d at 67; Williams, 138 Ill. 2d at 390-91. Under the Taylor rule, the State was required to appeal or move to reconsider the May 18 order within 30 days. Because the State failed to do so, it was barred from relitigating the suppression of those hearsay statements before the circuit court under any legal theory that was raised or could have been raised in the initial motion, even a theory that was not previously considered by the circuit court. Holmes, 235 Ill. 2d at 67; Williams, 138 Ill. 2d at 390-91; see also People v. Daniels, 346 Ill. App. 3d 350, 360 (2004); People v. Lawson, 327 Ill. App. 3d 60, 67 (2001). That includes the State’s argument for the admission of the hearsay statements under the common law, an argument that the State actually did raise in its initial motion. Accordingly, both the State’s June 30 motion to reconsider and its subsequent notices of appeal were untimely and jurisdictionally barred.
¶ 43 The dissent takes issue with this analysis in several respects. Although we disagree with
¶ 44 First, the dissent contends that the State’s June 30 motion was timely filed because it sought to secure a ruling on the common law argument that the State had raised in its initial motion but that the circuit court had “ignored” in its May 18 order. Infra ¶¶ 92, 96; see also infra ¶¶ 85-91. Based on this premise, the dissent maintains that the State’s appeal of the circuit court’s order denying the State’s June 30 motion was timely, and that the Taylor rule does not apply. Infra ¶¶ 85-96. The dissent fails to recognize that it is the circuit court’s suppression order itself–not a ruling on the subsidiary issues or legal theories upon which the order may or may not have turned–that triggers the 30-day deadline for appeal or reconsideration under the Taylor rule. Williams, 138 Ill. 2d at 391. After that deadline has passed, the order suppressing evidence bars the litigation or appeal of any legal issues that could have been asserted in favor of the admission of that evidence, whether those issues were raised before the suppression order was issued (as here) or not. Williams, 138 Ill. 2d at 392 (holding that, like res judicata, the Taylor rule applies to all issues that “were or could have been” raised earlier).9 In short, for purposes of the Taylor rule, what matters is the circuit court’s judgment suppressing the evidence, not its reasons for doing so.
¶ 45 Here, the court issued an order on May 18 excluding some of the hearsay statements proffered by the State. That suppression order was immediately appealable under the Taylor rule regardless of whether it addressed each (or any) theory of admissibility raised by the State. Holmes, 235 Ill. 2d at 67; Williams, 138 Ill. 2d at 391. Thus, if the State desired either to appeal that suppression order or challenge the order before the circuit court, it was required to do so within 30 days. The fact that the May 18 order did not expressly address the State’s common law argument or explain the circuit court’s reasons for disregarding that argument is immaterial. After 30 days passed, the State could no longer challenge the circuit court’s suppression of the 8 statements at issue unless it could show “a material change in the facts that could not have been presented earlier with due diligence.” Holmes, 235 Ill. 2d at 61, 67; see also Williams, 138 Ill. 2d at 394. The State has failed to make such a showing. Thus, the State’s June 30 motion was untimely, and we lack jurisdiction to review the circuit court’s denial of that motion.10
¶ 46 The dissent’s assertion that the State could not have appealed or moved to reconsider the
¶ 48 Moreover, the fact that the May 18 order is arguably in tension with the Illinois common law of forfeiture by wrongdoing as articulated by the supreme court in Stechly and Hanson does not render the order nonbinding under the Taylor rule. As noted above, the Taylor rule “most resembles [the doctrine of] res judicata” (Williams, 138 Ill. 2d at 392; see also id. at 393) which “is not dependent upon the correctness of the judgment *** on which it is based” (People v. Kidd, 398 Ill. 405, 410 (1947)). Even a “manifestly erroneous” judgement issued by a court of competent jurisdiction “is binding upon all parties and privies until it is reversed or set aside.” Id. at 409; see also Pierog v. H.F. Karl Contractors, Inc., 39 Ill. App. 3d 1057, 1060 (1976) (“The res judicata effect of a prior judgment is not mitigated by the fact that it rests upon an erroneous view of the law; nor is the value of a plea of res judicata determined by the reasons given by a court in support of the prior judgment.”). Thus, if a party fails to timely appeal a valid but erroneous judgment entered against it, res judicata bars re-litigation of any issues that were raised or could have been raised below. See, e.g., Patzner v. Baise, 144 Ill. App. 3d 42, 44 (1986). Because the Taylor rule’s “closest analogue” is res judicata, the same principle should apply here. See Williams, 138 Ill. 2d at 390 (citing Harris v. Chicago House Wrecking Co., 314 Ill. 500 (1924) for the proposition that an unappealed order binds a party “no matter how erroneous it might have been at the time it was entered”). The Taylor rule would be meaningless if the preclusive effect it affords could be avoided based merely on a claim that the circuit court’s order involved legal error.
