People v. Stechly

Docket No. 97544.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

ROBERT STECHLY, Appellant.

Opinion filed April 19, 2007.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Justices Fitzgerald and Burke concurred in the judgment and

opinion.

Justice Kilbride concurred in part and dissented in part, with

opinion.

Chief Justice Thomas dissented, with opinion, joined by Justice

Karmeier.

Justice Garman dissented, with opinion.

OPINION

Following a stipulated bench trial in the circuit court of Cook

County, defendant Robert Stechly was convicted of predatory

criminal sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West

1998)), criminal sexual assault (720 ILCS 5/12–13(a)(1), (a)(2) (West

1998)), and aggravated criminal sexual abuse (720 ILCS

5/12–16(c)(1)(i) (West 1998)). Defendant’s convictions arose from

an incident in December 1998 involving M.M., the five-year-old

daughter of defendant’s girlfriend. As a result of the convictions, the

circuit court sentenced defendant to six years’ imprisonment.

Defendant appealed, arguing that the circuit court erred in admitting

the child’s statements pursuant to the hearsay exception for sexual

abuse victims under the age of 13 (725 ILCS 5/115–10 (West 1998)),

and in concluding that the child was unavailable to testify at trial. The

appellate court affirmed (No. 1–01–2869 (unpublished order under

Supreme Court Rule 23)), and defendant petitioned for leave to

appeal to this court. Subsequently, the United States Supreme Court

decided Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177,

124 S. Ct. 1354 (2004), which held that the testimonial hearsay

statements of a witness who is absent from trial may not be admitted

against a criminal defendant unless the witness is unavailable to

testify and the defendant had a prior opportunity for cross-

examination. Defendant filed a supplemental petition for leave to

appeal in which he cited Crawford. We allowed defendant’s petition

for leave to appeal. 210 Ill. 2d R. 315.

BACKGROUND

In 1999, defendant was indicted on charges of predatory criminal

sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West 1998)),

criminal sexual assault (720 ILCS 5/12–13(a)(1), (a)(2) (West 1998)),

and aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(1)(i)

(West 1998)). According to the indictment, the charges stemmed

from an incident that occurred on or about December 20, 1998.

Prior to trial, the State requested a hearing to determine whether

the victim’s hearsay statements were sufficiently reliable to be

admitted under section 115–10 of the Code of Criminal Procedure. At

this hearing, the State offered the testimony of three recipients of the

child’s hearsay statements. Joan G., the child’s mother, testified that,

on January 13, 1999, M.M.’s babysitter, Brenda Galete, came to

Joan’s place of employment and told Joan that they needed to take the

child to the hospital. Brenda did not tell Joan what happened, and

Joan did not know why they were going to the hospital. Joan went

with Brenda, and sat next to M.M. in the backseat of Brenda’s car.

During the ride to the hospital, Joan asked M.M. what was wrong,

and M.M. described an incident of sexual abuse by “Bob.” M.M. also

said “Bob” warned her that if she told her mother about the abuse, he

-2-

would “hurt” M.M. Joan understood “Bob” to be defendant, who at

the time lived in Joan’s apartment building in Alsip, Illinois, and was

involved with Joan in a relationship. According to Joan, on a Monday

about two weeks before Christmas 1998, defendant babysat M.M. in

his apartment while Joan was at work. Subsequently, Joan noticed

that her daughter was “acting awful strange” and “acting peculiar.”

For example, around Christmastime, when Joan suggested that she

and M.M. go to defendant’s apartment to visit, M.M. “got very upset”

and said she did not want to go there. Joan suspected that either

defendant or the child’s father had done something sexual to M.M.

About December 21, 1998, Joan confronted defendant with her

suspicions, but he denied doing anything to M.M.

Upon arriving at Christ Hospital, Joan and M.M. went to the

emergency room. While they were there, Ann Grote, a clinical

specialist in charge of the hospital’s child-abuse team, came to the

emergency room and spoke with Joan. Grote, a registered nurse,

testified at the reliability hearing that, following her conversation with

Joan, she decided to interview M.M. According to Grote, the child’s

mother told her that the perpetrator was “the babysitter,” a man with

whom Joan was involved in a relationship. Grote took M.M. to her

office in Hope Children’s Hospital, which adjoined Christ Hospital,

and interviewed the child in a playroom that was connected to Grote’s

office. Grote testified that the child described an incident of sexual

abuse by “Bob.” The details were essentially the same as those

recounted by Joan in her testimony. According to Grote, M.M. said

“Bob” told her not to tell about the abuse, and he warned M.M. that

he “would be mad” if she told her mother. After the interview, Grote

returned M.M. to the emergency room for an examination. Grote also

spoke to Joan, telling her that a report would be filed and that Grote

would contact the police department and would verify that the Illinois

Department of Children and Family Services (DCFS) had been

notified.

