*1 JAMES ILLINOIS, Plaintiff-Appellee, v. OF THE STATE PEOPLE OF THE LEARN, Defendant-Appellant. E. 2 — 04—1169 District No.
Second 4, 2009. Opinion filed December *2 HUDSON, J., dissenting. Gutterman, M. Softer and B. of Katten Muchin Rosenman
Gil Allen both Chicago, appellant. of LLP (Martin Waller, Attorney, Waukegan
Michael J. of E Moltz and State’s Burns, Office, Mary Attorneys Beth Appellate both of State’s of Prosecutor’s counsel), People. for the delivered the opinion
JUSTICE McLAREN
court:
Defendant,
Learn,
trial of
James E.
was convicted after a bench
(720
aggravated
one count of
criminal
sexual abuse
ILCS 5/12—
(West 2002))
16(c)(l)(i)
a term of probation
sentenced to
and was
a new trial
motion for
periodic imprisonment. Defendant’s
and/or
This court reversed
guilt was denied.
finding
of
reconsider
Learn,
v.
People
new trial. See
the cause for a
conviction and remanded
(2007).
peti
denied the State’s
supreme
Our
court
3d 701
author
but,
supervisory
in the
of its
appeal
tion
exercise
for leave
case
instructed this court
reconsider
ity, vacated our order and
Learn,
O.,
See
In re Rolandis
2d 13
light of
of
denial
supervisory order on
(nonprecedential
gravated criminal sexual abuse. niece, four-year-old K.O. Pursuant to section 115—10 defendant’s (Code) (725 of Criminal Procedure of 1963 ILCS Code 5/115—10 (West 2000)), the at trial out-of-court statements State moved admit father, C.O., officers. filed police K.O. made to her and two Defendant introducing any from these out-of- prevent motion to the State trial, the Code arguing court statements at that section 115—10 of was unconstitutional. court, hearings held Judge Christopher presiding,
The trial Starck and to admissibility to determine the statements made to C.O. *3 Montemayor Highland Ginger Ray Detective Stokes and Officer changed police department. diaper Park C.O. that he testified son, C.O., Jr., his 2003. p.m. infant at about 10:30 on December usually helped shaking on present. by powder K.O. was She talcum “parts”; powder the infant’s then in. On this occa- C.O. would rub sion, C.O., fingers penis K.O. reached out and touched Jr.’s with two actions, on hand. were right her C.O. demonstrated K.O.’s which “holding right for the his hand with two [sic] described record as on again, fingers, wiggling he’s C.O. told her to do that When —.” “ ” meant, said, ‘Why Jimmy does C.O. asked K.O. not? it.’ what *** hand [Jimmy] and told him that would touch her K.O. “sometimes “cocita,” parts, Jimmy’s parts.” it on his K.O. used the word put Jimmy’s parts. meaning thing,” talking private “little when about way, K.O. “in I could obtain more informa- spoke tranquil C.O. so that, she him: C.O. K.O. how told tion.” When asked “ time, hand, pants, has a hole my and he with ‘[0]ne he took *** pants. my puts hand he it the hole his He takes inside my legs.’ says, ‘And hand pants he has in his one of the She ” inside, goes part.’ me his and he makes touch Jimmy; demonstrated K.O. demonstrated how she touched C.O. court, “rubbing thigh that in it was described in the record as his right his hand.” C.O. asked K.O. when it happened, but, testified, he “she doesn’t have aspect time, week, like what’s a day, what’s a ” a time limit.” She told him that happened it ‘the other day,’ but he did not know what him day she was talking about. K.O. told of two occasions, clearly but he could recount one occurrence. K.O. told him: “ ‘I was in the basement from puts [sic]the house. And he me on
top of the bed. And we cover ourselves with a something. blanket or my He puts touches hand. And he it pants.’ underneath his She then part,” touched “his describing it as “something soft.” Ac- cording C.O., she repeated “two, that story three, four times that night.” C.O. stopped asking questions after his mother entered the room and heard discussed; what was being however, his mother took up K.O., questioning repeated K.O. her story to both her mother grandmother that night.