B. Rule 606
¶ 50 The State also argues, however, that its failure to file a timely appeal should be excused under Supreme Court Rule 606.
¶ 51 Rule 606 cannot excuse the State’s failure to file a timely appeal in this case. First, the State’s June 30 motion to reconsider did not toll the 30-day deadline for filing a notice of appeal under Rule 606(b) because, as noted above, that motion was not timely. Second, the State is not entitled to file a late notice of appeal under Rule 606(c) because the State has failed to show a “reasonable excuse” for its untimely appeal. The only excuse that the State offers for its tardiness is its claim that Hanson changed the common law doctrine of forfeiture by wrongdoing. As shown above, however, that claim is unsupportable.13 Thus, the State may not invoke Rule 606(c) in this case.
¶ 52 The fact that the supreme court denied the defendant’s motion for a supervisory order which sought to vacate this court’s ruling allowing the State to file a late notice of interlocutory appeal under Rule 606(c) is of no consequence. “[The] supreme court’s denial of a motion for a supervisory order does not have the effect of a ruling on any issue, nor does it support the decision of the lowеr court.” People ex rel. Madigan v. Illinois Commerce Comm’n, 407 Ill. App. 3d 207, 218 (2010); see also Roth v. St. Elizabeth’s Hospital, 241 Ill. App. 3d 407, 417 (1993) (reversing the circuit court’s ruling and rejecting the circuit court’s finding that the supreme court’s denial of the appellant’s motion for supervisory order supported the circuit court’s ruling and decided the matter at issue). Moreover, it would be particularly inappropriate to assume that the supreme court decided the merits of the jurisdictional issue raised by the defendant’s motion in this case because the State urged the supreme court to reject the defendant’s motion for reasons other than the merits of the jurisdictional issue; for example, the State argued that the defendant’s motion should be denied because the defendant had sought the wrong remedy and because he had failed to provide a proper supporting record to the supreme court. Thus, there is no reasonable basis to conclude that the supreme court’s denial of the defendant’s motion was a determination
¶ 53 Accordingly, the State may not invoke Rule 606(c) to save its untimely appeal in this case. Although we initially granted the State leave to file a late notice of appeal, we have a continuing obligation to review our own jurisdiction over any matter before us. This obligation includes the duty to reconsider the question of our jurisdiction if our earlier ruling finding jurisdiction appears to be erroneous. Fair Automotive Repair, Inc. v. Car-X Service Systems, Inc., 128 Ill. App. 3d 763, 773 (1984). Upon further review, we conclude that Rule 606(c) cannot cure the jurisdictional defect in this case. Because the Taylor rule operates to bar the State’s appeal of the circuit court’s order refusing to admit certain hearsay statements and the State has shown no “reasonable excuse” for its untimely appeal, we lack jurisdiction and appeal No. 3-10-0514 must be dismissed.
C. “Suppression” Under Rule 604(a)(1)
¶ 55 There is an additional potential jurisdictional concern that bears mentioning. Although we do not decide the issue, we note that the circuit court’s exclusion of some of the eight hearsay statements at issue might not amount to the “suppression of evidence” under Rule 604(a)(1). In pertinent part,
¶ 56 Here, the content of at least some of the hearsay statements that the circuit court excluded can be presented to the jury in another manner because other statements that the court found admissible express the same information. For example, the circuit court excluded a statement which Stacy allegedly made to Scott Rossetto regarding her alleged encounter with the defendant on the night that Kathleen died. However, Stacy allegedly made a similar statement to her pastor in which she recounted the same incident in greater detail. The court found the latter statement admissible under the statute. In addition, the circuit court excluded a statement that Kathleen allegedly made to Kristen Anderson regarding a confrontation between Kathleen and the defendant that allegedly toоk place in July 2002. However, Kathleen told the same story in far greater detail in her letter to the Will County State’s Attorney and in her written report of the incident to the Bolingbrook police,
II. ADMISSIBILITY OF OTHER-CRIMES EVIDENCE
¶ 58 In appeal Nos. 3-10-0515 and 3-10-0550, the State argues that the circuit court erred when it denied the State’s motion in limine with regard to other-crimes evidence. Specifically, the State contends that the court erroneously excluded the testimony of Eric Peterson, Anna Doman, and Victoria Connolly.