Grote testified further that the next day, January 14, 1999, she

spoke to Investigator Michael Fogarty of the Alsip police department

and arranged for a second interview with M.M. at about 3 p.m. that

day. The interview took place in the same playroom, which was

equipped with a microphone and was connected to a second room by

a one-way mirror. In the second room were Investigator Fogarty and

-3-

an assistant State’s Attorney. Grote began the interview with M.M.

by asking the child if she could remember why she had come to the

hospital the previous day. M.M. answered that “it was because of

what Bob had done to her.” According to Grote, M.M. then related

essentially the same incident that she had described the day before.

Also testifying at the reliability hearing was Perry Yates, a social

worker at the school where M.M. attended kindergarten. At about

8:30 a.m. on January 14, 1999–the date of Grote’s second interview

with M.M.–Yates received a telephone call at his office from M.M.’s

mother, who gave him “some information.” Yates then asked Joan if

he could speak to M.M. individually, and Joan said “that would be

fine.” In his testimony at the hearing, Yates explained his reason for

asking to speak with M.M. “The information that the mother had

disclosed put me in a position where I had to make a mandated report

[to DCFS].” Yates had a “legal obligation to check it out.” Yates

began the interview with M.M. by asking her what she could tell him

about Robert Stechly. M.M. responded by describing an incident of

sexual abuse, the details of which were similar to those recounted by

Joan and Grote. Yates stated:

“It was kind of a long rambling narrative[,] which is

unusual for the age of the child. She was very coherent, she

gave a very comprehensive step by step report to me that was

fairly alarming.”

With regard to when the alleged incident occurred, M.M. told Yates

that it happened “before Santa Claus came.” On cross-examination,

Yates conceded that, while he had mentioned the name “Robert

Stechly” in his initial question to M.M., she did not mention

defendant by name during the interview.

At the conclusion of the hearing, the circuit court found that “the

time, content, and circumstances” of the hearsay statements “provide

sufficient safeguards of reliability to be admissible.” Pursuant to

section 115–10(b)(2), the court held that the statements “shall be

admissible contingent upon one of two things occurring: [e]ither the

child testifying at trial, or a judicial determination of unavailability,

and there is corroborative evidence of the act” that was the subject of

the statements.

-4-

The State filed a motion in limine seeking a judicial determination

regarding the victim’s availability to testify. The sole witness at the

hearing on this motion was Nancy Machonkin, a clinical child

psychologist. Machonkin testified that she was hired by the victim’s

father in March 1999 to evaluate M.M. to determine what impact the

alleged abuse had on the child and the type of treatment M.M. might

need. Machonkin met with M.M. five times over a monthlong period

in the spring of 1999 and, after these five sessions, concluded that

there was no need for treatment. Machonkin met with M.M. again in

October 2000, this time in anticipation of M.M.’s possibly testifying.

M.M.’s father told Machonkin that there was a possibility that the

State might require M.M. to testify, and he wanted Machonkin to

determine what impact that might have on the child. In her testimony

at the availability hearing, Machonkin stated that in all the sessions

she had with M.M., Machonkin was never able to persuade M.M. to

talk about the sexual abuse allegations. In the spring 1999 sessions,

each time Machonkin tried to broach the alleged abuse, M.M. would

state: “I don’t want to tell. I don’t want to talk about it. I’m not going

to talk about it.” M.M. gave a similar response in the October 2000

session when Machonkin suggested the possibility of testifying in

court regarding the alleged abuse. M.M. stated: “It’s nasty. I’m

scared. I don’t want to tell. I don’t want to talk about it.”

Machonkin testified further that, if M.M. were forced to testify,

she would likely experience trauma symptoms such as anxiety, sleep

disturbance, and difficulties in concentrating and paying attention.

