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No. 2--03--0019

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GROMETER delivered the opinion of the court:

Respondent, Rolandis G., was adjudicated a delinquent juvenile after the trial court found thathe committed aggravated criminal sexual assault (720 ILCS 5/12--14(b)(i) (West 2002)). Respondentappeals, contending that the trial court erred by admitting, pursuant to section 115--10 of the Codeof Criminal Procedure of 1963 (725 ILCS 5/115--10 (West 2002)), out-of-court statements theseven-year-old victim made to his mother, a police detective, and a child abuse investigator. Respondent contends that (1) the court erred in finding that the victim was "available to testify"where he answered a few preliminary questions but refused to talk about the alleged offense; (2) theState failed to introduce evidence to corroborate the out-of-court statements; and (3) under Crawfordv. Washington, 541 U.S. ___, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), section 115--10 violatesthe confrontation clause of the United States Constitution (U.S. const., amend. VI) to the extent thatit permits introduction of a "testimonial" out-of-court statement where the accused did not have anopportunity to cross-examine the declarant. We agree with respondent's third argument and hold thatthe victim's statements to the officer and the child abuse investigator were inadmissible underCrawford. However, we hold that the victim's statements to his mother were not testimonial and thatthe State introduced sufficient corroborating evidence to make them admissible even though thevictim was unavailable to testify. Accordingly, we reverse the delinquency adjudication and remandthe cause for a new hearing.

Before the adjudicatory hearing, the State moved to admit, pursuant to section 115--10, threeout-of-court statements by the victim. The trial court stated that it would not hold a separate hearingto decide if the statements were reliable, but would consider that issue during the trial.

The State's first witness was the alleged victim, V.J. V.J. testified that he was seven years old,lived with his mother and two siblings in Rockford, attended school, and sometimes played outsidewith his neighborhood friends. He indicated that he knew respondent, but did not respond whenasked how he knew respondent or whether he played with him during the summer of 2002. Herefused to answer any more questions.

V.J.'s mother, Jacqueline M., testified that respondent used to live in her neighborhood andoften visited her home. Respondent was with V.J. on June 25, 2002, the date of the alleged assault. On that day, V.J. left home at about 11 a.m. to play with friends. He returned about an hour laterwith respondent. Respondent left after V.J. told him he was going to stay home. Jacqueline thoughtit was unusual for V.J. to stay in the house on a summer day.

After respondent left, V.J. went to the bathroom, where he was "spitting in the sink" andrinsing his mouth with water. Jacqueline thought this was unusual, so she asked V.J. whether he wasthirsty. He responded that he was not, but that his throat was hot. V.J. then left the bathroom,walked around the house for awhile, then returned to the bathroom and again tried to rinse out hismouth. Jacqueline continued questioning V.J. about his unusual behavior, but he said only that hismouth was "hot." In response to further questioning, he said that he was not going back outside. Finally, about a minute later, V.J. said that respondent made him "suck his dick" in the woods neartheir home. V.J. said that respondent threatened him with a stick but never hit him with it. Jacquelinecalled the police.

Officer Robert Cure testified that he responded to Jacqueline's call and spoke to V.J. According to Cure, V.J. told him that respondent made him perform fellatio near some bushes outsidehis home. He said that respondent carried a stick, that V.J. "choked on [respondent's] dick," thatsome type of yellow fluid came out, and that he immediately went home to wash his mouth out.

One week after the incident, Jackie Weber from the Carrie Lynn Center, a child advocacycenter, interviewed V.J. Detective Paul Swanberg watched the interview through a two-way mirror. Swanberg testified that V.J. told Weber that respondent had threatened him with a stick intoperforming fellatio while they were in the woods and that a "little pee" entered V.J.'s mouth. According to Swanberg, V.J. told Weber that respondent made him perform fellatio twice, thatrespondent made V.J. "suck his nuts," and that respondent touched V.J.'s penis and buttocks. V.J.also told Weber that he had previously engaged in similar conduct with a friend named Junior.