K.O., and the rest of the family, called defendant “Jimmy.” When C.O. asked why she did say before, anything she responded that she was scared. Defendant lived in the same house as grand- K.O.’s mother, babysat who K.O. every day almost while C.O. and his wife worked. 26, 2003, Until December K.O. never anything mentioned making defendant private touch his parts.
The trial court ruled: time,
“[S]hould the testify, content, child and circumstances of testimony this sufficiently sufficient—would be reliable to allow jury pursuant again, to Section 115— upon conditional the fact that the child does in fact in the case.”
At separate hearing, Detective Stokes testified that she interviewed police K.O. at the department on December 2003. interview was English, conducted in but Officer Montemayor was present in case a Spanish translator was needed. The interview was videotaped both and audiotaped. Stokes testified that she had been misinformed that grandfather, uncle, K.O.’s not her perpetra- was the tor. She grandfather asked K.O. if her had ever inap- touched her propriately or if anybody grabbed her hand and made her touch area, him in private his and K.O. said no. K.O. told Stokes that cousin Kevin had shown her “pee-pee”; anyone his when asked if else had shown her his pee-pee, replied no, only Kevin. Stokes showed *4 K.O. anatomical diagrams of both male and female forms and asked K.O. if she could identify parts different body. the WTien Stokes penis, drew a line to the say anything. K.O. did not Montemayor Stokes and again interviewed K.O. on December 2003. present room, KO.’s mother was also in the seated behind K.O. Montemayor translat- Spanish, interview was conducted This No speaking Spanish. more them comfortable ing, as K.O. told she According audio, of this interview. or was made recording, either video occasions[,] Jimmy her Uncle that, Stokes, “on several K.O. stated Once, Jimmy placed thingy.” it on placed had her hand his taken and “thingy.” K.O. related her hand on his placed a over her and blanket that he in front and long pants with a hole that would wear often how pants. his When Stokes asked place would her hand inside over every that “it was time she went happened, K.O. said “on baby-sit” happen that it would Jimmy’s her not to and Uncle but K.O. testified that specifically his in the basement.” Stokes also bed K.O. an Jimmy’s “thingy.” again showed penis referred to Stokes hand and her to show her diagram anatomical of a male asked where called; penis and pointed and it was K.O. placed been what why the first interview with thingy.” said “that’s the When asked replied, police depart- “It was videotaped, K.O. had been Stokes like old in a trial goal year testify ment and our not to have five Center, Advocacy Child The second interview was held at the this.” equipment. which did not have video during
Montemayor anything he not translate testified that He K.O. had the interview on December 26. no indication that saw English. During problem understanding communicating interview, English questions he December 30 translated Stokes’ occasion, Jimmy Spanish responses. K.O.’s K.O. said that on one grabbed “thingy”; according hand and made her touch his “tosito,” Spanish K.O. Montemayor, used the word word The trial “thingy.” court ruled: time, testify
“[I]f the victim does that the content court believes sufficient, of this are show sufficient circumstances herself reliability subject areas of and if she is to cross examination in ***.” the court would allow statements to trial, the Judge presided John then the case. Before Phillips over hearing competency court held a to determine K.O.’s as witness. an interpreter. with the aid of KO.’s examination was conducted brother, parents age, was able to about her the names of her lived understood the difference where she and went school. She and that had to tell truth in court. between the truth and a lie when Claus birthday K.O. did not know was or Santa when following took brought presents. During questioning, the court’s place: *** today? You you “THE us what’s COURT: But will tell true
will tell us truth?
THE know. WITNESS: I don’t *5 Okay. true,
THE If I you you COURT: ask to tell me what’s will tell the truth and not a lie?
THE I don’t WITNESS: know. Okay.
THE you COURT: Tell me if don’t understand me. THE Okay. INTERPRETER:
THE you COURT: Have problem any had a with I words have you? said to
THE No. WITNESS:
^ ^ ^ THE you your Would for you COURT: do this me: Would raise hand me[?] hand.) THE (Raising WITNESS: left this,
THE you COURT:The other would repeat hand. And would you say, I promise I will tell the truth.