According to Machonkin, it would not be in the child’s best interest

to testify. Machonkin stated that, in her professional opinion, M.M.

was unavailable to testify. On cross-examination, Machonkin

acknowledged that there were steps the court might take to minimize

the stress associated with testifying. For example, M.M. could (1)

visit the courtroom when it was empty, (2) talk to the judge in

chambers, or (3) meet beforehand with the persons who would be

asking the questions. While Machonkin indicated that it might take

a year or more for M.M. to become acclimated to the courtroom, and

even then there would be no guarantees, Machonkin also stated that

M.M. might possibly become acclimated to the courtroom in as little

as two weeks.

-5-

At the conclusion of the availability hearing, the circuit court

declared M.M. legally unavailable. The court noted that M.M. had

been “repeatedly interviewed by an experienced and seasoned child

psychologist” and that M.M. had “steadfastly refused to discuss the

incident in question with this child psychologist.” The court

concluded:

“[T]his uncommunicative child would likely suffer

significant emotional harm if she were to participate in this

trial. Such participation would inject [sic] this child to fear

and anxiety to a degree that would further traumatize her.

Accordingly, the Court declares this child to be legally

unavailable for trial.”

Defendant filed a motion to reconsider the ruling declaring M.M.

unavailable to testify. The circuit court denied the motion.

Prior to the stipulated bench trial, defendant’s case was tried

before a jury. Four of the witnesses for the State at the jury trial were

the same witnesses who had testified at the reliability and availability

hearings. Their testimony before the jury was essentially consistent

with their testimony at the pretrial hearings. However, some

additional information was provided in the trial testimony. M.M.’s

mother, Joan, stated that, as far as she could recall, defendant babysat

M.M. only once. Joan also testified that, in addition to questioning

defendant in December 1998 about whether he had sexually abused

M.M., Joan asked M.M. (sometime in December before Christmas)

if her father or anyone else had ever touched her inappropriately.

M.M. said no one had. Joan testified that her nephew, Bob Reilly,

lived in an apartment in Joan’s building, but Joan insisted that her

nephew did not babysit for M.M. In addition, Joan’s testimony at trial

differed slightly from her testimony at the reliability hearing

regarding the conversation with M.M. en route to the hospital.

Whereas at the pretrial hearing Joan testified that M.M. identified her

abuser as “Bob,” and she “understood that to be Bob Stechly,” at trial

Joan testified that M.M. actually told her that “Robert Stechly”

performed the actions in question, identifying defendant by his full

first and last names. Ann Grote, the specialist in charge of the

hospital’s child-abuse team, stated that, with regard to her second

interview with M.M., Officer Christopher Radz of the Alsip police

department was also in the room adjacent to the playroom, along with

-6-

Officer Fogarty and an assistant State’s Attorney. Perry Yates, the

social worker at M.M.’s school, gave additional details about the

telephone call he received from M.M.’s mother the morning of

January 14, 1999. According to Yates, the information that M.M.’s

mother gave him that morning was that there were allegations that

M.M. had been sexually abused and that defendant had “touched”

M.M. or “done something” to her. Nancy Machonkin, the clinical

child psychologist, explained why, after meeting with M.M. five

times in spring 1999, Machonkin concluded that no treatment was

necessary. Prior to the sessions with Machonkin, M.M. had exhibited

“symptoms” including sexualized behavior, undressing and dressing

dolls, and kissing and hugging unfamiliar adults. However, M.M.’s

father and grandmother told Machonkin that, following the spring

1999 sessions with Machonkin, M.M. had ceased to exhibit such

symptoms. Machonkin also testified that, while M.M. appeared to

have moved past the alleged abuse, at least for the time being, the

child also was dealing with a new living situation. M.M.’s father had

recently obtained temporary legal and physical custody of M.M., and

the child was “dealing with transitioning, adjusting [to] living with

her father and grandmother full time.”

Also testifying for the State at the jury trial were Officer

Christopher Radz of the Alsip police department and Kent Delgado,

a Cook County assistant State’s Attorney. Radz stated that, as part of

his investigation of the alleged sexual abuse of M.M., he had

observed a “victim sensitive interview” of the child on January 14,

1999, at Hope Children’s Hospital. (This was Grote’s second

interview with M.M.) Radz explained that he and Investigator Fogarty

and an assistant State’s Attorney were situated behind a one-way

mirror while the child sat on the floor of a playroom and spoke to

Grote. Radz was able to watch and listen to the interview. That

evening, Radz and some other officers found defendant at a pizza

parlor where defendant worked part-time. Radz arrested defendant

and transported him to the Alsip police station, arriving there shortly

after 7 p.m. Defendant was informed of his Miranda rights, and he

signed a Miranda rights waiver form.

