THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JEROME HOLLOWAY, Appellee.
No. 80088
Supreme Court of Illinois
June 19, 1997
Michael J. Pelletier, Deputy Defender, and Debra R. Salinger and Barbara C. Kamm, Assistant Appellate Defenders, of the Office of the State Appellate Defender, of Chicago, for appellee.
Following a bench trial in the circuit court of Cook County, defendant, Jerome Holloway, was convicted of criminal sexual assault (
Defendant was charged by indictment with having committed two counts of aggravated criminal sexual assault against his daughter, C.H., when she was 11 years old. Prior to trial, defendant objected to the admission of hearsay statements made by C.H. to her cousin, Erin Dalzell, when C.H. was 13 years old. The court ruled the hearsay statements admissible under section 115-10 of the Code of Criminal Procedure of 1963 (
The evidence presented consisted of the testimony of C.H., Erin, and Dr. Sharon Ahart. Based on this evidence, the trial court found defendant guilty of two counts of aggravated criminal sexual assault and sentenced defendant to two concurrent six-year terms. The court subsequently vacated its original judgments and entered a finding of guilty of two counts of criminal
The appellate court reversed the convictions and remanded the cause for a new trial. 275 Ill. App. 3d 736. The appellate court found that Erin‘s testimony concerning what she had been told by C.H. should not have been admitted under section 115-10(a)(2) of the Code of Criminal Procedure because C.H. was over the age of 12 when she told Erin of the alleged assault. 275 Ill. App. 3d at 737.
“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13 *** the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child 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 act perpetrated upon a child.”
Ill. Rev. Stat. 1991, ch. 38, pars. 115-10(a)(1) ,(a)(2) .
The appellate court found the statute to be ambiguous. 275 Ill. App. 3d at 742-43. The court noted that the legislature enacted
Defendant traveled to Rosemont, Illinois, in November 1987 to visit his former wife and their three children. At trial, defendant‘s oldest daughter, C.H., testified that she came home from school on a Thursday around 3 or 3:30 in the afternoon and observed defendant sitting on a couch watching television. C.H. had not seen defendant in over a year. Although C.H.‘s younger twin sisters were in the apartment complex, C.H. testified that they were not in the unit at that time.
C.H. testified that she sat on the couch next to defendant. According to C.H., defendant began to touch her thighs and buttocks in an uncomfortable manner. C.H. moved to the floor. Defendant then made derogatory comments about her mother and called C.H. “a bad girl,” telling her that she would pay for what she had done. C.H. stated that defendant then slapped her twice.
C.H. testified that defendant tied her hands above her head and stuck an object into her mouth. Defendant next pulled down his pants. C.H. observed that defendant had a birthmark on his buttocks. C.H. stated that defendant subsequently assaulted her both vaginally and orally. When the telephone in the apartment began to ring, defendant stopped and untied C.H. Defendant allegedly threatened that he would hurt her even more and would kill her sisters and mother if she ever told anyone what had happened. C.H. indicated that the phone rang for anywhere between 2 and 10 minutes. Defendant told her to answer the phone. C.H. could not recall who was on the telephone. C.H. stated that defendant then watched her shower, making sure that she washed her entire body. She claimed that she did not see her father during the rest of his visit.
In August 1990, C.H., then almost 14 years old, hosted a sleep-over party with her cousins Erin and Lindsey at her house. C.H. testified that she was not very involved with her cousins at the sleep-over. Upon
Fifteen-year-old Erin testified that in August 1990, she stayed overnight at C.H.‘s house. She stated that C.H. appeared to be “dazing off” and was very quiet. Erin stated that C.H. avoided the issue when asked what was wrong. Erin testified that C.H. eventually said that she was having nightmares about her father, and that her father had touched her. Erin stated that she then told C.H. to tell her mother. On cross-examination, Erin testified that she was very close to C.H. between 1987 and 1990, and that C.H. had never before told Erin of the incident nor, to her knowledge, had C.H. awakened screaming during this time.
