In re E.H.
PRESIDING JUSTICE NEVILLE delivered the modified opinion of the court:
The minor defendant, E.H., was charged in a petition for adjudication of wardship with two counts of aggravated criminal sexual abuse and aggravated criminal sexual assault against K.R. and B.R. After a bench trial, E.H. was found delinquent and made a ward of the court. She was also sentenced to 5 years of probation and was required to register as a sex offender for 10 years. E.H. has filed an appeal from the charges against her asserting that her conviction should be reversed because she was not allowed to cross-examine one of her accusers, which was in violation of her constitutional rights under the confrontation clause.1
E.H. was charged in a petition for adjudication of wardship with two counts of aggravated criminal sexual abuse and aggravated criminal sexual assault against K.R. and B.R. The charges against E.H. were brought as a result of complaints made by the two children regarding alleged occurrences between June and August of 1999 while E.H. was babysitting them at E.H.‘s grandmother‘s home. However, these acts were not reported until one year later, in November of 2000. At the time of the аlleged occurrence, E.H. was 13 years old, and her accusers, K.R. and B.R., were 5 and 2 years old, respectively. K.R. and B.R. made complaints to their grandmother that E.H. made them lick her vaginal area, buttocks and breasts on four separate occasions. Based upon these charges, E.H. was tried, convicted of the charges against her and adjudicated a ward of the State.
Testimony at the Section 115-10 Hearing
Prior to trial, the State requested a heаring pursuant to section 115-10 of the Illinois Code of Criminal Procedure of 1963 (Code) (
At the hearing, K.R. and B.R.‘s grandmother, Mary Ann R., testified that K.R., B.R. and their
Mary Ann testified that the following day, on November 15, 2000, while she was in her bedroom, the girls came in to talk to her again and repeated the details thеy had described the day before. She stated that neither of the girls was hesitant while relating the incident to her and that she did not prompt the girls with questions. Mary Ann testified that K.R. told her the incident occurred during “the summer of 1999.” When Mary Ann asked the children why they had waited so long to tell her about the incident, K.R. told her it was because E.H. had threatened them. When Mary Ann asked her why she had not told her mother about the incident, K.R. stated it was because E.H. had “smacked her in the face” and told her she would smack her again if she told her mother. At the conclusion of the grandmother‘s testimony at the section 115-10 hearing, the court found the statements of K.R. and B.R. to be “reliable” pursuant to section 115-10 and granted the Sate‘s motion to use the statements at trial.
Trial Testimony
At trial, Shareen, Mary Ann, K.R., Jesse Terrazas, an investigator with the Chicago police
Shareen testified that she had known E.H. since E.H. was five years old. She stated that during the summer of 1999, E.H. babysat K.R. and B.R. four times: twice in June, once in July, and once in September. Shareen did not use E.H. as a babysitter again after September of 1999. During the time E.H. was babysitting the girls, the girls did not make any complaints about E.H. Shareen stated she did not learn about the abuse until her mother told her what thе girls said. After her mother told her what the girls said about E.H., Shareen phoned the police. Shareen and her daughters were interviewed at their home by an investigator.
K.R., seven years old at the time of trial, also testified. When asked whether E.H. ever did anything bad to her, K.R. responded, “she made me suck her puckets.” K.R. pointed to her chest to show the court what she meant by “puckets.” K.R. stated that E.H. has two “puckets” and that another word for “puckets” is “breasts.” K.R. also testified that E.H. made her “suck her booty.” When asked where her “booty” was, K.R. pointed to her vaginal area and stated that another word for that area was “front butt.” K.R. further testified that E.H. also made her suck her “back butt.” When asked to show the court where her “back butt” was, K.R. stood up and pointed to her tailbone. When asked if E.H. made her do this more than once, K.R. responded “yes,” but she could not remember how mаny times. K.R. testified that she also saw E.H. do things to her sister, B.R. K.R. stated that E.H. made B.R. suck her “puckets,” “back butt,” and “front butt” also. K.R. stated that during this time all three girls were unclothed. K.R. testified that she removed her clothes because E.H. told her to and that E.H. “smacked” her. K.R. answered affirmatively when asked whether she
Mary Ann, the girls’ grandmother, also testified at trial. Mary Ann retold the circumstances as she told them at the section 115-10 hearing, recounting where the girls were and what they were doing when they first spoke to her about E.H.
Mr. Terrazas, the investigator, testified that he spoke with K.R. and B.R. at their grandmother‘s house on November 20, 2000. During this discussion, K.R. told him that the incident occurred between June and September of 1999. K.R. told Investigator Terrazas that E.H. made her take her clothes off and that K.R. used the words “front booty” and “back booty” to describe E.H.‘s vaginal area and buttocks. When Investigator Terrazas asked K.R. why it had takеn her so long to tell anyone about the incident, K.R. responded that it was because E.H. said she would “whip us again.” Investigator Terrazas also spoke with B.R., who also used the words “front booty” and “back booty” to describe the vaginal area and buttocks.