Delgado, the assistant State’s Attorney, testified that he arrived at

the Alsip police station at about 8:30 or 8:45 p.m. on January 14,

1999. At about 11 p.m., after discussing the case with officers and

-7-

investigators, and after reading their reports, Delgado spoke to

defendant. According to Delgado, defendant told Delgado about the

incident, and agreed to put his statement in writing. At the jury trial,

Delgado read defendant’s statement, in which defendant admitted to

the abuse. However, according to defendant’s statement, he was

asleep when the abuse occurred and mistakenly thought M.M. was

Joan. When he realized it was M.M. and not Joan, defendant ended

the incident. He told M.M. that it was an accident and told her not to

tell anyone because if her mother found out, she would be mad at

M.M.

The main witness for the defense at the jury trial was Brenda

Galete, the babysitter who had insisted, on January 13, 1999, that

M.M. be taken to the hospital. Galete testified that she began

babysitting for M.M. in November 1998 (prior to defendant’s

babysitting for M.M. in December 1998). At that time, Galete noticed

that M.M. was “very afraid of men,” she was “always fidgety,” and

she would never leave Galete’s side. M.M. also acted “very strange

around her mother.” Galete testified that she babysat for M.M. “at

least a couple [of] times a week,” and that Joan had other people

babysitting as well. Galete stated, contrary to Joan’s testimony, that

Joan’s nephew, Bob Reilly, who lived in Joan’s apartment building,

“babysat a lot” for M.M.

Galete testified further that, three or four days before January 13,

1999, the day when M.M. went to the hospital, Galete mentioned to

Joan that M.M. was “acting strange” and that Galete thought there

had been “some kind of sexual abuse.” On January 13, M.M. told

Galete about the incident of sexual abuse by “Bob.” According to

Galete, M.M. “never really specified which Bob.” In her testimony at

the jury trial, Galete stated: “There are too many Bobs babysitting.”

Galete was the first person M.M. told about the incident. As a result

of her conversation with M.M., Galete went to Joan’s place of

employment and insisted that they take M.M. to the hospital. Galete

stated that, while they were in the car en route to the hospital, Galete

did not remember hearing Joan ask M.M. what happened. According

to Galete, if Joan asked M.M. questions while they were in the car,

Galete did not hear what Joan was asking. This testimony differed

from that of Joan, who stated that she did discuss the incident with

M.M. while they were in the car. On cross-examination, Galete stated

-8-

that she thought “there [were] other people that molested” M.M.

Galete told the police that she thought Joan was molesting M.M.

The defense also called two expert witnesses, a clinical

psychologist and a psychiatrist. In addition, defendant testified in his

own behalf. Robert Shapiro, the clinical psychologist, was sharply

critical of the interviewing techniques used by Grote and Yates. In

Shapiro’s view, Grote should have asked more questions to determine

the identity of “Bob.” According to Shapiro, Grote obtained enough

information from M.M. to conclude that the child had been sexually

abused “by someone,” but the information was “totally inadequate to

determine who did the abuse.” Shapiro also testified that, in his

opinion, Yates’ interview with M.M. was not reliable. Shapiro noted

that Yates used defendant’s name, “Robert Stechly,” in his opening

question to M.M. According to Shapiro, this question was improperly

leading. Shapiro stated: “You’re already throwing out a name. It’s

leading to the child.”

Gregory Teas, the psychiatrist, testified that defendant had

difficulties with abstract thinking and did not understand the

ramifications of signing a statement. Teas also asserted that, in the 45

hours prior to defendant’s signing the statement at the Alsip police

station, defendant had gotten only one to three hours of sleep. In

Teas’ view, this sleep deprivation, coupled with defendant’s lack of

mental appreciation of the circumstances, played a role in defendant’s

decisionmaking the night he signed the statement. Defendant’s main

interest at the time he signed the statement, Teas asserted, was in

going home. “[H]e trusted the authorities[;] he felt that he did nothing

wrong.” According to Teas, defendant signed what he considered to

be a false statement because “he thought it was a fair thing to do to

get some sleep and so that the truth could come out the next day,

through further investigation.”

