People v. Burnett, 46 N.E.3d 1171

Background

Jamaal Burnett was tried and convicted after a bench trial of one count (count V) for violating an order of protection by harassing his former girlfriend, Shanan Krefft; he was sentenced to 3 years in IDOC.
At trial Krefft testified but repeatedly said she could not remember facts from the charged period (March 2–9, 2012); the prosecutor introduced a signed April 6, 2012 typed statement by Krefft describing repeated calls, texts, driving by her motel, and threats.
The trial court admitted Krefft’s prior statement under the Illinois domestic-violence hearsay exception, 725 ILCS 5/115-10.2a, after finding her “unavailable” under that statute (lack of memory and/or persistent refusal to testify despite a court order).
Burnett argued on appeal that admitting Krefft’s testimonial out-of-court statement without an effective opportunity to cross-examine violated his Sixth Amendment confrontation right under Crawford v. Washington.
The appellate court considered whether a witness may be “unavailable” for the statutory hearsay exception yet still be “available” for Sixth Amendment confrontation purposes, and whether the as-applied challenge to the statute was preserved or forfeited.

Issues

Issue	Plaintiff's Argument (People)	Defendant's Argument (Burnett)	Held
Whether Burnett forfeited his Sixth Amendment challenge	Forfeiture: defendant didn’t specifically invoke the Confrontation Clause at trial or in posttrial motion	Constitutional challenge to statute may be raised at any time; Cleary and similar cases allow as-applied review despite lack of trial objection	Forfeiture did not bar review of as-applied constitutional challenge to the statute (court followed precedent allowing such challenges)
Whether the testimonial prior statement was admissible under the Sixth Amendment	Krefft answered some preliminary and offense-related questions at trial, so she was effectively present to "defend or explain" her statement; thus admission did not violate Crawford	The statement was testimonial, Krefft lacked memory and could not be effectively cross-examined; admission violated Crawford	The court held Crawford governs and a testimonial statement is admissible only if declarant is available to be cross-examined, but here Krefft’s substantive answers made her available under Crawford, so admission did not violate the Sixth Amendment
Whether unavailability under 115-10.2a (statutory) equals unavailability under the Confrontation Clause	The statute defines “unavailability” narrowly (persisting refusal or lack of memory) for hearsay purposes; the State argued that satisfying the statute suffices	Burnett argued that the statute was enacted under pre-Crawford law and, as applied, cannot override Crawford’s confrontation requirements	Court held statutory unavailability and constitutional availability are distinct; a witness may be "unavailable" for the hearsay exception yet still be "present to defend or explain" under Crawford; here Krefft’s testimony on harassment rendered her constitutionally available
Whether admitting the statement violated due process or lacked indicia of reliability	The State relied on the statutory framework and the trial court’s findings; no separate due process claim was pressed at length	Burnett argued lack of indicia of reliability and inadequate cross-examination opportunity	Court found no Sixth Amendment violation and affirmed; it also noted the trial court considered credibility and relied on the statement but did not find the statement inadmissible on reliability grounds under Crawford

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (confrontation clause bars admission of testimonial out-of-court statements unless witness unavailable and defendant had prior opportunity to cross-examine)
Ohio v. Roberts, 448 U.S. 56 (pre-Crawford test admitting hearsay if it fell within a firmly rooted exception or had particularized guarantees of trustworthiness)
Michigan v. Bryant, 562 U.S. 344 (Confrontation Clause aims to prevent deprivation of opportunity to cross-examine declarants)
Bullcoming v. New Mexico, 564 U.S. 647 (reaffirming Crawford’s rejection of Roberts framework)
In re Rolandis G., 232 Ill. 2d 13 (discusses that Illinois hearsay exceptions enacted pre-Crawford were designed to conform to Roberts and that Crawford overturned that approach)
In re Brandon P., 2014 IL 116653 (trial-court ruling on witness availability for confrontation reviewed for abuse of discretion)
People v. Cregan, 2014 IL 113600 (describes exceptions to forfeiture and that some constitutional issues properly raised at trial may be reviewed on appeal for judicial economy)
People v. Learn, 396 Ill. App. 3d 891 (discusses relationship between hearsay unavailability and confrontation availability)
People v. Martin, 408 Ill. App. 3d 891 (addresses admission of domestic-violence victim’s statement and confrontation concerns)
People v. Emmett, 264 Ill. App. 3d 296 (holds that an as-applied constitutional challenge to a statute may be raised at any time)