*1 and this court asks to reconsider these arguments individually well collectively. as as We decline and note this court has found penalty Illinois’ death statute to adequate safeguards prevent ensure arbitrary to penalty. imposition capricious the death Kubat 503-04.
CONCLUSION reasons, the foregoing For we affirm defendant’s death convictions and sentences. The clerk of this court is directed to enter an order setting Tuesday, May 1994, as the date on which the sentence of death entered County the circuit court of Cook is to be carried out. to Defendant be executed in the manner (Ill. provided by law. Rev. Stat. par. 5.) The clerk of this court is to send a certified 119— copy of this mandate Corrections, Director of the warden Center, of Stateville Correctional and to the warden of the institution where defendant is confined.
Affirmed. (No. 74768.
THE PEOPLE OF THE STATE OF ILLINOIS, Appel-
lant, v. FITZPATRICK, GEORGE P. Appellee. February
Opinion Rehearing denied filed 1994.— April *2 MILLER, J., FREEMAN, J., dissenting. joined by General, Burris, Attorney Springfield, of Roland W. (Ros- Carlyle Henry Attorney, State’s of Bergmann, Mad- General, and Terence M. alyn Kaplan, B. Solicitor Hurst, Anderson, Assis- sen, and Michael A. Arleen C. Attorneys General, t'ant of Chicago, counsel), of for the People. Kuehn, L.
Clyde Trentman, of Kuehn & Belleville, of for appellee. opinion
CHIEF JUSTICE BILANDIC delivered the of the court: defendant, George Fitzpatrick, charged P. was
by information in the circuit County court of Clinton with seven counts of aggravated criminal sexual assault against his four minor grandchildren in violation of sec 14(b)(1) (Ill. tion of the Criminal Code of 1961 Rev. 12— 14(b)(1)). 14(b)(1) Stat. par. Section 12— 12— states: "The accused commits aggravated criminal sexual if: assault was years age accused or over and commits an penetration act sexual with a years victim who under of age was act when the was committed.” The information in this case alleged that 1, 1989, 1, 1991, between June and June knowingly committed penetration against acts sexual four his grandchildren, all of were whom under 13 *3 years age when the acts were committed. A violation 14(b)(1) felony section ais offense. See Ill. Rev. 12— 14(d). 1989, 38, Stat. par. ch. 12— Next, the State pursuant moved to section 106B—1 (the of the Code of Criminal Procedure of 1963 Child Act) (Ill. 1) Shield Rev. Stat. par. ch. 106B— for an order the allowing testimony of the four grandchildren presented be trial outside the by courtroom means of closed circuit television. The alleged motion would suffer serious children effects, emotional or might other severe adverse or be to reasonably communicate, unable absent an order allowing testimony solely by their presented to be closed circuit television.
The defendant moved to declare the Child Shield Act unconstitutional to the confrontation pursuant (Ill. clause of the Illinois Constitution. Const. art. 8.) Specifically, argued I, § that the Child testify Act, Shield which allows for a child to outside presence subject contempo defendant, of the but by counsel, raneous cross-examination the defendant’s violated the confrontation clause of the Illinois Consti permitted tution because the defendant is not to meet the witness "face to face.” The circuit court held that I, Child Shield Act violated article section and, therefore, Illinois Constitution was unconstitu appealed directly pursu tional. The State to this court 603). (134 Supreme ant to Court Rule 603 Ill. 2d R.
The issue now before this court is whether the Child (Ill. 1) par. Shield Act Rev. Stat. ch. 106B— violates the confrontation clause of the Illinois Constitution (I 8). I, § Const. art. The Child Shield Act ll. provides pertinent part: (a)(1) 106B—1. proceeding prosecution In a in the
"§ assault, an aggravated offense of criminal sexual criminal assault, sexual aggravated criminal sexual abuse or crim- abuse, may testimony inal sexual a court order that the age a child years victim under the of 18 be taken outside by courtroom and shown in the courtroom means of closed circuit television if:
(i) testimony The during proceeding; is taken (ii) judge testimony The by determines that the child victim in the courtroom will result in the child suffering serious emotional distress such that the child reasonably cannot communicate or that the child will suffer severe likely emotional distress that to cause the child to suffer severe adverse effects.