Dr. Sharon Ahart, a board eligible pediatrician, testified that on August 16, 1990, C.H. told her that defendant penetrated her both vaginally and orally. According to Dr. Ahart, C.H. denied that anyone else touched her in her vaginal area. Dr. Ahart stated that although she did not use the term “penetration” in her medical report, she had found evidence of trauma to C.H.‘s vagina that had been caused by sexual penetration. This finding was based on C.H.‘s medical history, Dr. Ahart‘s own physical examinations, and C.H.‘s statements to her that she had been abused. Dr. Ahart could not determine the object which had penetrated C.H. solely from her physical examination.
Defendant presented the testimony of Lieutenant Lee Mayer of the Rosemont police department. Mayer stated that he interviewed C.H. on August 17, 1990, after she had complained to her parents. Mayer testified
Defendant testified next. He stated that he came to Illinois in November 1987 to pursue a reconciliation with his former wife and to see his children. He testified that he arrived in Chicago around 7 or 7:30 p.m. on Thursday, November 15, and that his former wife and their three children met him at the airport. Defendant stated that, because of the time of his arrival, it was impossible for him to have been at the apartment at 3 or 3:30 on that afternoon, which is the time C.H. said the incident occurred. Further, defendant stated that he went to the mall with C.H., his twin daughters, and his niece Lindsey on Friday evening. At the mall, the girls took a group picture at a coin-operated photo booth. Defendant asserted that this photo proved that C.H. saw defendant after the alleged incident. The photo was not dated and C.H. claimed that she did not remember when the photo was taken.
Defendant testified that, after he returned from the mall with his children, he and his ex-wife argued and defendant was asked to leave the house. Defendant returned to the house for about five hours on Sunday, November 18. After this, defendant spent a couple of days with some of his friends before returning to California. Defendant claimed that he was never alone with C.H. during his November visit. According to defendant, he did not return to Illinois until December 1990, after the charges had been filed against him.
As additional evidence, defendant stated that the birthmark C.H. claims to have seen during the assault was well known in the family because his grandfather
II. DISCUSSION
A. Outcry Admissibility When Declarant Over 12
In construing
The State believes that “such child” in sections (a)(1) and (a)(2) refers to a child who was under the age of 13 when a sexual act was perpetrated regardless of the age of the child at the time the child made an outcry. Defendant maintains that the phrase “such child” in sections (a)(1) and (a)(2) refers only to the phrase “under the age of 13” as used in section (a) and that the child, therefore, must have been under the age of 13 at the time of the outcry for the statements to be admissible under the hearsay exception.
While the State‘s interpretation has merit, the defendant‘s construction of the statute also is reasonable. When a statute can be reasonably interpreted in two different ways, it is ambiguous. People v. Jameson, 162 Ill. 2d 282, 288 (1994). Once a statute is found to be ambiguous, it is appropriate to look beyond its plain language to ascertain legislative intent. People v. Ross, 168 Ill. 2d 347, 352 (1995).
During discussion of the bill, Representative Jaffe asserted that the bill “deals with corroboration that a child has been sexually molested and testimony that *** [the child] complained of such an incident.” 82d Ill. Gen. Assem., House Proceedings, March 25, 1982, at 87 (statements of Representative Jaffe). Additionally, in speaking to an amendment to lower the age from children under the age of 18, as originally introduced, to children under the age of 13, as finally passed, Representative Stearney questioned whether the age of 17 was “rather high” and whether there was any need for corroboration of a 17-year-old. 82d Ill. Gen. Assem., House Proceedings, March 25, 1982, at 88 (statements of Representative Stearney).
