THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD COOKSON, Defendant-Appellant.
Fourth District No. 4-01-0765
Fourth District
Opinion filed December 2, 2002.
I also believe the reference to defendant as a “bad man” based on both crimes was fair discourse. I would affirm outright.
COOK, J., dissenting.
John P. Schmidt, State‘s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Charles F. Mansfield, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE McCULLOUGH delivered the opinion of the court:
A Sangamon County jury found defendant, Donald Cookson, guilty of predatory criminal sexual assault of a child and aggravated criminal sexual abuse.
Although defendant challenges the admissibility of some evidence, he does not contest that, if the trial court properly admitted the evidence, the jury could reasonably find him guilty of predatory criminal sexual assault beyond a reasonable doubt. If admissible, the evidence would establish that defendant, who was 17 years of age or older, had anal sex with his 7-year-old stepdaughter A.C. (born October 6, 1992) on two occasions between March 1 and August 31, 1999.
We initially consider whether the trial court erred in finding A.C. competent to testify. Irrespective of age, every person is qualified to be a witness (
In this case, the trial court conducted a hearing with regard to A.C.‘s competency to testify on May 21, 2001. At that time, A.C. was eight years old. After listening to and observing A.C. testify, the trial court concluded that she had the ability to express herself so as to be understood and that she understood the duty to tell the truth. She testified that she did not know the rules about being in court but stated that she would tell the truth when she testified at trial. She related that she had gotten in trouble for lying in the past. As examples of lying, she stated that she had gotten in trouble for lying when she had, in fact, hit her brother, and that her brother had once lied about not having a cookie.
In Sutherland, the court found no basis for disturbing the finding that a six-year-old child was competent to testify when she knew the difference between lying and telling the truth and said she would tell the truth. Sutherland, 317 Ill. App. 3d at 1125, 743 N.E.2d at 1013; see Dempsey, 242 Ill. App. 3d at 583-84, 610 N.E.2d at 217-18 (a nine-year-old sexual abuse victim was competent to testify); People v. Hoke, 213 Ill. App. 3d 263, 271-72, 571 N.E.2d 1143, 1148 (1991) (two six-year-old children were found competent to testify).
Defendant‘s argument relies on the rules regarding competency of a child witness put forth in People v. Epps, 143 Ill. App. 3d 636, 639, 493 N.E.2d 378, 380 (1986) (“[a] child may testify if he is sufficiently mature to receive correct impressions by means of his senses, to recollect and narrate intelligently, and to appreciate the moral duty to articulate the truth“). The Epps decision, however, predates Public Act 85—1190, which added section 115—14 to the Code of Criminal Procedure effective January 1, 1989.
At the section 115—10 hearing conducted May 21, 2001, the trial court heard the testimony of Landers, Wiese, and Gonzalez. Rice testified at a May 25, 2001, hearing.
Rice testified that, on January 29, 2000, after she took A.C. into protective custody, she took the child for a required health screening. The screening did not involve a gynecological examination. After the examination, Rice drove A.C. to the emergency foster home. Rice had a conversation with the child about marijuana because there had been references to marijuana and cocaine when she picked up A.C. at the police station. A.C. said defendant gave her marijuana, ran bath water, put her in the tub, and “humped on her.” She said he put his “thingy” in her butt. Rice had not asked A.C. any questions about sexual abuse. A.C. just blurted it out. Rice never met or talked to Landers.
Landers, a registered nurse, testified that in response to a general
Wiese testified that the interview of A.C. he and Gonzalez conducted took place in a child-friendly room at the Child Advocacy Center. A.C. used slang terms such as “boobs,” “dick,” and “butt” to express what occurred and stated that defendant put his penis into her anus, pointing to the crack in the buttocks of an anatomically correct drawing. A.C. described two incidents, one occurring in the bathroom and one in the bedroom.
When the interview began, Wiese asked A.C. if she knew why she was there, and she stated because of something that Don and Judy had done to her. A.C. said that one of these incidents occurred in a gray house and the other in a pink house. Wiese was not sure in which house the bathroom incident occurred. At one point, A.C. said that these kinds of things happened all the time, and then later she said these were the only two times. She did not indicate whether defendant had ejaculated.