(2) Only prosecuting attorney, attorney for the defendant, judge may and the question the child.” Ill. (a)(2). 38, pars. 1(a)(1), Rev. Stat. 106B — only persons allowed in the room with the child when the child testifies closed circuit television are prosecuting attorney, judge, counsel, defense *4 operators equipment, of the closed circuit television
any person presence whose well-being contributes to the (Ill. of the child. Rev. par. Stat. ch. 106B— 1(b)(1).) Although defendant remains in the court room while the child by testifies circuit televi closed sion, is permitted to communicate with persons by the room testifying where the child is (Ill. any appropriate electronic method. Rev. Stat. (b)(3).) 1(b)(2), pars. ch. Despite protection 106B— Act, afforded a child under provisions of this apply Act do not if the himself pro represents defendant 1(c). se. Ill. Rev. Stat. par. 106B— The defendant contends that the Child Shield Act is unconstitutional it because violates the confrontation clause of by the Illinois denying Constitution a defen- dant’s to face a witness during testimony. Accord- ingly, we must determine whether or not the Illinois Constitution entitles a defendant to a face-to-face encounter with a witness. inquiry guided by
Our is long-standing principles of statutory that, begin by construction. We noting gen eral, the rules of statutory applicable construction are to the construction (People provisions. constitutional ex rel. Bar Chicago Association v. State Board of Elections (1990), 513, 526, citing Coalition for 136 Ill. 2d Political v. Honesty State Board Elections (1976), Of 464.) Ill. 2d This court has long pri held that mary rule statutory construction is to ascertain and (Business give effect to legislative intent. & Professional the Public Interest v. Illinois Commerce for Comm’n (1991), v. 175, 207; People Hare 119 Ill. Legislative 2d intent is best evidenced (Business & language used in the statute. People, Kraft, Inc. 207; 146 Ill. 2d at Professional Edgar 178, 189; Hare, 138 Ill. 119 Ill. 2d at 2d statutory clear and unam language Where biguous, resorting it will be effect without to other given *5 to court need not refer (e.g., aids for construction this Cowlin legislative history). the ex rel. Baker v. People (1992), 193, 197; 2d 154 Ill. Business & Professional 207; (1983), at Boykin v. Ill. People, 2d law,
Applying these basic we conclude principles that the confrontation the Illinois clause of Constitution provides that a defendant is entitled to a face-to-face a The of the language confrontation with witness. Illinois ambiguous. confrontation clause is not The I, confrontation clause article section of the Illinois unequivocally Constitution "In prosecu states: criminal *** tions, the shall right accused have the to meet the added.) (Ill. (Emphasis witnesses Const. face face." I, art. The in the language Illinois Constitu § tion express confers an a face- unqualified right to Clearly, to-face confrontation with a witness witnesses. who by is examined closed television does not circuit provide the with face-to-face encounter defendant the by envisioned Illinois the drafters of the Constitution. Since court language unambiguous the clear and debates, need not must refer to constitutional but provision enforce the as enacted. constitutional argues The State Shield Act does not the Child violate a defendant’s to confrontation under confrontation clause of the Illinois Constitution.
State contends that essence of confrontation under the Illinois Constitution is identical to the essence confrontation afforded of the the sixth amendment State, United According States Constitution. to the essence of confrontation is a defendant’s through confront witnesses vigorous cross-examination. Because the confrontation in the Illinois and clauses United States to be Constitutions are construed same, Supreme insists State the United States Court’s in Maryland decision 497 U.S. Craig v. Ill L. Ed. 2d 110 S. Ct. is applicable to
the instant Relying upon principles case. announced Craig, the State concludes that the Child Shield Act does not violate a defendant’s to confrontation.
In
Craig,
upheld Maryland
statutory
the Court
a
procedure
whereby
child witness in a child abuse case
trial,
against
testified
a defendant
outside
physical presence, by one-way
defendant’s
circuit
closed
(Maryland
Craig
television.
497 U.S.
Ill
L. Ed. 2d
110 S. Ct.
The Court held that
confrontation
clause of the sixth amendment
United States Constitution
criminal
guarantee
does not
*6
right
defendants
an absolute
a
meeting
face-to-face
with
(Craig,
against
witnesses
them at
trial.