It appears that the legislature, in providing for the admission of evidence of outcry statements as exceptions to the hearsay rule in certain cases, was concerned with the ability of the victim to understand and articulate what happened during the incident and the reluctance many victims have relating the details of the incident at trial. Evidence of an outcry statement made to another by a child under the age of 13 would corroborate the testimony of a child who, by reason of age, may be reluctant or unable to clearly express the details of the incident. The State‘s interpretation would measure
In 1993 and 1994, the legislature enacted amendments to section 115-10(a). The 1993 amendment increases the list of crimes perpetrated against young children in which the hearsay exception is allowed. The 1994 amendment expands coverage to certain mentally retarded persons—showing the legislature‘s desire to rectify difficulties when the complainant has an impaired ability to testify. See
We note also that our holding today is consistent with the prior opinions of our appellate court. People v. E.Z., 262 Ill. App. 3d 29, 34 (1994) (child must be under the age of 13 at the time the statement is made in order to hold hearsay statements admissible under
Following the decisions in E.Z. and Bridgewater, the legislature attempted to pass an amendment that directly addressed the age at which the outcry must occur in order to be admissible as a hearsay exception. In
The bill also provided that the hearsay statement would not be inadmissible because the child was 15 years of age or older when the statement was made. 89th Ill. Gen. Assem., House Bill 160, 1995 Sess. The Senate amended the bill to make the statement admissible only if the outcry was made within one year of the incident. 89th Ill. Gen. Assem., House Bill 160, 1995 Sess. The legislature could not agree on the amendment; therefore, the bill did not become law. 89th Ill. Gen. Assem., House Bill 160, 1995 Sess.
The legislature‘s attempt to amend
Based on the foregoing, we agree with the interpretation of the language of the present statute reached by the appellate court in Bridgewater and E.Z. If there is to be a change in the age in which an outcry statement is to be made in order to be admissible under
We further note that our holding is consistent with the language of statutes adopted in many other states. See, e.g.,
For the reasons mentioned, we believe that the legislature intended that for an outcry statement to be admissible as a hearsay exception under
B. Guilt Beyond a Reasonable Doubt
Defendant contends that, without the hearsay testimony concerning the statements made by C.H., the evidence was insufficient to prove him guilty beyond a reasonable doubt. During the trial, the court found C.H.‘s testimony credible and believable, Dr. Ahart testified to evidence of trauma to C.H.‘s vagina, and Lieutenant Mayer corroborated the major aspects of C.H.‘s testimony. We find that this evidence, if believed by the trier of fact, was sufficient to support a finding of guilt beyond a reasonable doubt. Following People v. Taylor, 76 Ill. 2d 289, 309-10 (1979), we do not suggest any implication as to defendant‘s guilt or innocence that would be binding on retrial. Our finding is intended only to protect defendant from being subjected to double jeopardy.
III. CONCLUSION
For the foregoing reasons, we find that hearsay statements made by a declarant over the age of 12 concerning sexual abuse that occurred when the declarant was
Affirmed.
CHIEF JUSTICE FREEMAN, dissenting:
I strongly disagree with the majority‘s overly restrictive interpretation of
Section 115-10(a) states that “[i]n a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Section 12-13 through 12-16 of the Criminal Code of 1961,” certain testimonial evidence shall be admitted as an exception to the hearsay rule.