Gonzalez testified that A.C. indicated she did not want to reside with Don and Judy for what they did to her. At that point, A.C. was asked what they did to her. Gonzalez‘s testimony followed the same tenor as the testimony given by Wiese. According to Gonzalez, the incidents occurred when A.C. was six, and her description of the instances of sexual abuse he deemed “remarkable” for a child of that age.
The State bears the burden of proving that the statements were reliable and not the result of adult prompting or manipulation. People v. Zwart, 151 Ill. 2d 37, 45, 600 N.E.2d 1169, 1172 (1992). Among the factors to be considered in making a reliability determination are (1) the child‘s spontaneity and consistent repetition of the incident, (2) the child‘s mental state, (3) use of terminology unexpected of a child of a similar age, and (4) the lack of motive to fabricate. People v. West, 158 Ill. 2d 155, 164, 632 N.E.2d 1004, 1009 (1994); People v. Simpkins, 297 Ill. App. 3d 668, 676, 697 N.E.2d 302, 307 (1998). In Simpkins, this court also indicated that the court should examine whether the statement was the product of suggestive interview techniques when there had been successive interviews. Simpkins, 297 Ill. App. 3d at 677-78, 697 N.E.2d at 308.
A.C.‘s statements to Landers and Rice were spontaneous and her descriptions of the incidents consistent in each of these statements. She also employed descriptive terminology unexpected from a seven year old. Defendant argues that the reliability is diminished because five months passed between the statements and the occurrences. Delays in reporting sexual acts do not automatically render a child victim‘s statements inadmissible. Zwart, 151 Ill. 2d at 46, 600 N.E.2d at 1173.
Defendant also argues that (1) the results of A.C.‘s examination by Dr. Victoria Nichols-Johnson on February 3, 2000, provided no support for the statements about frequent anal intercourse, (2) during the medical examination A.C. denied defendant had anal intercourse with her but claimed he subjected her to vaginal intercourse, (3) her statement to Wiese and Gonzalez that this type of behavior occurred all the time was contradicted by her statement that it happened only twice, and (4) A.C. had a motive to lie because she did not wish to return to the care of defendant and her mother.
The argument that the medical examination did not provide support for A.C.‘s assertions does not determine the admissibility of her statements in light of the fact that A.C. testified. The remaining points of contention raised by defendant are matters that go to the weight to be accorded the statements rather than to a determination of the admissibility of the statements. Nichols-Johnson testified for the State at trial, and defendant had the opportunity to cross-examine her on the statements made by A.C. to her and the results of the examination. We find no abuse of discretion in admitting testimony of A.C.‘s out-of-court statements.
We next consider whether the trial court committed an abuse of discretion by refusing to admit evidence that A.C. made an allegation of sexual abuse against Richard Aston that DCFS had determined to be unfounded. A.C. and her mother had lived with Aston for a time. Defendant argues that a false allegation is admissible to prove that it is more likely than not that the accusation against defendant is false.
In People v. Nicholl, 210 Ill. App. 3d 1001, 1010-11, 569 N.E.2d 604, 610-11 (1991), the court found reversible error where a DCFS determination of unfounded, concerning an allegation of abuse of a minor, was not admitted into evidence. The court in Nicholl said the evidence was admissible to attack the victim‘s credibility even though it would not absolutely prove that the allegation deemed unfounded was false.
In People v. Mason, 219 Ill. App. 3d 76, 81, 578 N.E.2d 1351, 1355 (1991), this court rejected a similar argument, requiring a showing that the proferred testimony would prove more likely than not that the accusation made on the other occasion was false, to establish its probative value to the case at bar. This court specifically observed that a DCFS determination is a recommendation not to prosecute or continue proceedings and is not a judicial determination or a final determination of the falsity of the accusation. Mason, 219 Ill. App. 3d at 82, 578 N.E.2d at 1356.
We distinguish Gorney because, in that case, the evidence sought to be admitted indicated that on another occasion the victim had indicated a willingness to intentionally lie about being raped (Gorney, 107 Ill. 2d at 58, 481 N.E.2d at 675), and we decline to follow Nicholl. Following the reasoning in Mason, we find no abuse of discretion. DCFS determining an accusation unfounded does not definitely establish that the accusation determined to be unfounded was false and is not probative of whether the accusation against defendant is false.