Craig,
Maryland
a
statute
In
the Court examined
Craig,
bar.
of the United
to the sixth amendment
respect
with
clause of the
States Constitution.
confrontation
prosecutions,
"In all criminal
sixth amendment
states:
***
enjoy
to be
the accused shall
confronted
added.) (U.S.
(Emphasis
with the witnesses
him.”
against
VI.)
Const.,
counterpart,
amend.
Unlike its Federal
however,
I,
the Illinois Constitution
article
section
clearly, emphatically
unambiguously
requires
distinction,
upon
"face to face” confrontation. Based
in
Supreme
reasoning
Craig
the United States
Court’s
Additionally,
should not be
to the instant case.
applied
previously
interpreting
this court has
held that
it is not bound
the United States
Illinois Constitution
Federal
Supreme
interpretation
Court’s
of similar
v. DiGuida
provisions.
constitutional
See
Pennsylvania
concluding,
Before
we note
reasoning
Court also declined to follow
Supreme
television to
and held that use of closed circuit
Craig
the defendant’s
testimony
transmit
a child’s
violated
to "face to face” confrontation.
State constitutional
(Commonwealth
594 A.2d
527 Pa.
Ludwig
I,
Pennsylvania Constitu-
Article
section
to meet
expressly guarantees
tion
an accused
witnesses "face to face.”
527 Pa.
(Ludwig,
*7
"
282.)
right
A.2d at
The
have no
court noted:
'[W]e
disregard
(unintentionally)
any provi-
or
or distort
erode
constitution,
where,
here,
as
its
especially
sion of the
meaning unmistak-
plain
simple language
and
make its
”
479,
284,
A.2d at
ably
Ludwig,
clear.’
For the above we conclude that the 1) (Ill. Shield Rev. is par. Act Stat. ch. 106B— it unconstitutional because fails to the provide defen a dant with face-to-face confrontation with a witness and thus violates the confrontation clause Illinois (Ill. 8). I, Constitution Const. art. We therefore § judgment affirm the of the circuit court.
Affirmed. FREEMAN, dissenting: JUSTICE (Act) majority The that the Shield Act holds Child (Ill. 1) par. impermissibly Rev. Stat. 106B— right as abridges a defendant’s to confront his accuser II, guaranteed by article section our constitution. However, majority the has failed to demonstrate the of the Illinois substance confrontation clause abridged by application Therefore, of the Act. I respect fully dissent. majority
The interprets the language Illinois’ confrontation clause as "conferring] express an and un qualified to a face-to-face confrontation with (158 witnesses.” Ill. A permitted 2d at witness testify television, via closed provided circuit as for under Act, the denies a defendant face-to-face encounter (158 envisioned the drafters of our constitution. Ill. 365.) Thus, 2d at majority holds Act is unconsti tutional. disagree
I analysis resulting with this To support position, conclusion. its majority attempts a distinction between the Federal and the Illinois I, confrontation clauses. Article section the Illinois states, Constitution prosecutions, "In criminal *** accused shall have the to meet the witnesses (Ill. I, face to face ***.” Const. art. The § "In confrontation clause of the sixth states: amendment prosecutions, enjoy all criminal shall accused *** to be with against confronted the witnesses (U.S. VI.) Const., majority him ***.” amend. reasons provision requires expressly because Illinois
369 encounter, comparable face-to-face Federal confron provision inapposite provision. tation to the Illinois Further, majority reasons, law, Federal decisional particularly, (1990), 836, Maryland Craig 497 U.S. Ill 666, 3157, L. Ed. 2d 110 S. Ct. which examines propriety testimony given via closed-circuit television claim, in the of a context sixth amendment is inapplica ble to this case. mainstay of the majority’s analysis is that
Federal confrontation clause is inapposite to the Illinois provision. The majority only can reach this conclusion by overlooking significant Supreme Court cases which have long established the breadth and of the meaning sixth amendment clause. Even a cursory review of those that, decisions reveals although phrased differently, two provisions are synonymous. No distinction can be drawn protections between the provided by the two clauses where the one simply expressly provides for other, what the though differently, stated intends. 1899, early (1899),
As as in Kirby v. United States 55, 174 890, 894, 574, 577, U.S. 43 L. Ed. 19 S. Ct.