When one reads the plain language of sections 115-10(a)(1) and (a)(2) then, in their entirety, giving the term “such child” its ordinary meaning, it becomes clear that the term was intended merely as a short-hand reference to the victimized individual. The majority posits, however, that it is equally reasonable for the expressly stated 13-year limitation concerning the victim‘s age found in subsection (a) to apply, implicitly, at every juncture where the term “such child” is employed within
In my view, transposing the crime victim‘s age limitation to every instance where “such child” appears in
Legislative debate surrounding the enactment of
The majority, nonetheless, seizes upon a single comment by Representative Stearney as an indication that the intended significance of allowing such hearsay is for the limited purpose of corroborating the trial testimony of young child victims. See 177 Ill. 2d at 9 (“Representative Stearney questioned whether the age of 17 was ‘rather high’ and whether there was any need for corroboration of a 17-year-old“). There is absolutely no indication, however, that Representative Stearney‘s
That Representative Stearney might question the need for corroboration under the statute in the case of an individual victimized at age 17 comports with the hearsay‘s significance as corroborative evidence of a sexual offense perpetrated sometime previously on a young child. Very young children are often too frightened to report or testify about such offenses, which are oftentimes committed by relatives or friends. Cf. People v. Soler, 228 Ill. App. 3d 183, 199 (1992); People v. Foley, 206 Ill. App. 3d 709, 716 (1990). Society now recognizes that sexually abused children are often secretive about the abuse they suffer, and that they may be severely conflicted concerning the abuse and delay reporting it for considerable periods of time. Cf. People v. Dempsey, 242 Ill. App. 3d 568, 579 (1993); People v. Pollard, 225 Ill. App. 3d 970, 976 (1992); People v. Wasson, 211 Ill. App. 3d 264, 270 (1991). A young child is often likely not to disclose such abuse until years after it occurs or begins, thereby causing questions to arise regarding the veracity of the child. Admitting an outcry statement by such a child, provided the prosecution proves that it is reliable and trustworthy, in the process envisioned by section 115-10(b) allows the prosecution an opportunity
Representative Stearney could be expected to recognize that the same difficulties of proof would not more likely attend the sexual abuse of an individual aged 17 years. A 17-year-old individual, as opposed to a child under 13 years old, is more likely to immediately report commission of such acts to adults and authorities, thereby generating the likelihood of other forms of corroborative evidence (witnesses, physical evidence) besides hearsay. Thus, the admissibility of hearsay statements in prosecutions of sexual acts committed against older teens is a less critical matter.
Contrary to the majority, I do not read the legislative commentary cited as reflecting necessarily any underlying concern with the ability of the victim to adequately testify at trial. 177 Ill. 2d at 9. In my view, also, section 115-10(a)(2) clearly manifests the legislature‘s intent that evidence of a victim‘s outcry serve a purpose beyond corroboration of a possibly inarticulate and reluctant young child‘s trial testimony. Such intent is manifest because subsection (b) allows admission of testimony concerning a victim‘s outcry regardless of whether she provides it herself. The majority faults the State‘s interpretation for failing to measure the statute‘s applicability with regard to the age of the child at the time of a subsequent outcry. Yet, the majority measures the statute‘s applicability with regard to the age of the child at the time of trial though the child need not testify, and then fails to explain any significance for the arbitrary age requirement of “under 13 years” it imposes on the child at the time of her outcry.
I disagree with the majority‘s view that the importance of allowing hearsay testimony of an outcry or com-
Furthermore, rather than facilitate prosecutions, the majority‘s restrictive interpretation of
In sum, in cases of children and teens sexually victimized when under 13 years of age, the fact that they were not likely to have adequately and immediately reported such offenses is an important concern which I believe the legislature considered in providing, statutorily, for admission of these types of outcry statements. The statute was designed to admit this evidence, regardless of either the victim‘s age at the time of trial or the fact of her specific chronological age at the time of her outcry, provided that the court finds in camera that the time, content, and circumstances of her outcry provide sufficient safeguards of reliability, and she either testifies then or there is other corroborative evidence of the criminal act (see
Any issue regarding the trustworthiness of the hearsay statements made by a child victim after she turns 13 years old is addressed by the proviso that
In conclusion, I do not agree with the majority‘s apparent view that the legislature intended for this hearsay exception to be limited to cases where third persons testify to the victim‘s outcry statements made when she was under 13 years of age, or where she happens to be under 13 years of age at the time that she testifies to them. Given the prevailing environment concerning these crimes against children, and what we as a society have learned about these forms of childhood victimization, the only reasonable interpretation of the statute is that it means what it says and no more. This court should not turn a blind eye to the nature of childhood sexual abuse and prevailing public policies concerning such offenses.