Bernice Wilkins, the caseworker with DCFS, testified that she visited Mary Ann‘s home on January 16, 2001, to check on K.R. and B.R. Ms. Wilkins spoke to Mary Ann about the statements made to her by K.R. and B.R. Mary Ann told Ms. Wilkins that the children did nоt come and tell her about E.H.; rather, she overheard them talking about it and then questioned them regarding the occurrence.
Ms. H., E.H.‘s grandmother, testified that she was home while E.H. babysat K.R. and B.R. and that she watched them the entire time. Ms. H. stated that the only time they were out of her sight was when they were in front of the house. She also stated that the girls were not upset to be around E.H. She also testified that about a week prior to E.H.‘s arrest, on Novеmber 20, 2000, Shareen
At the close of trial, the judge made a finding of delinquency and E.H. became a ward of the court for the aggravated criminal sexual abuse and the aggravated criminal sexual assault of K.R. and B.R. The judge sentenced E.H. to 5 years of probation and required her to register as а sex offender for 10 years. E.H. appealed from the finding of delinquency and sentence.
Procedural Background
On November 25, 2002, E.H. filed an appellate brief in which she argued that the trial court erred in admitting B.R.‘s statements to her grandmother at trial. She argued that the State did not meet its burden of showing that the statements were sufficiently reliable pursuant to section 115-10.
On March 8, 2004, the United States Suрreme Court decided in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and held that based upon the confrontation clause, testimonial statements of witnesses absent from trial should be admitted only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine
Pursuant to the Crawford decision, the defendant filed a motion to cite the case as additional authority in support of her appeal, which was granted on April 9, 2004. Relying on Crawford in her motion, E.H. argued that her constitutional right to cross-examine B.R. was violated and that her conviction must be reversed.
On May 7, 2004, without addressing Crawford, this court entered an order affirming the trial court‘s decision. In re E.H., No. 1-01-2776 (May 7, 2004) (unpublished order under Supreme Court Rule 23). In re E.H., No. 1-01-2776 (unpublished order under Supreme Court Rule 23) May 7, 2004 (E.H. I), this court (1) concluded that the trial court abused its discretion when it admitted B.R.‘s statements through her grandmother‘s testimony as an exception to the hearsay rule based on section 115-10 of the Code of Criminal Procedure of 1963 (
On May 28, 2004, the defendant filed a petition for rehearing in which she reiterated the
The supreme court vacated the judgment in E.H.II and remanded the case to this court with directions to first consider the non-constitutional issues raised in the trial court and, if necessary, to reach the constitutional issues. In re E.H., 224 Ill. 2d 172, 181-82 (2006). The supreme court prescribed the following procedure for this court to follow: (1) first, to determine whether the trial court erred when it ruled that B.R.‘s hearsay statements were admissible through her grandmother‘s testimony pursuant to section 115-10 of the Code; (2) next, if the trial court erred when it admitted B.R.‘s statеments, then it must be determined whether the error was harmless using the evidentiary harmless error test: whether there is no reasonable probability that the trier of fact would have acquitted the defendant absent the admission of B.R.‘s statements (People v. Nevitt, 135 Ill. 2d 423, 447 (1990)); (3) if the trial court erred when it admitted B.R.‘s statements and the error was not harmless, then E.H. must receive a new trial; and (4) only if the trial court‘s section 115-10 ruling was not error or was error but harmless, do we reach the constitutional issue and determine, using the
ANALYSIS
First, pursuant to the supreme court‘s order, we address the nonconstitutional issue. We must determine whether the trial court erred in when it admitted B.R.‘s outcry statement at trial. We must decide whether B.R.‘s statements, testified to at trial by her grandmother, Mary Ann, constituted inadmissible hearsay. We are alsо mindful that Jesse Terrazas, an investigator with the Chicago police, interviewed B.R.
Section 115-10 of the Code codifies exceptions to the hearsay rule. Section 115-10 provides: “(a) In a prosecution for a physical or sexual act perpetrated upon or against a child under the age of 13, *** the following evidence shall be admitted as an exception to the hearsay rule: (1) testimony by the victim of an out of court statement made by the victim that he or she complained of such act to another; and (2) testimony of an out of court statement made by the victim describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual or physical act against that victim.”
The trial court held a hearing, found E.H.‘s statements reliable, permitted Mary Ann to testify at thе trial, and admitted B.R.‘s hearsay statements through her grandmother‘s testimony. First, in order to determine whether B.R.‘s statements were properly admitted into evidence, we examine “the time, content, and circumstances” surrounding B.R. making her statements to Mary Ann to determine if the statements provide “sufficient safeguards of reliability.”