In his testimony at the jury trial, defendant acknowledged that he

babysat for M.M. on one occasion, approximately the first Monday

in December 1998, but he denied that any sexual abuse took place.

Defendant denied touching M.M. on that or any other date. He also

denied having M.M. touch him in any inappropriate place. With

regard to the interrogation at the Alsip police station on the night of

January 13, 1999, defendant testified that he denied committing the

offense. However, by the time Assistant State’s Attorney Delgado

-9-

began questioning him, defendant said he was getting tired of telling

the authorities that he “didn’t do it” and “trying to prove himself.”

Defendant told Delgado and Fogarty: “[I]f this is what you guys think

happened, I don’t care, write it down if you want to.” Defendant

signed the statement, even though he knew it was not true.

Following the presentation of evidence, the jury was instructed

and began deliberations. The jury subsequently sent a note to the

judge stating: “Split on all counts.” The judge asked each of the jurors

the following question: “In your considered opinion, could further

deliberations possibly result in a verdict?” Each juror answered “no.”

The judge declared a mistrial.

Defendant waived his right to a second jury trial, and requested

a bench trial instead. The parties then stipulated that, if they were to

call witnesses at the bench trial, they would call the same witnesses

who testified at the jury trial, and their testimony would be the same

as it was at the jury trial. The judge stated that he “well

remember[ed]” the facts of the case and the testimony of each

witness. He added that he had taken “copious notes during the course

of the jury trial” and had reviewed those notes. The judge found

defendant guilty on all counts.

Defendant moved for a new trial, arguing that (1) the evidence

was insufficient to prove him guilty beyond a reasonable doubt, and

(2) the court erred in (a) declaring the victim unavailable for trial and

(b) allowing Ann Grote, Perry Yates, and Joan G. to testify as to the

victim’s hearsay statements. According to defendant, the hearsay

testimony of these three witnesses was neither reliable nor credible

evidence. The motion for a new trial was denied. The court sentenced

defendant to six years in prison.

On appeal, defendant raised two arguments. First, he contended

that the trial court erred in admitting M.M.’s hearsay statements.

According to defendant, the State failed to meet its statutory burden

of showing that the hearsay statements were reliable. See 725 ILCS

5/115–10 (West 1998). Defendant noted that the State failed to call

Brenda Galete, the babysitter who was the initial outcry witness, to

testify at the reliability hearing. In defendant’s view, Galete’s

testimony “was critical to showing all the circumstances that led to

the subsequent [hearsay] statements and for determining their

reliability.”

-10-

Defendant also argued that the trial court erred in declaring M.M.

unavailable to testify. According to defendant, the testimony of

psychologist Nancy Machonkin, the sole witness at the unavailability

hearing, was insufficient to establish that M.M. was unable to testify

at trial.

The appellate court affirmed the judgment of the circuit court. No.

1–01–2869 (unpublished order under Supreme Court Rule 23). With

regard to defendant’s argument that the State should have called

Galete, the initial outcry witness, to testify at the reliability hearing,

the appellate court stated: “The outcry witness, to whom the child

victim first reports the sexual assault, is not required to testify in

order for the child’s statements to be deemed reliable.” No.

1–01–2869 (unpublished order under Supreme Court Rule 23).

The appellate court also rejected defendant’s unavailability

argument. The court concluded, contrary to defendant’s contention,

that Machonkin’s testimony was sufficient to show that M.M. was

unavailable to testify. The appellate court held: “[T]he trial court did

not abuse its discretion in determining, on the evidence presented,

that M.M. was legally unavailable for trial.”

DISCUSSION

Before this court, defendant renews the reliability and availability

arguments that he advanced in the appellate court below. Defendant

contends that the State failed to meet its burden of establishing the

reliability of M.M.’s hearsay statements, and the circuit court

therefore erred in admitting these statements. Defendant also argues

that the circuit court erred in declaring M.M. unavailable to testify.

The State responds that the circuit court was well within its discretion

in finding the statements reliable and finding M.M. unavailable to

testify, and urges that we affirm the circuit court’s rulings on these

issues.

In addition, defendant advances an alternative argument that was

not presented to the appellate court. Defendant now contends that the

admission of M.M.’s hearsay statements violated his sixth

amendment right to confront the witnesses against him, and therefore

these statements should not have been admitted. He bases his

argument on the Supreme Court’s decision in Crawford v.