After a short recess, V.J. again refused to testify about the incident. The State rested its case. The parties then argued whether V.J.'s out-of-court statements to Jacqueline, Cure, and Weber wereadmissible. Respondent argued that section 115--10 requires that, for statements to be admissible,either the declarant must be unavailable to testify or the State must introduce corroborating evidence. Respondent contended that V.J. was unavailable because he did not testify about the alleged abuse. The State argued that V.J. was available because he took the witness stand and gave some testimony. The court agreed with the State and, after considering other factors affecting their reliability, ruledthat all of V.J.'s out-of-court statements were admissible. Respondent testified and denied sexuallyassaulting V.J.

The court found that respondent had committed aggravated criminal sexual assault, declaredhim a delinquent minor, and sentenced him to five years' probation. Respondent timely appeals.

Respondent contends that the trial court erred in finding the victim was available to testifywhere he gave some basic background information but did not talk about the alleged sexual assault. He further argues that, because the victim was unavailable, the State had to introduce evidencecorroborating the out-of-court statements, but did not do so. In a supplemental brief, respondentargues that under Crawford, "testimonial" out-of-court statements by an unavailable declarant maynot be admitted in a criminal trial unless the declarant was subject to cross-examination when he gavethe statements. Respondent argues that section 115--10 is unconstitutional to the extent that it allowssuch statements to be admitted. Because this argument is potentially dispositive, we discuss it first.

Section 115--10 provides that in a prosecution for a physical or sexual act committed againsta child less than 13 years old, testimony about an out-of-court statement made by the victimconcerning the offense is admissible if:

"(1) The court finds in a hearing conducted outside the presence of the jury that thetime, content, and circumstances of the statement provide sufficient safeguards of reliability;and

(2) The child *** either:

(A) testifies at the proceeding; or

(B) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement[.]" 725 ILCS 5/115--10(b) (West 2002).

The sixth amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy theright *** to be confronted with the witnesses against him." U.S. Const., amend. VI. In Crawford,the Court held that the confrontation clause contemplates nothing less than an opportunity for cross-examination. Accordingly, "testimonial" hearsay is inadmissible unless the declarant is shown to beunavailable and the accused had a prior opportunity for cross-examination. Crawford, 541 U.S. at___, ___, 158 L. Ed. 2d at 193, 203, 124 S. Ct. at 1364, 1374 (2004). In so holding, the Courtabrogated the holding in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980),that an unavailable witness's statement may be admitted as long as it bears adequate indicia ofreliability. Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370.

The Court did not provide an all-inclusive definition of "testimonial," but stated that"[s]tatements taken by police officers in the course of interrogations are also testimonial under evena narrow standard." Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 193, 124 L. Ed. 2d at 1364. Later,the Court stated as follows:

"We leave for another day any effort to spell out a comprehensive definition of 'testimonial.' Whatever else the term covers, it applies at a minimum to prior testimony at a preliminaryhearing, before a grand jury, or at a former trial; and to police interrogations." Crawford, 541U.S. at ___, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.

The Court also did not define "interrogation." The statement at issue was taken from thedefendant's wife at a time when she was a suspect in the case as well. Thus, it could be argued that"interrogation" refers only to formal questioning of a suspect in custody. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). However, Crawford made clear that it used"the term 'interrogation' in its colloquial, rather than any technical legal, sense." Crawford, 541 U.S.at ___ n.4, 158 L. Ed. 2d at 194 n.4, 124 S. Ct. at 1365 n.4. The common definition of "interrogate"is "to question formally and systematically." Merriam-Webster's Collegiate Dictionary 611 (10th ed.2001).

The First District recently applied Crawford in a case with nearly identical facts. In In re T.T.,No. 1--03--0551 (August 20, 2004), the nine-year-old sexual abuse victim testified about somebackground information, but refused to answer specific questions about the abuse. The trial courtdeclared her unavailable. The court admitted, pursuant to section 115--10, the victim's statementsto a police officer and a Department of Children and Family Services (DCFS) investigator.