¶ 59 The question of whether other-crimes evidence is admissible is a matter within the circuit court’s discretion. People v. Dabbs, 239 Ill. 2d 277, 284 (2010). We review the court’s ruling on the admissibility of other-crimes evidence with deference (People v. Donoho, 204 Ill. 2d 159, 186 (2003)), and we will not disturb that ruling absent an abuse of discretion (Dabbs, 239 Ill. 2d at 284). A trial court abuses its discretion when its ruling is “arbitrary, fanciful, unreasonable,” or when “no reasonable [person] would take the view adopted by the trial court.” (Internal quotation marks omitted.) People v. Illgen, 145 Ill. 2d 353, 364 (1991).
¶ 60 At common law, other-crimes evidence is admissible only if it is relevant to matters other than the defendant’s propensity to commit crimes, such as the motive and intent of the accused. Dabbs, 239 Ill. 2d at 284-85; Illgen, 145 Ill. 2d at 364; see also
¶ 61 However, evidence of prior acts of domestic violence may not be admitted under section 115-7.4 if the probative value of the evidence is substantially outweighed by the risk of undue prejudice to the defendant. Dabbs, 239 Ill. 2d at 291. The same limitation applies under the common law. See, e.g., People v. Turner, 373 Ill. App. 3d 121, 127 (2007); People v. Smith, 236 Ill. App. 3d 1060, 1062 (1992). In weighing the probative value of other crimes
¶ 62 In this case, the State argued that the testimony of Eric Peterson, Anna Doman, and Victoria Connolly regarding the defendant’s alleged prior crimes was admissible under the common law to show the defendant’s motive and intent, and was admissible under section 115-7.4 to show the defendant’s propensity to commit crimes of domestic violence. In excluding this testimony, the circuit court focused on the fact that the alleged other crimes occurred several years before the charged offense. In finding that the alleged prior offenses were too remote in time, the court implicitly found that the prejudicial effect of the State’s other-crimes evidence outweighed its probative value.
¶ 63 “We ordinarily presume that the trial judge knows and follows the law unless the record indicates otherwise.” People v. Gaultney, 174 Ill. 2d 410, 420 (1996). While “the admissibility of other-crimes evidence should not, and indeed cannot, be controlled solely by the number of years that have elapsed between the prior offense and the crime charged” (Illgen, 145 Ill. 2d at 370), the fact that the court only mentioned remoteness when it excluded the evidence is not an indiсation that the court performed a truncated or incomplete analysis. The court stated it had read the applicable case law when it ruled on these matters under the statute. The court simply found remoteness to be the overriding factor. We have found nothing in the record to rebut the presumption that the court knew and followed the applicable law.
¶ 64 Moreover, even if the circuit court failed to consider each of the factors for determining whether alleged other crimes may be admitted under section 115-7.4 or under the common law, we may affirm if the court’s decision is supported by the record. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 97 (1995) (noting that a reviewing court “can sustain the decision of a lower court on any grounds which are called for by the record, regardless of whether the lower court relied on those grounds and regardless of whether the lower court’s reasoning was correct”); People v. Reed, 361 Ill. App. 3d 995, 1000 (2005) (“[w]e review the trial court’s judgment, not its rationale,” and “[w]e can affirm for any reason the record supports”). Thus, regardless of the reasoning employed by the circuit court, the ultimate issue is whether it would be an abuse of discretion to conclude that the unduly prejudicial effect of defendant’s alleged prior bad acts outweighed their probative value to show motive, intent, or propensity to commit crimes of domestic violence. See
¶ 65 The circuit court did not abuse its discretion in this case. Although the alleged prior incidents shared some factual similarities to the charged conduct and were arguably relevant to show the defendant’s motive, intent, and propensity, all of these incidents occurred many years before the charged offense. The 1993 incident occurred approximately 11 years before the charged offense and the incidents involving Connolly occurred between approximately 12 and 22 years before the charged offense. Although the remoteness of these alleged prior incidents is not dispositive (Illgen, 145 Ill. 2d at 370), it is a relevant consideration that
¶ 66 Moreover, some of the alleged prior incidents are factually dissimilar from the charged conduct in some material respects. For example, unlike the alleged conduct at issue in this case, the defendant’s alleged abuse of Kathleen in 1993 did not take place while a divorce proceeding was pending and did not involve violence or threats used to intimidate Kathleen into dropping her legal claims. Moreover, the alleged abuse of Connolly involved a different victim. Although these factual differences, standing alone, do not render the proffered other-crimes evidence inadmissible (Dabbs, 239 Ill. 2d at 293; Illgen, 145 Ill. 2d at 373), they diminish the probative value of the evidence and augment its prejudicial impact. See People v. Wilson, 214 Ill. 2d 127, 142 (2005) (“As factual similarities increase, so does the relevance or probative value.”); Smith, 406 Ill. App. 3d at 754 (“as the number of dissimilarities increase, so does the prejudicial effect of the other-crimes evidence” (internal quotation marks omitted)); see generally
¶ 67 Under the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the circuit court. Donoho, 204 Ill. 2d at 186; Illgen, 145 Ill. 2d at 371. The reviewing court must give “deference to the trial court’s ability to evaluate the impact of the evidence on the jury.” Donoho, 204 Ill. 2d at 186 (citing Illgen, 145 Ill. 2d at 375-76). When applying this deferential standard, we must uphold the trial court’s decision even if “reasonable minds [can] differ” about whether such evidence is admissible. Illgen, 145 Ill. 2d at 375-76. As noted above, we may reverse only if the trial court’s decision was “arbitrary,” “fanciful,” or “unreasonable,” such that “no reasonable [person] would take the view adopted by the trial court.” (Internal quotation marks omitted.) Illgen, 145 Ill. 2d at 364. The circuit court’s ruling in this case is not reversible under this highly deferential standard. Although reasonable minds might disagree on whether the State’s motion in limine should have been granted at this stage of the proceedings, we cannot say that the court’s pretrial ruling rose to the level of an abuse of discretion. See Smith, 406 Ill. App. 3d at 751.