THE I tell promise INTERPRETER: to the truth.” court then The found K.O. to be to competent testify, and the trial began. through
K.O. testified a Spanish/English interpreter. K.O. said she grandmother’s school, that went to her after house but did not she anymore. grandmother there Her and Aunt Minnie there. lived married, asked if if When she knew Minnie she was answered “No.” anyone She also answered when “No” asked if else lived in the house if she and had uncles. She did not remember the when incident helped change diaper. feeling “[a] she her father She brother’s was testifying. request, little embarrassed” about At the State’s the court that, took a then short break. After K.O. in her resuming, testified house, grandmother’s grandmother slept upstairs, kitchen was downstairs, slept and there a basement. did not was She know who calm the basement. The tried to and that State K.O. reminded her she promise judge. made K.O. then that she seen her testified Aunt Alberteeta in the basement and that Alberteeta married to was Jimmy, pointed whom she then out as defendant. She stated that Jimmy was not her but uncle that he was married to Aunt Alberteeta. Jimmy, She liked Alberteeta did not like could not although but she why say police she did not like him. She but did went to station any questions. not answer K.O. said that she had talked to the as- Attorney the She she was day sistant State’s before. stated that and that wanted her mother near her. The court took nervous she put began cry. and When another recess when K.O. her head down to better, resumed, trial she feeling the State asked K.O. if was know, she she did not it stated that it had no responded that questions. more testify, to produced
The court then that the State had ruled although it noted: again[,] still—I just she was young lady took the stand
“[W]hen -every time she say sobbing, it but that was wouldn’t was— began cry again somebody question, limited she asked her a light by crying not a child.” it was required the State that it aware no law court stated ruled as follows:
“go the event” with witness through here. she is Well, unavailable because “THE COURT: testify at did key proceedings. She is did she So competent. you And if wish I found her to be proceedings. I’m not examine, examine and you certainly can cross cross then concerning respect scope any objections going to sustain Attorney] [the Mr. Newsome assistant State’s the event because case, has [it] in this so places people in fact talk about *6 any going I am to over- opened anyway. to of that So door findings didn’t hear Judge respect his because I rule Starck with to prong find of particular statements. But I would that those if having testify proceedings at the has fulfilled. So the child been examine, you certainly bring do you to can that. So wish cross child in here.” Jimmy,” had “Tio establishing
Other than the fact that K.O. a of five questions defense counsel asked a total defendant. her, responded Jimmy “I if don’t when asked if was mean to know” her, that like if her to thought Jimmy Jimmy did not and told house, upstairs grandmother’s when she went into the basement of her Jimmy had ever where lived. K.O. answered when asked if she “No” her dad parents told her lie about or if she ever told him. anything about C.O., Stokes, and testimony
The State then of presented they had Montemayor, similarly who all testified to the statements previously made to the court. admitting
Defendant first that court erred in contends the trial as trial. We K.O.’s out-of-court statements substantive evidence at agree. Code, hearsay allows for certain
Section 115—10 of which exceptions, provides part: “(a) prosecution physical perpetrated In a or sexual act for *** following
upon against age or a child under the of hearsay rule: exception shall as an evidence be admitted (1) of testimony by the victim of an out court statement an act complained made such the victim that he or she of another; (2) by testimony an statement made of out of court or describing any victim such an or matter complaint of act an an offense pertaining detail act which is element of subject prosecution which is the of a physical a sexual or against act the victim. (b) only Such shall be admitted if: (1) hearing The court finds in a pres- conducted outside the jury content, time, ence of the that the of circumstances provide safeguards reliability; statement sufficient of *** (2) The child either: (A)testifies at the proceeding; or (B) is unavailable as a witness and there is corrobora- subject tive ment!;.]” evidence act which the the state- (West2002). 