On appeal, the court affirmed the trial court's ruling that the witness was unavailable (T.T.,slip op. at 9-10), but held that, under Crawford, the majority of the victim's out-of-court statementsshould not have been admitted (T.T., slip op. at 14-15). On the latter issue, the court noted thatalthough Crawford did not define "testimonial," it held that the term applied " 'at a minimum to ***police interrogations.' " T.T., slip op. at 11, quoting Crawford, 541 U.S. at ___, 158 L. Ed. 2d at203, 124 S. Ct. at 1374. Thus, the witness's statement knowingly given in response to structuredpolice questioning in Crawford was testimonial under any conceivable definition. T.T., slip op. at 13,citing Crawford, 541 U.S. at ___ n.4, 158 L. Ed. 2d at 194 n.4, 124 S. Ct. at 1365 n.4. In light ofthese definitions, the T.T. court concluded that the victim's accusatory statements to the officernaming the respondent as the perpetrator qualified as testimonial. T.T., slip op. at 13.

The court also held that the victim's statements to a DCFS investigator were testimonial. Theinvestigator interviewed the victim, who accused the respondent of abusing her. The courtrecognized that child abuse has both criminal and "social welfare" implications, so that DCFS and theState's Attorney's office may share involvement in a given case. T.T., slip op. at 14. The court heldthat in the context of the confrontation clause, "where the focus is on whether the declarant is bearingwitness against a criminal defendant when making a formal statement to a government officer withan eye toward prosecution," the victim's statements are testimonial. T.T., slip op. at 15.

We agree with T.T.'s analysis of the confrontation clause issues. Accordingly, we areconstrained to hold that V.J.'s statements to Officer Cure were testimonial. They were the result offormal and systematic questioning by Cure, who was investigating a report of a sexual assault. Similarly, the statements to Weber, a child advocacy worker, were testimonial. They also came inresponse to formal questioning, with a police officer watching through a two-way mirror. Needlessto say, respondent did not have the opportunity to cross-examine the declarant when he gave thesestatements. Accordingly, under Crawford, they should not have been admitted. To the extent section115--10 permits the introduction of such statements, it is unconstitutional. We note that section 115--10 tracks closely the "indicia of reliability" language from Ohio v. Roberts that Crawford repudiated.

The State contends that V.J.'s statements to Cure and Weber were not testimonial underCrawford. The State cites the Court's reference to the historical definition of "testimony" as " '[a]solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364, quoting 1 N. Webster, AnAmerican Dictionary of the English Language (1828). The State also cites the Court's statement thattestimonial statements are those " 'that were made under circumstances which would lead an objectivewitness reasonably to believe that the statement would be available for use at a later trial.' " Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364, quoting Brief for NationalAssociation of Criminal Defense Lawyers as Amici Curiae 3. Noting the victim's young age, the Stateargues that these definitions "impl[y] a thought process and level of intent that is not consistent withthe statements of very young children." We disagree.

As the State acknowledges, Crawford concludes its discussion of the definition of "testimonial" by stating that "[w]hatever else the term covers, it applies at a minimum to *** policeinterrogations." Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. It is apparentthat the Court's further attempts at defining the term are meant to expand the definition of what is atestimonial statement, not to limit or qualify the specific examples given. The phrasing of thestatement the State quotes, referring to "circumstances that would lead an objective witnessreasonably to believe" that the statement would later be used at a trial, show that the Court's focuswas on the objective circumstances surrounding the statement, not on the declarant's subjectiveunderstanding.

Moreover, the focus of the opinion is on a defendant's right to confront the witnesses againsthim. Accordingly, a defendant's confrontation right should not depend on whether the maker of anout-of-court statement subjectively understood that the statement might be used at a later trial.⁽¹⁾ Adefinition of "testimonial" that turned solely on the subjective knowledge or intent of the declarantwould be both unfair and unworkable. Given that the declarant must be unavailable for theconfrontation clause issue to come into play, how would the speaker's subjective understanding bedetermined? Indeed, the State does not point to any specific facts to show what V.J. understoodabout the purpose of the interviews. The State merely speculates about the "thought process" ofyoung children generally. The objective circumstances surrounding V.J.'s statements to Cure andWeber show that they were testimonial.

This does not end our inquiry, however. Although the victim's statements to Cure and Webershould have been excluded, his statements to his mother were not testimonial. These statements weremore in the nature of a "casual remark to an acquaintance" that the Court implied would not betestimonial. Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364. Jacqueline merelynoticed that her son was behaving strangely and attempted to ascertain what was wrong. There isno indication that she suspected he had been the victim of a crime and that she was attempting toelicit evidence for a future prosecution.