III. ADMISSIBILITY OF PROPOSED EXPERT TESTIMONY
¶ 69 In appeal Nos. 3-10-0513 and 3-10-0546, the State argues that the circuit court erred when it prohibited Diane Panos from offering expert opinions as to: (1) what the judge in the divorce case would have ultimately ruled at the marital property distribution proceeding had Kathleen lived; and (2) what the defendant’s attorney in that case would have advised him to expect to occur.
¶ 71 In this case, the circuit court did not abuse its discretion when it limited Panos‘s proposed expert testimony. Experts may not testify as to statutory interpretation or legal conclusiоns. LID Associates v. Dolan, 324 Ill. App. 3d 1047, 1058 (2001); see also Christou v. Arlington Park-Washington Park Race Tracks Corp., 104 Ill. App. 3d 257, 261 (1982) (noting that not even attorneys can testify as experts as to statutory interpretation). Further, expert testimony that is based on speculation or conjecture will be excluded. People v. Patel, 366 Ill. App. 3d 255, 272 (2006). Here, Panos‘s opinion on how the judge would have ruled was speculative and therefore not the proper subject of expert testimony.
¶ 72 Moreover, the State‘s argument that Panos‘s excluded testimony was admissible because it was “representative of what a reasonably competent divorce lawyer would have advised defendant to expect to occur” is unavailing. As the circuit court noted, this is not a legal malpractice case in which such testimony may be relevant. While what the defendant in fact knew about the divorce case and when he knew it would arguably be relevant to the defendant‘s motive and intent in this case, Panos is not an expert on what the defendant in fact knew. It appears that the court indicated it would allow Panos to testify regarding the issues facing the parties in the divorce proceeding based on the “statutory scheme,” which would include matters such as support, custody, property division, pensions, and financial issues under the
¶ 73 For these reasons, we hold that the circuit court did not abuse its discretion when it prohibited Diane Panos from testifying as to: (1) what the judge in the divorce case would have ultimately ruled at the marital property distribution proceeding had Kathleen lived; and (2) what the defendant‘s attorney in that case would have advised him to expect to occur.
¶ 74 CONCLUSION
¶ 75 The State‘s interlocutory appeal оf the circuit court‘s refusal to admit 8 of the 14 hearsay statements offered by the State under the common law doctrine of forfeiture by wrongdoing was untimely filed. The State has not shown any material change in facts that would justify an untimely filing under
¶ 76 Moreover, although reasonable minds may disagree on whether the circuit court should have granted the State‘s motion in limine to admit evidence of other crimes allegedly committed by the defendant, our review of the circuit court‘s ruling on the issue is extremely limited under the law. We may not substitute our judgment for that of the circuit court, and we may reverse only if we find that the circuit court abused its discretion. That occurs only when the circuit court‘s ruling was so arbitrary and unreasonable that no reasonable person would take the view adopted by the circuit court. Here, the circuit court found that the alleged other crimes at issue were excessively remote in time. Moreover, the alleged prior offenses were unlike the charged offense in some important respects. Taken together, these facts diminish the probative value of the evidence and increase the likelihood that the admission of the evidence would unfairly prejudice the defendant. Thus, the circuit court‘s decision to exclude the evidence was not arbitrary or unreasonable, and its ruling is not reversible under the highly deferential abuse of discretion standard.
¶ 77 Finally, we uphold the circuit court‘s decision prohibiting attorney Diane Panos from testifying as to what the judge in the divorce case would have ultimately ruled had Kathleen lived and what the defendant‘s attorney in that case would have advised him. Those matters are speculative and are not the proper subject of expert testimony. Thus, the circuit court‘s refusal to аllow Panos to testify as an expert on these matters was correct and was not an abuse of discretion.
