People v. Kennebrew, 13 N.E.3d 808

Background

Defendant Reginald Kennebrew was convicted of sexual offenses against a child; one predatory-sexual-assault count was later reduced to aggravated criminal sexual abuse.
At trial the State introduced a videotaped interview of the child (D.C.) from a children’s advocacy center; the trial court admitted the tape conditioned on D.C. testifying.
On the stand D.C. often said she did not remember details of prior statements but did testify to some relevant facts (e.g., lotion application, telling Cierra and Aaliyah, and using pictures at the center).
Defense declined to cross-examine D.C.; the jury viewed the videotape during deliberations and convicted; defendant appealed, was partially remanded and resentencing was pending.
Defendant filed a pro se postconviction petition claiming appellate counsel was ineffective for not arguing the videotape’s admission violated the Confrontation Clause; the trial court dismissed the petition as frivolous and patently without merit.
The appellate court affirmed, holding the child’s gaps in memory did not render her unavailable for Confrontation Clause purposes and thus appellate counsel had no meritorious Confrontation Clause claim to raise.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Kennebrew)	Held
Whether D.C. was "available" at trial for Confrontation Clause purposes	D.C. appeared, took the stand, and answered questions; mere gaps in memory do not make a witness unavailable	D.C. did not provide accusatory testimony at trial and could not "defend or explain" prior statements, so she was effectively unavailable	Held: D.C. was available; presence and willingness to answer sufficed despite memory gaps
Whether admission of the videotaped interview violated Crawford	If declarant appears for cross-examination, Crawford places no constraint on use of prior testimonial statements	Videotape admission violated Crawford because D.C. did not recall/accuse on the stand	Held: Crawford not violated because D.C. was present and subject to questioning; tape admissible
Whether appellate counsel was ineffective for not raising the Confrontation Clause issue on direct appeal	No deficiency: the Confrontation claim lacked arguable merit so omission was reasonable	Counsel was ineffective for failing to raise a substantial Confrontation Clause claim	Held: No ineffective assistance — failure to raise the issue was not objectively unreasonable and caused no prejudice
Whether People v. Learn controls to deem D.C. unavailable	State: Learn is distinguishable/bad law and concerns statutory "testimony" under section 115-10 rather than Confrontation Clause availability	Relies on Learn to argue mere presence answering preliminary questions is insufficient	Held: Learn is distinguishable (and criticized); availability analysis follows Owens/Fensterer/Flores line, not Learn

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (2004) (testimonial-statement rule and that confrontation is satisfied if declarant appears for cross-examination)
United States v. Owens, 484 U.S. 554 (1988) (memory loss does not render witness unavailable; confrontation guarantees opportunity to cross-examine)
Delaware v. Fensterer, 474 U.S. 15 (1985) (confrontation guarantees opportunity for effective cross-examination, not perfect cross-examination)
People v. Flores, 128 Ill. 2d 66 (1989) (Illinois adoption of Owens/Fensterer approach to memory-loss availability)
People v. Redd, 135 Ill. 2d 252 (1990) (out-of-court statements admissible when declarant testifies and is subject to full cross-examination)
People v. Learn, 396 Ill. App. 3d 891 (2009) (distinguished; addressed statutory requirement under section 115-10 rather than Confrontation Clause availability)
People v. Bryant, 391 Ill. App. 3d 1072 (2009) (child’s appearance and willingness to answer sufficed for availability)
In re Brandon P., 2014 IL 116653 (Ill. 2014) (discussed in relation to section 115-10 unavailability in limited facts)