Defendant‘s last issue is whether the finding of guilty of aggravated criminal sexual abuse should be vacated. In this case, the judgment and sentence referred only to predatory criminal sexual assault and made no reference to aggravated criminal sexual abuse. At the sentencing hearing, the trial court found, and the State conceded, that the abuse charge merged into the predatory assault charge.
“When multiple convictions of greater and lesser offenses are obtained for offenses arising from a single act, a sentence should be
The judgment of the circuit court of Sangamon County is affirmed.
Affirmed.
MYERSCOUGH, P.J., concurs.
JUSTICE COOK, dissenting:
I respectfully dissent. The trial court erred in admitting the hearsay statements of A.C., as related by Detective Wiese and DCFS investigator Gonzalez. The trial court also erred in preventing the jury from knowing that A.C. had falsely accused Richard Aston of the same conduct. I would reverse and remand for a new trial.
A.C. lived with her apparent parents, defendant and his wife Judith Cookson, until August 1999, when Judith and her boyfriend, Richard Aston, took A.C. with them to Hammond, Indiana. In Hammond, Richard, Judith, and A.C. lived on the streets, with Judith engaging in prostitution and Richard acting as her pimp. Richard then took A.C. and disappeared, and Judith contacted defendant, who came to Indiana and, along with Judith, filed a report of child abduction against Richard. Several days later, on January 29, 2000, Richard returned to Illinois and turned A.C. over to authorities. At that time DCFS caseworker Rice spoke to A.C., who told Rice that she had not been to school in a while, that she understood she was going to be placed in a foster home, that she wanted to live in a clean place, and that she did not want to stay with Don (defendant?) and Judith because they fed her nasty food “like dogs or cats would eat.” In response to Rice‘s questioning about marijuana, A.C. told Rice that “daddy” Don had given her marijuana, put her in the bathtub, took out his “thingy” and proceeded to “hump” on her.
A.C.‘s testimony at trial consisted primarily of one- or two-word answers in response to leading questions. Often A.C. changed her answers in response to follow-up questions.
It is exceptional for hearsay evidence that is taken without the opportunity to cross-examine to be admitted under statutes such as section 115—10. Hearsay should be admitted, under the confrontation clause, only where “truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility,” and only where the evidence is “so trustworthy that adversarial testing would add little to [its] reliability.” Idaho v. Wright, 497 U.S. 805, 820-21, 111 L. Ed. 2d 638, 655-56, 110 S. Ct. 3139, 3149 (1990). Absent “particularized guarantees of trustworthiness” the evidence must be excluded. Evidence possessing “particularized guarantees of trustworthiness” must be at least as reliable as evidence admitted under a firmly rooted hearsay exception. Idaho, 497 U.S. at 821, 111 L. Ed. 2d at 656, 110 S. Ct. at 3149. Because of the importance of the right of cross-examination, section 115—10, which places limits on that right, should be strictly construed. People v. Bridgewater, 259 Ill. App. 3d 344, 349, 631 N.E.2d 779, 782 (1994); People v. Bowen, 183 Ill. 2d 103, 126-28, 699 N.E.2d 577, 589-90 (1998) (McMorrow, J., dissenting).
What was there about the child‘s hearsay statements here that made them “particularly worthy of belief“? People v. Coleman, 205 Ill. App. 3d 567, 583-84, 563 N.E.2d 1010, 1020-21 (1990);
The fact that A.C. used terminology unexpected of a child of similar age does not support admission of the hearsay, but in fact weighs against it. A.C. was clearly a streetwise child, but there is no suggestion that knowledge was acquired from activities with defendant. The mistaken reference to anal penetration suggests that A.C. was familiar with the words, but not with what they meant. The logical inference is that A.C.‘s knowledge was acquired during the six months prior to the statements being made, the six months that A.C. spent with Richard and Judith in Indiana. The most troublesome aspect of this case is the possibility that A.C.‘s references to her “daddy” Don are in fact references to her “daddy” Richard. A.C. testified at trial that she had previously been living in Indiana with her mother and a man named Donald. The fact that Detective Wiese, at the time he interviewed A.C., was not aware that she had spent the last six months in the custody of Richard is troublesome. Wiese‘s narration of A.C.‘s statements, given his misunderstanding of the situation, is likely to be misleading. The other witnesses relating A.C.‘s statements may have suffered from the same misunderstanding.