725 ILCS 5/115—10 argues right him, Defendant that his to confront against witnesses guaranteed by Constitutions, both the United States and the Illinois admission, violated by pursuant the trial court’s 115— to section 10, of Const., VI; K.O.’s out-of-court U.S. statements. See amend. I, defendant, §8. Const. art. According to the court admitted (1) testimonial hearsay without either: the declarant at trial testifying being subject cross-examination; or being the declarant unavailable testify having and defendant a prior opportunity to cross-examine. Cases be decided should on nonconstitutional grounds possible, whenever and constitutional issues should be decided (2006). E.H., a last resort. In re 224 Ill. 2d A rul trial court’s on ings evidentiary will matters not be absent a reversed clear abuse discretion; however, evidentiary rulings involving questions statu tory interpretation questions other of law are reviewed de novo. In T.T., re argues pursu
Defendant first K.O. did at trial 10(b)(2)(A). ant to section did call State K.O. as a witness. 115— *7 However, our review K.O.’s that “testimony” of leads us to conclude did not testify pursuant she to section 115—10. It took of pages 10 even questioning person Jimmy before K.O. admitted that a named existed; the gave information that K.O. about that he was was husband of KO.’s Aunt and that like Alberteeta K.O. did not Jimmy, although she did not After a why. pages know few more K.O. questions, during going which was asked about to the sta police questions there, put tion whether she had been asked some K.O. recess, began cry. down head and to After a asked short State know, K.O. felt After responded whether better. K.O. that she did not State court questions. informed the that it had no more ruling We conclude that the trial court in erred testify, for A wit- purposes available did of section 115—10. child is if to unwilling ness considered unavailable the child is or unable fear, communicate in set- because of unable to the courtroom
899 expressing incapable is because she incompetent ting, or declared T., App. T. Ill. matter. 384 concerning as to be understood herself so the witness becomes no difference whether It makes 3d at 156. People See stand. takes the witness after she before or “unavailable” (1990). 567, Coleman, App. Ill. 3d 583 205 v. Court decision Appellate Fourth District to the
The State cites (2005), proposition for the 786, 3d 795 Sharp, App. 355 Ill. People v. for cross- present declarant was key question is whether “that the Sharp, In questions.”1 defense counsel’s and answered examination and with about “what she length” “at testified some the victim Sharp, sexually assaulted. day that she was it” on the she did whom However, her narrative stopped 953. App. Ill. 3d at 391 pushed a room and her into pulled the defendant describing how hap to describe what get to the victim floor; attempts multiple “ Sharp, response by witness.’ met with ‘No pened next were examina testified, still on direct The later 3d at 954. victim App. from the released her tion, after the defendant happened about what her on cross- put to questions then answered all room. The victim questions not ask examination, but defense counsel did Sharp, App. 391 Ill. 3d her in the room. the defendant did with what that, of the victim’s light even court concluded appellate at 954. testify on direct examination inability or “apparent unwillingness room,” ‘appeared’ the victim did to her in the about what defendant 3d 954. Sharp, for at trial.” cross-examination in court to presence mere cannot conclude that a witness’s We offense testifying about general questions answer without 115—10. to section qualify testimony pursuant is sufficient n.9, Ed. 2d 158 L. Washington, v. 541 U.S. Crawford n.9, (2004), Supreme States the United 124 S. Ct. 1369 n.9 of a constitu- purposes appearance, Court described a declarant’s “the declar- where analysis, clause as a situation tional confrontation his out-of-court state- explain” present ant is court defend added.) analysis is not a confrontation While our (Emphasis ment. appearance is definition analysis, Supreme Court’s clause equally applicable here. remanded for us, vacated and Sharp was also 1Like the case before (see 2d 649 Sharp, 231 Ill. light v. of Rolandis G.
reconsideration
ap
petition for leave
supervisory
on denial of
(nonprecedential
order
that “a different
reconsideration,
Sharp
concluded
court
peal)). After
People conviction.
affirmed the defendant’s
not warranted”
result
Sharp,
*8
Both the sixth amendment and the Illinois
grant
Constitution
an
accused the right “to be confronted
against
with the witnesses
him.”
Const.,
VI;
U.S.
1970,
I,
amend.