¶ 78 No. 3-10-0514, Dismissed for lack of jurisdiction.
¶ 79 Nos. 3-10-0515 and 3-10-0550, Affirmed; cause remanded.
¶ 80 Nos. 3-10-0513 and 3-10-0546, Affirmed; cause remanded.
¶ 81 PRESIDING JUSTICE CARTER, concurring in part and dissenting in part:
¶ 82 I concur with the result that the circuit court did not abuse its discretion when it excluded the State‘s other-crimes evidence, but I do not join in the entirety of the majority‘s analysis on that issue. I disagree with the majority‘s independent assessment of the strength of the evidence (supra ¶¶ 64-66) because, arguably, the incidents are relevant to show motive and intent. I concur with the result and supporting analysis that the circuit court did not abuse its discretion when it limited the expert testimony of Diane Panos. However, I respectfully dissent from the majority‘s conclusion that we lack jurisdiction to hear the State‘s appeal with regard to the admissibility of the eight hearsay statements of Kathleen Savio and Stacy Peterson under the forfeiture by wrongdoing doctrine.
¶ 83 What divides this panel on the jurisdiction issue in this case is a difference of opinion regarding the nature of this appeal and the extent and reach of the rule from People v. Taylor, 50 Ill. 2d 136 (1971). I strongly disagree with the majority‘s assertion that the Taylor rule applies, as I believe the State filed a timely motion on June 30 and a timely appeal from the circuit court‘s July 6 order. Furthermore, even if the Taylor rule did apply, I do not believe the rule should operate in the formalistic manner suggested by the majority. I do not agree with the majority‘s suggestion that the State and the court should be bound at trial by a manifestly erroneous ruling that contravenes a June 2010 decision from our supreme court
¶ 84 I. Jurisdiction Under Rule 604(a)(1)
¶ 85 The majority concludes that pursuant to the Taylor rule, the State had to file its notice of appeal, without exception, within 30 days of the circuit court‘s May 18 order because the State failed to file a timely motion to reconsider. Supra ¶ 31. The majority‘s ruling is erroneous and irremediably flawed because it assumes a proposition that it cannot support—namely, that the order at issue is the May 18 order.
¶ 86 To understand why the majority‘s ruling on this issue is erroneous, it is necessary to understand the procedural history of this case. On January 4, 2010, the State filed a pretrial motion to admit 15 hearsay statements under
“reconsider its decision to deny the People‘s request to admit the hearsay statements previously not admitted under the statutory criteria, and that this Court find that the hearsay statements are admissible at trial under the common law doctrine of forfeiture by wrongdoing and Federal Rule of Evidence 804(b)(6).
WHEREFORE, the People request this Court to reconsider its ruling on the statements previously excluded under the statutory criteria, and, pursuant to the common law doctrine of forfeiture by wrongdoing and Federal Rule of Evidence 804(b)(6), admit those statements at trial.”
¶ 87 On July 6, 2010, the circuit court denied the State‘s motion, which it construed as a mоtion to reconsider the May 18 order. Two days later, the court clarified that it so ruled because it believed the statute codified, and therefore supplanted, the common law doctrine of forfeiture by wrongdoing.
¶ 88 On July 7, 2010, the State filed a notice of appeal from the circuit court‘s May 18 and July 6 orders. The notice of appeal indicated that the State was appealing from the May 18
¶ 89 In arriving at its ruling on this issue, the majority operates from the assumption that “[t]he order at issue in this case was issued by the circuit court on May 18, 2010.” Supra ¶ 31. In interlocutory appeals such as the instant case, our jurisdiction to hear the appeal hinges on whether the State filed a timely notice of appeal from a ruling of the circuit court.
¶ 90 The majority attempts to downplay the importance of the circuit court‘s failure to rule on the State‘s common law argument on May 18 when it claims, without citation to аuthority:
“[T]he court‘s May 18, 2010, order did not address the common law rule or reserve ruling on that issue. Ten days later, in response to the defendant‘s motion for clarification, the circuit court confirmed that it did not consider the common law doctrine in rendering its decision. For that reason alone, the State could have appealed or moved to reconsider the order within 30 days.” Supra ¶ 37.