Court described the operation of the clause as follows: fact primarily only by "[A] which can be established *** witnesses cannot be proved against an accused trial, except by witnesses who him at the upon confront whom he can look being while tried ***.” (Emphasis added.) Later, in Dowdell v. United States 325, 330, U.S. 55 L. Ed. 31 S. Ct.
Court provision described a Philippine bill of rights substantially amendment, as the same as the sixth proceeded to interpret it as intended "to secure the tried, accused in the to be far provable so as facts concerned, witnesses are by only such witnesses as added.) meet him at the trial.” (Emphasis face face More recently, in Coy v. Iowa 487 U.S.
L. Ed. 2d 108 S. Ct. the Court detailed the origin of the term tracing "confrontation.” After its origin, the Court stated that "[w]e have never doubted *** Clause guarantees Confrontation defen- meeting dant a with witnesses appearing face-to-face added.) Coy, trier of (Emphasis before the fact.” 487 U.S. *9 1016, 864, at L. Ed. 2d at 101 at 108 S. Ct. to
Unquestionably,
the sixth amendment’s
language,
comparable
confront witnesses
like the
Illinois
clause,
settled,
a face-to-face
That
requires
encounter.
phraseology
provide
the difference in
can
no basis for
majority
the distinction the
seeks make.
to
Furthermore,
it is
that
court
held
significant
this
has
difference,
"[d]espite
that
the language
the two clauses
v. Ten
protect
are meant
to
(People
the same interest.”
nant
(1976),
Tennant,
65
Ill. 2d
In
this court
cited, approvingly,
Wigmore’s
to Dean
discourse on the
protections provided by
various
the confrontation clause.
The court noted Wigmore’s observation that
the advan
tage
by
personal appearance
obtained
of the witness
at
only secondary
trial
is
to
purpose
the more essential
Tennant,
of
cross-examination.
"central concern of the Confrontation to Clause criminal reliability against ensure the a evidence by it subjecting rigorous testing defendant to in context an of adversary proceeding before the trier Craig, fact.” 497 U.S. Ill 2d at S. at L. Ed. 110 Ct. at 3163. law, upon majority’s I body reject
Based this clauses, as of the comparable distinction confrontation Craig, summary well U.S. as its dismissal inapplicable 111 L. 110 S. Ct. as Ed. 2d case. agree
I that we not majority would with the are Supreme bound United interpreta States Court’s provisions tion of Federal which are simi constitutional (See 367.) However, lar to our Ill. 2d at own. there must, least, be some basis for our substantive departure. not, heretofore, We have found the difference adequate in phrasing provide such a basis. recently,
Most v. Levin 157 Ill. 2d People argued the defendants for a interpretation broader jeopardy upon Illinois’ double clause based a differ ence in wording between the Illinois and Federal unanimously Constitutions. We rejected that argument, holding wording "the difference no offers substantial basis to support conclusion that Illinois’ clause broader provides protections than does its Federal (Levin, counterpart.” 157 Ill. 2d at on Relying 226, 245, v. Tisler we suggested *10 that, in Levin in addition to the defendants language, needed to demonstrate a more substantive basis that our jeopardy double was to be clause intended construed (Levin, 2d differently provision. than Federal 157 Ill. 160.) now, at consistently rejected Until court has this the majority’s approach to constitutional construction as inadequate. majority why offers no reason approach is now sufficient.