§8.
Const.
art.
The text of the
“
”
applies
confrontation clause
to
against
‘witnesses’
the accused—
those who
‘bear testimony.’ Crawford,
would not “sustain objections respect scope concerning the event because Mr. Newsome Attorney] [the assistant State’s did in fact talk places people However, this case.” K.O. did not testify at all charge about the barely this case and acknowledged the people places about which questioned. she was She did not “bear testimony” against defendant. She neither made accusations gave nor relevant and material testimony. The trial court’s statement implicitly admitted “testimony” that KO.’s incriminating was not material; had there been testimony, such the trial court would not have had to allow an expanded scope of cross-examination to into clearly areas not brought up during the questioning. State’s However, even “generous” such a expansion scope of cross- is, best, examination Trojan horse. In get order to a declarant to explain” “defend or testimony given examination, on direct defendant would be placed position the untenable trying of both elicit about the event attempting challenge very and refute the testimony he was forced to elicit. The dissent notes that defendant did cross-examine K.O. and that “KO.’s answers to elicit.” seeking counsel was been what may not have testimony, there accusatory However, the absence 3d at 909. would counsel that defense few, any, if answers very seem to be would *9 no reason to has issue, in a defendant are elicit. Until facts seek to hostile witness. into a sworn turn a sworn witness Garcia-Cordova, 392 People v. great part in on The dissent relies that K.O. was (2009), its conclusion support for for 3d 468 App. Ill. analysis in However, find that this court’s we and testified. available fail to address in this case argument and the State’s Garcia-Cordova The dissent the victim. in examination of the the lack of confrontation answered that the victim Garcia-Cordova questions all the details dealt question all but one to note that not but fails or could answer abuse. Garcia of sexual than the actual accusation issues other with only bit of testimony, the of the victim’s Cordova’s recitation anything happening did not recall charges was that “she related to the Garcia-Cordova, App. or on the couch.” in her bedroom and identification information general background than 473. Other the questions involved defendant, majority of the State’s the the vast investigator pictures protection interview with a child victim’s Garcia-Cordova, interview. See during that she drew the did not cross-examine victim. 3d at 472-73. Defense counsel counsel to us, nothing for defense in the case before there was As and accuse cross-examine; confront the defendant the victim not The court’s anything. him of No fact was at issue. Garcia-Cordova the incidents of regarding lack of recall observation that the victim’s “ ‘friendly’ cross- considered abuse and other facts could be 484) helpful (Garcia-Cordova, 3d at examination” single inability to answer resolving this case. The witness’s only to accuse the defendant —led question abuse—to testify about what the in other witnesses to ability bring the State’s the defendant was Again, them at some other time. victim said to him. challenge against an accusation None given never the chance to inured to the benefit of The victim’s lack of answers was made. State, not to the benefit of the defendant. clause was at which the confrontation principal problem against evidence of ex examinations as parte
directed was
use
50,
Ed. 2d at
U.S. at
158 L.
Crawford,
in criminal cases.
accused
one cannot
192,
simple:
behind this is
logic
Cobham,
court,
would recant if forced
testify
proclaimed,
‘[t]he
proof of the Common
Law is
jury:
here,
witness and
let Cobham be
let him speak
my
it. Call
accuser before my
Crawford,
face....’
U.S. at
Whether the out-of-court statements of an unavailable witness
may be admitted at trial depends,
part,
on whether the statements
are testimonial
in nature. Testimonial
subject
statements are
confrontation clause of the sixth amendment. See Davis v. Washington,
*10
813,
547 U.S.
224,
165 L. Ed. 2d
(2006);
G.,
Defendant also that KO.’s statements to C.O. were similarly testimonial and admitted error. When statement is the product of law enforcement interrogation, by police either
903
enforcement,
focus is
proper
law
acting on behalf of
by someone
be whether
declarant,
inquiry
and the
should
on the intent
conclude
person lead a reasonable
objective circumstances would
G.,
Rolandis
the defendant.
against
could be used
that her statement
is a
the declarant
31;
Here, there is no such “correlation” or
K.O.
corroboration.
reach out on her
however,
own and touch her
penis;
brother’s
this fact
little if any weight
credibility
adds
to her statement that defendant
***
“would touch her hand
and put
parts.”
it on his
K.O.’s descrip
of the alleged
tions
incidents were rather fact-specific; K.O. described
taking
defendant
putting
hand and
it “inside the hole that he has
pants by
his
one
legs.”