I submit that the majority cites no authority because there is absolutely no support in the law for this claim. Our supreme court has acknowledged for over 100 years that “[t]he rule in this state is clear and well settled that a party litigant can only complain where he has objected and obtained a ruling and excepted to it, or excepted to the refusal of the court to act.” Lipsey v. People, 227 Ill. 364, 373 (1907). By the majority‘s own acknowledgment, the court did not rule on the State‘s common law argument on May 18. Supra ¶¶ 12, 37, 39. Thus, the majority‘s claim that “the State could have appealed or moved to reconsider the [May 18] order within 30 days” (supra ¶ 37) is incorrect. An appeal from the circuit court‘s failure to rule on the State‘s common law argument would have resulted in the forfeiture of the common law issue on appeal. See Lipsey, 227 Ill. at 373; see also People v. Urdiales, 225 Ill. 2d 354, 425 (2007) (“[a] movant has the responsibility to obtain a ruling on his motion if he is to avoid forfeiture on appeal“).
¶ 91 The majority repeatedly claims throughout its opinion that the State‘s June 30 motion
¶ 92 The majority‘s emphasis on “reconsideration” ignores the substance of the State‘s June 30 motion, which is what determines a motion‘s character. See, e.g., People v. Harper, 345 Ill. App. 3d 276, 284 (2003). The State‘s June 30 motion sought, for a second time, the circuit court‘s ruling on its common law argument because the court ignored that argument on May 18. The State‘s approach was appropriate under the circumstances. See generally Urdiales, 225 Ill. 2d at 425 (“[a] movant has the responsibility to obtain a ruling on his motion if he is to avoid forfeiture on appeal“); see also Rinesmith v. Sterling, 293 Ill. App. 3d 344, 348 (1997) (duty is on the party to obtain a separate ruling as to each portion of an offer of proof to preserve any error); People v. Beasley, 307 Ill. App. 3d 200, 207 (1999) (“‘trial court does not have a duty to consider all possible theories; rather, its task is to rule on the basis of the theories presented‘” (quoting People v. Hamilton, 283 Ill. App. 3d 854, 861 (1996) rev‘d on other grounds, 179 Ill. 2d 319 (1997))).
¶ 93 The State‘s June 30 motion as to the common law basis could not have been a motion to reconsider the May 18 order, as the circuit court could not reconsider something that it never considered in the first place. Thus, the majority‘s characterization of the State‘s June 30 motion as a motion to reconsider the May 18 order contravenes the actual circumstances of this case.
¶ 94 In addition, the majority improperly extends the principle that “the Taylor rule applies to prior orders per se and is therefore not limited to issues actually considered, but also covers any issues that could have been raised in the earlier proceeding” (People v. Holmes, 235 Ill. 2d 59, 67 (2009)), to the very different circumstances presented by this case. Here, we are not faced with a situation in which an issue either was actually considered or could have been raised, but was not. Rather, this case involves a situation in which the State raised the common law issue, but the circuit court failed to rule on that issuе. The State raised the issue again on June 30, and the court finally decided it on July 6 by denying the motion.
¶ 95 Thus, the majority has no basis to equate the instant circumstance, in which an issue was raised but was ignored by the circuit court, with a circumstance in which an issue is actually considered or could have been raised, but was not (see, e.g., Holmes, 235 Ill. 2d at 67-68). The four cases cited by the majority in this regard do not stand for the proposition that the Taylor rule prevents the State from attempting to secure a ruling on an issue raised but ignored by the circuit court. See Holmes, 235 Ill. 2d at 68 (State attempted to raise an issue that could have been raised at the original suppression hearing); People v. Williams, 138 Ill. 2d 377, 396 (1990) (State‘s attenuation argument was not presented to the circuit court at the original suppression hearing); People v. Daniels, 346 Ill. App. 3d 350, 360 (2004) (defendant
¶ 96 In sum, the Taylor rule is inapplicable because the State‘s June 30 motion was a timely filed motion, as it sought to secure a ruling on the common law argument that the circuit court ignored on May 18. The court finally ruled, by its denial of the State‘s motion, on the State‘s common law argument on July 6. The State filed a notice of appeal from that ruling on July 7, then amended the notice of appeal on July 23. Thus, contrary to the majority‘s position, I would find that the State‘s notice of appeal was timely filed and therefore was sufficient to confer jurisdiction on this court over the July 6 order.
¶ 97 II. The Circuit Court‘s July 6 Ruling Was Manifestly Erroneous
¶ 98 The circuit court‘s July 6 ruling was a denial of a motion in limine filed on June 30. “Motions in limine are designed to call to the attention of a trial court, in advance of trial, some evidence which, because of its potentially prejudicial nature, cannot be discussed in the jury‘s presence until the court has determined it is admissible.” People v. Owen, 299 Ill. App. 3d 818, 822 (1998). Motions in limine can be used by either the proponent or opponent of certain evidence; the former requests a ruling that the evidence is admissible at trial, while the latter requests a ruling that the evidence should be excluded at trial. Owen, 299 Ill. App. 3d at 822; see also Michael H. Graham, Graham‘s Handbook of Illinois Evidence § 103.9, at 44 (10th ed. 2010). Because motions in limine invoke the circuit court‘s inherent power to admit or exclude evidence, a court‘s decision thereon is typically reviewed for an abuse of discretion. Williams, 188 Ill. 2d at 369. However, “[w]here a trial court‘s exercise of discretion has been frustrated by an erroneous rule of law,” our review is de novo. Williams, 188 Ill. 2d at 369.