Next, we examine the contents of the statement. Mary Ann walked in on the girls talking and asked them what they were talking about. The girls then told Mary Ann about the incident with E.H. During two conversations, Mary Ann testified that she did not question or prompt B.R. when talking to her about the incident. We note when examining Mary Ann‘s testimony that K.R., the older child, was first to state her version of the events: K.R. told her grandmother that E.H. made them suck her “puckets” and lick her “front behind” and ” back behind” while E.H. was babysitting them. Then B.R. gave her vеrsion: Mary Ann testified that B.R. also told her that E.H. made them suck her “puckets”
Next, we consider the circumstances surrounding the giving of the statements. We note that the two girls talked to their grandmother at the same time and that B.R.‘s story was identical to K.R.‘s. We also note that B.R. used thе identical words used by K.R. to describe “breast,” “vagina,” and “buttocks“. Finally, we note that the reliability of B.R.‘s statement was not tested in the crucible of cross-examination. Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370.
Once B.R.‘s statements were admitted into evidence, the court was supposed to instruct the jury that the jury was to determine the weight and credibility to be given to the statement and in making the determination to consider the age and maturity of the child.
The next issue we address is whether the admissiоn of B.R.‘s hearsay statements was harmless error. According to Illinois case law, an evidentiary error is harmless ” ‘where there is no reasonable probability that the jury would have acquitted the defendant absent the’ error.” In re E.H., 224 Ill. 2d 172, 180 (2006), quoting People v. Nevitt, 135 Ill. 2d 423, 447 (1990). We note that five witnesses testified at this trial whose testimony is directly related to E.H.‘s alleged commission of the
The testimony from three witnesses concerning the sexual assault was inadmissible hearsay. First, Mary Ann‘s testimony concerning the sexual assault was inadmissible hearsay because the time, contents and the circumstances surrounding B.R. making the statements to her grandmother made B.R.‘s statements unreliable. Second, Jesse Terrazas, the police investigator, obtained some of his accusаtory information concerning the sexual assault from B.R.; therefore, his testimony connecting E.H. to the alleged sexual assault should not have been admitted at the trial. See People v. Jones, 153 Ill. 2d 155, 160 (1992) (a police officer‘s testimony concerning his conversation with a witness or a victim is inadmissible when the substance of the conversation is admitted into evidence to prove the truth of the matter asserted --- that the defendant is the person who committеd the crime); People v. Gacho, 122 Ill. 2d 221, 248 (1988) (when a police officer testifies to the substance of his conversation with a victim, the testimony is objectionable as hearsay). Finally, Bernice Wilkens, the DCFS caseworker, testified that she obtained her information connecting E.H. to the sexual assault from B.R.‘s grandmother. In light of our evidentiary ruling finding that B.R.‘s statements were unreliable and the grandmother‘s testimony was inadmissible hearsay, the caseworker‘s testimony concerning E.H. should not have been admitted at the trial. Jones, 152 Ill. 2d at 160; Gacho, 122 Ill. 2d at 248.
Other than K.R.‘s statements, the only other admissible evidence concerning the sexual assault came from E.H.‘s grandmother. Ms. H. provided exculpatory evidence because she testified that she
In addition, we cannot overlook the fact that the trial judge considered inadmissible hearsay testimony from B.R.‘s grandmother, from police investigator Terrazas, and from DCFS caseworker Wilkens when he reached his verdict. See Jones, 152 Ill. 2d at 160; Gacho, 122 Ill. 2d at 248. When the trial judge is the trier of the fact, there is а presumption that the judge only considered admissible evidence and disregarded inadmissible evidence in reaching his conclusion. People v. Wallenberg, 24 Ill. 2d 350, 354 (1962), citing People v. Alexander, 21 Ill. 2d 347 (1961); People v. Grodkiewicz, 16 Ill. 2d 192 (1959); People v. Burts, 13 Ill. 2d 36 (1958). However, when a trial judge admits inadmissible evidence and considers evidence that was not properly admitted, the judge‘s error rebuts this presumption. Wallenberg, 24 Ill. 2d at 355.
In this case, given the fact that the testimony of three witnesses that connected E.H. to the alleged sexual assault was improperly admitted in this casе, given the fact that two witnesses provided admissible but contradictory testimony regarding E.H. and the alleged sexual assault, and given the fact that inadmissable testimony was admitted, we cannot presume that the trial judge disregarded
For the foregoing reasons, the judgment of the trial court is reversed and remanded.
Reversed and remanded.
QUINN, J., and MURPHY, J., concur.
Notes
Ҥ115-10. Certain hearsay exceptions.
(a) In a prosecution for a physical or sexual act perpetrated upon or against a child under the age of 13, *** the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by the victim of an out of court statement made by the victim that he or she complained of such act to another; and
(2) testimony of an out of court statemеnt made by the victim describing *** an element of an offense which is the subject of a prosecution for a sexual or physical act against that victim.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child or instiutionalized severely, or profoundly mentally retarded person either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement[.]”
725 ILCS 5/115-10 (West 2000) .