The other
being
incident involved
and,
covered
again, having
with blanket
her hand placed underneath
addition,
pants.
defendant’s
manners
which K.O. touched
her brother’s penis
allegedly
touched
penis
defendant’s
were dif
court;
ferent. C.O. demonstrated
wig
both to the
the first involved
gling
fingers
two
while the
rubbing
thigh
second involved
his
with his
G.,
hand. Unlike Jacqueline’s observations in Rolandis
C.O.’sobserva
type
tions did not correlate to the
abuse described
Furthermore, we disagree with the dissent’s assertion that KO.’s
touching
penis
necessarily
of her brother’s
demonstration of
“knowledge of
Nothing
sexual matters.” See 396 Ill.
3d at 910.
changing
necessarily
context of
her brother’s
leads to the
diaper
conclusion that
penis.
K.O. even knew of the sexual function of the
Therefore,
because K.O. did not
and there was no corroborative
presented,
in admitting
evidence
the trial court erred
C.O.’s
regarding
out-of-court
KO.’s
statements.
*12
review. See
subject
are
to harmless-error
violations
Crawford
However,
the
evidence
G.,
Rolandis C.O., Stokes, Montemayor, testimony the of presented at trial was testimony cannot be held to be harm the admission of this improper Therefore, for a trial. As error. we must remand this cause new less need not address statutory grounds, have decided this issue on we we arguments. defendant’s constitutional allowing
Defendant next contends that the trial court erred testify made at the second regarding Stokes to K.O.’s statements interview, actually hearsay. double Ac testimony because Stokes’ was defendant, cording speak Spanish, language Stokes did not result, which the second interview with K.O. was conducted. As a said; as to what testify Stokes did not as to what K.O. she testified argues that this issue is Montemayor told her K.O. said. State for a new forfeited because defendant did not raise it his motion (1988). Enoch, However, in the trial. v. 122 Ill. 2d People See issue, judicial economy, prob address this as it will interests of we will ably a retrial. during arise 10(a)(2) ‘clearly testifying that the wit
“Section mandates 115— Petitt, personally.’ [Citation].” ness hear the child’s remark 245 Ill. heard remarks App. 3d Stokes no more K.O.’s personally Only questions personally. than K.O. heard Stokes’ Monte- mayor testify Contrary could as to what K.O. said. to the State’s asser tion, application of section “preclude conclusion does speak English.” 115—10 when the victim cannot The State must merely testimony actually heard the present person who If, remand, again seeks child’s remarks —the translator. on State statements, “plain to introduce it be error” K.O.’s out-of-court would “hearsay for the trial court to as to the on allow Stokes Petitt, hearsay” of K.O. said in the December 30 interview. See what App. 245 Ill. 3d at 142. finding
Defendant next contends that the trial court erred in content, time, a competent was witness and that provided safeguards circumstances of K.O.’s statements sufficient (West 2002)). (see 10(b)(1) of our reliability 725 ILCS Because 5/115 — contentions, and the fact that new disposition of defendant’s other remand, pretrial need to held before trial on we hearings would be need not address these issues at this time. sup
Defendant next contends that the evidence was insufficient appeal A on un port his conviction. conviction will not be overturned unsatisfactory that it creates improbable less the evidence is so Petitt, App. 245 Ill. guilt. reasonable doubt the defendant’s if, viewing Further, a conviction not be overturned 135-36. will light prosecution, any the evidence most favorable to the rational trier of fact could have found the essential elements Petitt, beyond crime reasonable doubt. 3d at 136. We trial, will consider all the evidence admitted at the evidence that even T.T., erroneously was admitted. 3d at 166.