¶ 99 At the heart of the circuit court‘s July 6 order was its belief that
¶ 100 At common law, the doctrine of forfeiture by wrongdoing provides a hearsay exception for “[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.”
¶ 101 In contrast to the forfeiture by wrongdoing doctrine, as clarified by Hanson, reliability is an element of the statutory hearsay exception for the intentional murder of a witness (
¶ 102 On September 27, 2010, our supreme court adopted the Illinois Rules of Evidence, which became effective in Illinois courts on January 1, 2011. The Illinois Rules of Evidence codified and replaced the common law rules of evidence in this state, including the forfeiture by wrongdoing doctrine. Under
¶ 103
¶ 104 While the circuit court‘s exercise of discretion in excluding the eight hearsay statements was frustrated by a manifestly erroneous rule of law, the court nevertheless made the appropriate and necessary factual findings for the evidence to be admissible under
¶ 106 I also disagree with the majority‘s position regarding the historical reach of the common law doctrine of forfeiture by wrongdoing in Illinois evidence, including its claim that Hanson did not represent a change in the law. Contrary to the majority position, the doctrine was not deeply embedded into the tissues of Illinois evidence law prior to People v. Stechly, 225 Ill. 2d 246 (2007), and Hanson. The doctrine was first accepted in Illinois by the appellate court in People v. Melchor, 362 Ill. App. 3d 335, 345 (2005), vacated & remanded on other grounds, 226 Ill. 2d 24 (2007). Noteworthy for purposes of this discussion is that the Melchor court claimed that no Illinois case had adopted the federal version of the forfeiture by wrongdoing doctrine (
¶ 107 In fact, our supreme court declined to adopt the forfeiture by wrongdoing exception to hearsay as early as 1856 (Bergen v. People, 17 Ill. 426, 427-28 (1856)), despite its English common law roots dating back to 1666 (see Lord Morley‘s Case, 6 How. St. Tr. 769, 771 (H.L. 1666)). Bergen referenced an earlier version of the former-testimony hearsay exception when it indicated that if a witness testified at a former trial, and has since died, the witness‘s former testimony could be given into evidence. Bergen, 17 Ill. at 427. That principle is now expressed in
“Here, the witness was not dead, but beyond the jurisdiction of the court, by the procurement of the defendant; and we think the rules of evidence do not permit, in such a case, the admission of the testimony given on the former occasion. [Citations.] Some of the authorities hold that, in a criminal proceeding, this kind of evidence is not admissible, although the witness be dead; but it is not necessary for us here to decide this question. It is true, if a party in any case spirits away his adversary‘s witness, he ought not to profit thereby; or, at least, suitable penalties should be provided against such conduct, but it is for the legislature to correct the evil.” Bergen, 17 Ill. at 427-28.18
¶ 108 In Stechly, 225 Ill. 2d at 268-78, our supreme court recognized and first accepted the forfeiture by wrongdoing doctrine. Thus, arguably, the 1856 Bergen case was not overruled as precedential authority in relevant part until 2007. Then, three years later in Hanson, our supreme court expressly recognized that the doctrine was both an exception to the hearsay rule and it also extinguished confrontation clause issues. Hanson, 238 Ill. 2d at 97. Our supreme court also held, for the first time in Illinois law, that if statements are
¶ 109 Thus, I disagree with the majority‘s assertion that “it was clear long before Hanson that the common law doctrine of forfeiture by wrongdoing was a general hearsay exception in Illinois and that the admission of hearsay statements under the doctrine did not depend upon a showing of reliability.” Supra ¶ 34. While it is true that Stechly held that
¶ 110 The majority‘s discussion of the doctrine‘s history in the federal courts begs the question. A history of the common law doctrine of forfeiture by wrongdoing in the federal courts does not equate with the doctrine‘s history in Illinois. While the United States Supreme Court recognized the forfeiture by wrongdoing doctrine as early as 1878 in Reynolds v. United States, 98 U.S. 145, 158 (1878), our supreme court declined to adopt the doctrine in 1856 in Bergen, did not adopt it until 2007 in Stechly, and clarified it in 2010 in Hanson. The Hanson opinion, issued one week after the majority‘s alleged 30-day deadline had expired for thе State to appeal the May 18 order, marked a material change in the forfeiture by wrongdoing doctrine in Illinois. The Hanson holding that reliability is not a required element of the doctrine was not accreted into precedent in the law of evidence in Illinois until the decision was issued. As such, the circuit court‘s reliance on reliability as a factor to be considered became manifestly erroneous.