Respondent concedes that the victim's statements to his mother were not testimonial. Henonetheless maintains that they should have been excluded under section 115--10 because thedeclarant was unavailable and the State did not present corroborating evidence. A decision to admitevidence under section 115--10 will not be reversed unless the trial court abused its discretion. People v. Williams, 193 Ill. 2d 306, 342-43 (2000).

We agree with respondent that the declarant was unavailable, even though he gave somepreliminary testimony. In People v. Coleman, 205 Ill. App. 3d 567, 583 (1990), the court held thata child witness became unavailable for purposes of section 115--10 when she testified that thedefendant had given her a "bad touch" but then she "froze up" and refused to discuss details of theincident. The court stated, "Once a child witness is unable to proceed with his or her testimony,whether that point occurred prior to taking the stand or subsequently, he or she is properly consideredunavailable." Coleman, 205 Ill. App. 3d at 583. A similar situation occurred in People v. Embry, 249Ill. App. 3d 750 (1993), where a young victim took the stand and answered some preliminaryquestions before he froze up. The court implicitly found that the young witness was unavailable, butfound that the State had introduced sufficient corroborating evidence. Embry, 249 Ill. App. 3d at760-61.

We agree with these cases. The obvious purpose of the distinction between an available andan unavailable witness is that in the former case the defendant is able to cross-examine the witness,which is sufficient to test the reliability of the statements. In the latter case, the defendant has nochance to cross-examine, so the State must introduce evidence to corroborate the statements in orderto enhance their reliability. From the standpoint of the defendant's ability to cross-examine thewitness, it makes no difference whether he becomes "unavailable" before or after he takes the witnessstand. See Coleman, 205 Ill. App. 3d at 583. Therefore, V.J. should have been found to beunavailable after he was unable to continue his testimony.

Although V.J. was unavailable, his out-of-court statements to his mother were still admissibleif the State introduced corroborating evidence. 725 ILCS 5/115--10(b) (West 2002). We agree withthe State that it did so here.

As respondent concedes, to corroborate means only " 'to add weight or credibility to a thingby additional and confirming facts or evidence' " (People v. Alba, 185 Ill. App. 3d 286, 290 (1989),quoting In re Custody of Brunken, 139 Ill. App. 3d 232, 239 (1985)). Thus, corroborating evidenceneed not prove the commission of the crime beyond a reasonable doubt or make it overwhelminglyprobable; it need only "add weight or credibility" to the out-of-court statements. Here, Jacqueline'stestimony corroborated her son's account of the incident.

Initially, Jacqueline corroborated the fact that V.J. was with respondent on the day inquestion. (Respondent's testimony confirmed as much.) Further, Jacqueline testified that immediatelyafter parting company with respondent, V.J. behaved strangely. He did not want to go back outsideon a summer day, which was unusual. He tried several times to rinse out his mouth and was evasivewhen asked to explain this conduct. Thus, Jacqueline's testimony about her own observationscorroborated V.J.'s account that respondent forced him to perform fellatio.

Respondent's argument that other possible explanations exist for Jacqueline's observations isbeside the point. The question is whether the evidence tends to corroborate V.J.'s statements. Respondent cites no authority for the premise that the corroborating evidence must be inconsistentwith any other explanation.

We find that the victim's statements to his mother were properly admitted under section 115--10 and do not raise any confrontation clause issues. Moreover, the properly admitted evidence wassufficient to prove beyond a reasonable doubt that respondent committed the offense. See Peoplev. Taylor, 76 Ill. 2d 289, 309 (1979). Therefore, we reverse the delinquency adjudication and remandthe cause to the circuit court of Winnebago County for a new hearing.

Reversed and remanded.

O'MALLEY, P.J., and CALLUM, J., concur.

1.  Of course, a declarant's subjective understanding might be relevant in some cases, such as where the circumstances surrounding the statement are ambiguous. A statement made during an informal conversation with a police officer might be such a case. However, the State does not suggest that this case presents such a situation.