Reviewing light all the evidence in the most favorable to the prosecution, prove conclude that the evidence sufficient to we overwhelming, guilt. especially defendant’s While the evidence was not occurred, regarding exactly allegedly when the offense of C.O. and Stokes was consistent as to the identification of defendant *13 details, perpetrator as the and also as to at least two that defendant allegedly placed penis through pants K.O.’s hand on his the hole in his placed put and that he her on his bed in the basement and a cover say over her. We cannot that no rational trier of fact could have found proven beyond the essential elements of the crime a reasonable doubt. Therefore, case, judgment while we reverse the trial court’s in this we also remand the cause for a new trial. reasons, County the circuit of Lake judgment
For these of court reversed, is and the cause is remanded for a new trial.
Reversed and remanded.
HUTCHINSON, J., concurs. HUDSON, dissenting:
JUSTICE
First, I
disagree
aspects
majority’s opinion.
I
several
with
section
appeared
meaning
believe that K.O.
at trial within the
both
(Code) (725
Procedure of 1963
ILCS
115—10 of the Code of Criminal
(West 2002))
Washington,
v.
541 U.S.
158
5/115—10
Crawford
(2004).
Second, I
that
L. Ed. 2d
The
holds that
cannot conclude
testifying
general questions without
presence
mere
in court to answer
testimony pursuant
qualify
to
about the
offense is sufficient
majority goes on to
Ill.
3d at 899. The
App.
to section 115—10.” 396
confrontation clause
proposition
for the
that
cite Crawford
an
explain”
at trial to defend or
requires
“present
a declarant to be
n.9,
158 L. Ed. 2d at
Crawford, 541 U.S. at
out-of-court statement.
Parenthetically,
disagree
I do not
n.9,
Initially, persuaded by majority’s attempt am not distinguish In Sharp, 953-54 case, crime, the victim testified to events before but crime, when the State asked her about the actual the record showed witness,’ response by ‘No indicated that which she refused respond. Sharp, 391 Ill. App. ques 3d at 954. The victim answered all put during cross-examination, tions to her defense counsel defense attempt question counsel made no the victim about the crime Sharp, that, itself. 3d at major 954. fact as the ity out, points the victim length” testified at “some about events that occurred before and after the assault alter does not the fact that she about the Sharp, assault itself. 391 App. 3d at 953- Moreover, 54. unlike the in Sharp, victim who refused to answer certain questions, K.O. at least responded that she did not know or could not recall certain facts. any event, I believe that the testimony give that K.O. did satisfy
sufficient to requirements of the confrontation clause and *14 section 115—10 in applicable following accordance with case The law. recent provide guidance cases sound resolving this issue. In v. Garcia-Cordova, App. (2009), victim, 392 Ill. 3d 472-73 the after testifying matters, to some preliminary made an in-court identification of the defendant stepfather, as her but denied that she anyone lived with besides her mother and sister. She denied remember ing going to a medical clinic telling someone a secret. She recalled meeting investigators two drawing pictures during meeting, but she stated that she did not recall the of the purpose meeting. She identified drawings, one of the including stating depicted that it hand, and the defendant’s but long she also stated ‘It was a time ago’ and say could not what the doing. defendant’s hand was Garcia Cordova, App. 392 Ill. 3d at pictures 472. She identified other she drew, stating while that she drawing did not recall others. She also testified that why any she did not know of the drawings. she drew She denied seeing charts, certain acknowledging seeing anatomical while others. She remembering anything occurring further denied in her bedroom Finally, or on the couch. she testified that she did not know body part bathing of the the bottom of a suit covered part
what body there of the that should not be touched. parts whether were Though declined to cross-examine. the victim’s Defense counsel seeking responses may always have been what counsel was the examination and elicit, responsive throughout the victim remained appeared that the within the up.” did not “freeze We held victim Garcia-Cordova, 392 Ill. 3d meaning of the confrontation clause. at 483-84. G., In re Rolandis opposite spectrum
At the
end of the
victim,
There,