There can be no argument that face-to-face language only in our just constitution means that. The whether, constitution, relevant our question under the right to ma- a face-to-face encounter is absolute. The jority that it holds is. Given that both the and Illinois require Federal confrontation clauses a "face-to- face” provide protections, confrontation and identical I find highly persuasive Craig authority that the Illinois provision is not exception. without
372
The sixth amendment to confrontation has absolute; been held not to be exceptions always have (See (1970), recognized. been v. Fiddler 181, 186, (1965), citing Pointer v. Texas 380 U.S. 1068.) 404-05, 923, 927, L. Ed. 2d 85 S. Ct. As a matter, practical reading a literal of the confrontation " virtually every hearsay 'abrogate clause would ” exception.’ 497 U.S. at Ill L. Ed. 2d (Craig, (1980), 3165, quoting S. Ct. at Ohio v. Roberts 56, 63, 597, 605-06, 65 L. Ed. 2d 100 S. Ct. 448 U.S. respect The same observation can be made with fully I provision. notwithstanding, the Illinois That that the denial of the to a face-to-face recognize any significant encounter or diminution calls into (See question integrity fact-finding process. (1989).) However, I firmly C.J.S. Criminal Law 1115 § case, may "bow appropriate believe that an accommodate in the criminal trial legitimate interests added.) (Emphasis Mississippi Chambers v. process.” 284, 295, 297, 309, 410 U.S. 35 L. Ed. 2d 93 S. Ct. 1038, 1046. Pennsyl significant majority
It is cites to a case, Supreme Ludwig vania Court Commonwealth 527 Pa. 594 A.2d which declined to (158 Ill. 2d at reasoning Craig. follow Certainly, regard jurisprudence we of our sister In I jurisdictions persuasive authority. regard, as (Mo. 1991), would offer State v. Schaal 806 S.W.2d supports which a conclusion consistent with In Craig. Schaal, Supreme the Missouri Court determined statute, permitted whether a State which the introduc videotaped tion of an out-of-court statement child victim, of the Federal sexual abuse was violative *11 argued The provisions. State confrontation defendant the the victim at inability that the to cross-examine his State videotape the violated making time the of 373 against witnesses guarantees and Federal to confront require- Notwithstanding him. the State’s constitutional encounter, that of a face-to-face the court held ment the be requires where the statute that child witness trial, oath, testify subject available to at and under be the to fact finder’s of demeanor and the observation jurors judge are able to videotaped, the recorded testimony themselves, for the defendant’s to confront is not abridged. witnesses
Though is factually distinguishable Schaal the from case, present the relevant is the one analogous issue in Craig both and now before court. case pre- Each a question sents regarding the propriety depriving defendant of his constitutional to a face-to-face encounter with a witness. Craig permit Both and Schaal a deprivation such where legitimate policy consider- ations and adequate safeguards reliability for the of evi- Thus, dence are present. strength the is Ludwig by the counterbalanced existence of Schaal.
As stated previously, the to confrontation reliability evidence, thereby enhances the preserving goal the truthseeking majority of trial. does not suggest reliability that the is less of evidence rendered Indeed, trustworthy under Child Shield Act.
child’s with a suspected face-to-face confrontation abuser "may possibil- so prevent overwhelm child as to ity of testimony, thereby undermining effective truthfinding function of the itself.” See Coy, trial U.S. at L. Ed. 2d at 108 S. Ct. C.J.).
(Blackmun, J., dissenting, joined by Rehnquist, Moreover, provides the Act safe- expressly various guards reliability intended insure evi- of that dence. Specifically, testimony the Act requires during be taken proceeding permitted
be persons to communicate in the room with with the Additionally, judge child. because
permitted child, to be in the same the room with the deprived court is not to observe the opportunity (See testifying. child’s demeanor while Ill. Rev. Stat. (b)(3).) 1(a)(1), (b)(1), (b)(2), pars. 106B — altered, Though process eliciting testimony the of not a such alteration does rise to the level of constitu tional The defendant is not denied the deprivation. protection right substance of the constitutional —the cross-examine the witness. it, that majority suggest,
Neither does the
nor could
those
prosecution
the State’s interest
the successful
persons
sexually
society’s youth
who
is not a le
abuse
a
ma
gitimate
Craig,
significant
one. As noted
jority
protect
of States have enacted statutes
child
giving testimony
witnesses
from the trauma of
in child
widespread
abuse cases attests
to the
belief
in the
importance
public policy.
such
See
497 U.S.
Craig,
Ill L. Ed. 2d at
Accordingly, Craig provides persuasive authority right to a face-to-face encounter is not absolute and must bow to the State’s in the compelling interest prosecution successful of child sexual Dean abusers. Wigmore considered it clear that of confronta- tion is provided purpose gazing upon "not for the idle witness, him,” being gazed upon by or of but rather (5 to permit opportunity for cross-examination. J. (Chadbourn 1974).) Wigmore rev. ed. Under § Act, is not denied his to cross- and, further, is not truthseeking goal examination reasons, I compromised in the For these would process. Shield Act as not violative uphold the Child defendant's confrontation under the Illinois Con- stitution. joins
JUSTICE MILLER in this dissent.
(No. 75212. *13 MANUTCHEHR al., SOHAEY et Appellees, v. MARK
X. al., VAN CURA et Appellants.
Opinion February filed