There was clearly a motive to fabricate. A.C.‘s statements were prefaced with her remarks that she wanted to stay in a clean place and she did not want to stay with Don and Judith because they fed her nasty food. Of course A.C. was not “staying” with Don and Judith at the time her statements were made. It is also troublesome that Richard had just returned the child to Illinois after a report of child abduction had been filed against him by defendant and Judith. A.C. testified at trial that Richard had told her to say bad things about Don. Richard, who most recently had control over A.C., clearly had a motive to fabricate testimony against defendant.
A.C.‘s testimony at trial was halting and inconsistent. Were her statements to the four witnesses who repeated her hearsay any better? The hearsay testimony related by Detective Wiese and DCFS investigator Gonzalez was not merely cumulative. It reinforced the testimony of the other witnesses and “lent considerable credence to [the child‘s] testimony at trial, noteworthy for its contradictions.” People v. Mitchell, 155 Ill. 2d 344, 355, 614 N.E.2d 1213, 1218 (1993). Inadmissible hearsay gives the State the advantage of having the
The majority asserts that the contradictions in A.C.‘s statements and testimony “go to the weight to be accorded the statements rather than to a determination of the admissibility of the statements.” 335 Ill. App. 3d at 792. That contradicts the majority‘s listing of the factors to be considered in making a reliability determination under section 115—10(b). The first factor listed is “the child‘s spontaneity and consistent repetition of the incident.” (Emphasis added.) 335 Ill. App. 3d at 791. The child‘s repetition of the incident here was not consistent.
The burden of proof is on the State, not just to show that the statements were made, but that they were “particularly worthy of belief.” What was there about these statements that made them “particularly worthy of belief“? The mere fact that defendant has not proved the statements to be inaccurate does not make them “particularly worthy of belief.” Section 115—10 is a new and controversial statute. It is not sufficient for us to recite that we cannot say that the trial court abused its discretion. The appellate court should maintain some consistency of result at least for certain situations that are common and for which a clear result follows from the spirit as well as the letter of the applicable rules or statutes. In re Estate of Smith, 201 Ill. App. 3d 1005, 1010, 559 N.E.2d 571, 574 (1990). Independent review is necessary to maintain control of, and to clarify, the legal principles governing the factual circumstances necessary to satisfy the protections of the Bill of Rights. Lilly, 527 U.S. at 136, 144 L. Ed. 2d at 134, 119 S. Ct. at 1900.
The trial court further erred by refusing to admit evidence that A.C. made an allegation against Richard Aston that DCFS had determined to be unfounded. A complainant‘s prior or subsequent unfounded allegations of sexual abuse against the accused may be admissible, if they bear upon the complainant‘s credibility. Mason, 219 Ill. App. 3d at 81, 578 N.E.2d at 1355. Defendant must demonstrate only that it is more likely than not that the prior accusations were false. Mason, 219 Ill. App. 3d at 82, 578 N.E.2d at 1356. In Mason, we suggested that a DCFS finding that the accusation was unfounded was not sufficient proof of falsity, where the DCFS file also indicated that defendant admitted improper touching of the complainant. There is
Even beyond that, the fact that A.C. accused Richard of abusing her was relevant to some very material elements of the crime charged in this case and should have been admitted. Evidence of other acts can be admissible if it is intertwined with the instant offense or where it relates to earlier events. People v. Lewis, 243 Ill. App. 3d 618, 625-26, 611 N.E.2d 1334, 1339 (1993). A.C. has stated that she has been sexually attacked by every adult in her life, by her mother, Judith, by her father, Richard, and by her stepfather, defendant. The jury was entitled to know that A.C. made these allegations against everyone, not just against defendant. Preventing the jury from knowing this essential evidence deprived defendant of a fair trial.