answering
preliminary
a few
2d 13
as someone he knew from
identifying
respondent
questions
ques
“resolutely
respond”
refused to
additional
neighborhood,
recess,
G.,
Cordova. K.O. testified that she used Minnie that her Aunt longer no did so. She testified after school but married. answered and that Minnie was not She lived there as well not recall in the house. She did anyone “no” when asked if else lived change her brother’s helped her father upon the occasion which she slept grandmoth in her that she did not know who diaper. She stated her Aunt However, then testified that she had seen basement. er’s Jimmy. married to and that Alberteeta was Alberteeta the basement Jimmy. She stated identification of defendant as She made an in-court denied that he was married to Alberteeta but Jimmy why. say did not like but could stated that she uncle. She denied police station but acknowledged that she had visited She the assistant speaking recalled answering any questions. She a recess when The court took Attorney day before the trial. State’s recess, the Following the crying. her head down and started put cross-examination, K.O. During questions. it had no further State said “I don’t Jimmy, but answered had an Uncle acknowledged that she *15 her, or if mean, whether he disliked if was when asked know” into the basement when she went go upstairs to he had ever told her
909 if ever lied to replied he “no” asked she had lived. K.O. when where anything dad Jimmy or if she had ever told her parents got hit with affirmatively when asked if she responded about him. She told admitted that she has lies something a belt when she did bad and himself exposed to her or past. in the denied that a cousin She actually on Defense never tried to kiss her the mouth. counsel crime, respond but to all subject K.O. did broached available a put to her. The trial court ruled that K.O. was questions witness. akin present
I more believe that the case is to Garcia-Cordova. Rather, G., respond. the child in Rolandis Unlike K.O. never refused to Garcia-Cordova, inas questions, despite continued answer needing Furthermore, unlike two recesses. both Rolandis G. and Garcia-Cordova, actually engaged defense counsel in some cross- may examination KO.’s of K.O. answers not have been what counsel elicit; however, seeking that consequence we found to be of no case, many responses Garcia-Cordova. K.O.’s were claims that she did know certain things not could not remember various events.
That
brings
question
us
how we
should treat the situa
tion when a
knowledge by answering
declarant asserts lack of
“I don’t
know” or “I
weight
don’t remember.” The
holds
authority
that the
that
fact
a witness does not
something
recall
does
render the
not
wit
(“[T]he
Garcia-Cordova,
ness unavailable. See
I also that KO.’s statement to C.O. was in 115— corroborated to warrant its admission accordance section “ ‘to weight credibility 10. “Corroborate” means add or simply Alba, In re thing by confirming additional or facts 185 evidence.’ 286, Brunken, In (1989), Custody Ill. 290 re App. quoting 3d App. legislature qualify I note that the 3d 115—10. See 725 ILCS term “corroborative evidence” section 10(b)(2)(B) (West 2002). improper Since it to read into a is 5/115 — statute legislature did not
any limitations or conditions that (2006)), express Ill. (People Youngblood, App. v. 3d satisfy the statute. amount of corroboration is sufficient case, by her In was corroborated behavior. KO.’s statement Specifically, younger sibling’s penis an unusual touched Hill, 289 changed diaper. C.O. his See v. Ill. manner as knowledge child’s of sexual matters relevant (holding abused). context, in this determining whether child was It was manner, uttered, “Jimmy not to behave in this that K.O. being told Admittedly, majority points out, the evidence available it.” as the does G., 43-44, provided more corroboration for Rolandis 232 Ill. 2d at at issue in case. 396 3d at 904. statements Neverthe less, view, require great of the statute does my language Ac degree allow the admission of such statements. of corroboration to I also that KO.’s statement to C.O. admissible cordingly, would hold 115—10. under section al. (Noreen C. MILLER et re R. THE LIVING TRUST OF GEORGE al., et Counterdefendants-Appellees and Cross- Plaintiffs
Malone Miller-Hanson, Counterplaintiff- Appellants, Melodee S. Defendant Cross-Appellee). Appellant and No. Second District 2 — 07—0773 Opinion filed December 2009.