¶ 111 IV. Additional Disagreements With the Majority‘s Analysis
¶ 112 First, I submit that the majority‘s discussion that “the circuit court‘s exclusion of some of the eight hearsay statements at issue might not amount to the ‘suppression of evidence’ under Rule 604(a)(1)” (supra ¶ 55) is flawed because it misclassifies the evidence in this case. The majority states that, “[h]ere, the content of at least some of the hearsay statements
¶ 113 Apparently, what is at issue for the majority in this regard is whether the evidence represents the needless presentation of cumulative evidence. See
¶ 114 Second, even if the Taylor rule did apply—which I believe it does not—I do not accept the consequence of the majority‘s ruling on this issue that the State and the circuit court should be bound at trial by the circuit court‘s manifestly erroneous ruling. Our supreme court has not had this type of issue regarding manifestly erroneous rulings presented to it in the context of the Taylor rule and its progeny.
¶ 115 In Williams, our supreme court stated that the Taylor rule is a “discrete rule of Illinois procedure, independent of such related doctrines as collateral estoppel, law of the case, or even res judicata. Of these three doctrines, the Taylor rule most resembles res judicata.” Williams, 138 Ill. 2d at 392. The Williams court contrasted the Taylor rule with the fact that the law-of-the-case doctrine might not “preclude reconsideration of an earlier judge‘s order if the facts before the court changed or error or injustice were manifest.” Williams, 138 Ill. 2d at 392. As a consequence of its analysis, the Williams court adopted an exception to the Taylor rule based on a law-of-the-case principle:
“Even though the Taylor rule‘s closest analogue is res judicata doctrine, we judge that the rule admits of one comparison to law-of-the-case doctrine: As with law of the case, if the facts before the court change materially, the court should not be bound by its former interlocutory ruling but can correct itself in light of the newly presented facts. In order to prevent this exception from swallowing the rule, the new evidence should not
be of a nature that with due diligence could have been presented earlier.” Williams, 138 Ill. 2d at 393-94.
¶ 116 In Illinois, a recognized exception to the law-of-the-case doctrine exists when the supreme court, following the first appeal, makes a contrary ruling on the precise issue of law on which the аppellate court based its former opinion. Relph v. Board of Education of DePue Unit School District No. 103, 84 Ill. 2d 436, 443 (1981); Zerulla v. Supreme Lodge Order of Mutual Protection, 223 Ill. 518, 520 (1906); Rice v. White, 374 Ill. App. 3d 870, 883 (2007); Bisco v. Liberty Mutual Insurance Co., 204 Ill. App. 3d 19, 21-22 (1990); People v. Lyles, 208 Ill. App. 3d 370, 376 (1990). Another exception exists when the appellate court finds its prior decision is palpably erroneous, but only when the court had remanded the case for a new trial. Rice, 374 Ill. App. 3d at 883; Lyles, 208 Ill. App. 3d at 376. The Taylor rule applies res judicata principles to bind the State and the circuit court to certain interlocutory rulings, yet allows the court to correct itself in cases of newly discovered facts under a law-of-the-case principle. Williams, 138 Ill. 2d at 393-94. I would suggest that, following law-of-the-case principles, allowing the State to reopen an issue after a manifestly erroneous ruling would not violate the prohibition on reopening issues for new theories of admission, judge shopping, or fear of piecemeal litigation. See, e.g., Williams, 138 Ill. 2d at 388-89, 396. In addition, reconsideration of a palpably erroneous ruling would not violate the law-of-the-case doctrine‘s purpose “to protect settled expectations of the parties, ensure uniformity of decisions, maintain consistency during the course of a single case, effectuate proper administration of justice, and bring litigation to an end.” Emerson Electric Co. v. Aetna Casualty & Surety Co., 352 Ill. App. 3d 399, 417 (2004). Case law is generally construed to serve the ends of justice and to avoid mischief and needless results, such as the result suggested by the majority that the State and the court are bound by a manifestly erroneous ruling at a future trial.
¶ 117 The May 18 ruling, which used reliability to exclude the eight hearsay statements, is contrary to our supreme court‘s June 24, 2010, decision in Hanson. I believe the question of whether certain evidence is admissible at trial under the forfeiture by wrongdoing doctrine should be decided in accordance with the law as it exists after Hanson.
¶ 118 For the foregoing reasons, I concur in part and dissent in part.