-11-

Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004),

which was decided after the appellate court rendered its decision in

this case. There, the Supreme Court held that the “testimonial”

hearsay statements of a witness who does not testify at trial are

inadmissible against a criminal defendant unless the witness is

unavailable to testify and the defendant had a prior opportunity for

cross-examination. In the case at bar, defendant argues that M.M.’s

statements were testimonial hearsay as contemplated in Crawford.

Defendant contends that, because he had no opportunity to cross-

examine M.M., the admission of her statements violated the

confrontation clause under Crawford.

The State raises a host of counterarguments to defendant’s

Crawford-based confrontation clause claim. The State contends

initially that we ought not even consider the argument, for two

reasons: defendant waived the argument by failing to raise it below,

and defendant forfeited the protection of the confrontation clause

because his conduct was responsible for M.M.’s unavailability for

trial. On the merits of the confrontation clause claim, the State argues

that the statements made by M.M. were not “testimonial” and thus did

not trigger the confrontation clause’s protection, because M.M. was

not aware that her statements could be used in future prosecution and

because none of the statements were made directly to representatives

of law enforcement. Finally, the State argues that any confrontation

clause violation which we may find to have occurred was in any event

harmless.

As a general rule courts avoid deciding constitutional questions

when other, nonconstitutional grounds exist for resolving the case.

See, e.g., People v. Lee, 214 Ill. 2d 476, 482 (2005); In re Detention

of Swope, 213 Ill. 2d 210, 218 (2004), quoting In re S.G., 175 Ill. 2d

471, 479 (1997). Thus we ordinarily first would turn to defendant’s

arguments regarding reliability and availability, before addressing

Crawford and the confrontation clause. However, as the State notes,

defendant’s reliability and availability arguments are both couched in

constitutional terms. Moreover, the far-reaching changes Crawford

and its progeny have wrought to confrontation clause analysis may

well impact our consideration of these other issues as well.

Accordingly, we believe the most efficient route will be to turn first

to defendant’s new argument: that introduction of M.M.’s statements

-12-

to her mother, Grote, and Yates violated his rights under the

confrontation clause.

I. Defendant’s Confrontation Clause Claim

A. Introduction

The sixth amendment to the United States Constitution, which

was adopted in 1791, provides that

“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for his

defence.” U.S. Const., amend. VI.

That portion of the sixth amendment which provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right *** to be

confronted with the witnesses against him” is known as the

confrontation clause. This right extends to the states through the

fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 406, 13 L. Ed.

2d 923, 927-28, 85 S. Ct. 1065, 1069 (1965). See also Ill. Const.

1970, art. I, §8 (amended 1994) (“In criminal prosecutions, the

accused shall have the right *** to be confronted with the witnesses

against him or her”).

In 1980, the United States Supreme Court established a general

framework for confrontation clause analysis in Ohio v. Roberts, 448

U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). There, the Court

held that

“when a hearsay declarant is not present for cross-

examination at trial, the Confrontation Clause normally

requires a showing that he is unavailable. Even then, his

statement is admissible only if it bears adequate ‘indicia of

reliability.’ Reliability can be inferred without more in a case

where the evidence falls within a firmly rooted hearsay

exception. In other cases, the evidence must be excluded, at

-13-

least absent a showing of particularized guarantees of

trustworthiness.” Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608,

100 S. Ct. at 2539.

The Roberts framework for confrontation clause analysis lasted for

nearly two decades, and section 115–10 of our Code of Criminal

Procedure of 1963 was tailored to suit the constitutional requirements

therein delineated. See 725 ILCS 5/115–10 (West 2000).

B. Crawford and Davis

However, in 2004 the Supreme Court fundamentally altered its

approach to confrontation clause analysis. In Crawford v.

Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004),

the Court considered the appeal of a criminal defendant who was

convicted based in part on statements his wife made during an

interview while in police custody. The defendant’s wife did not testify

at trial, because of defendant’s invocation of spousal privilege.

However, the trial court admitted her out-of-court statements, over

defendant’s confrontation clause objection, after determining that

they bore “particularized guarantees of trustworthiness.”

The Court overruled Roberts and held that the admission of the

statement against defendant violated the confrontation clause. The

Court began by revisiting the historical origins of the confrontation

clause, noting that it was a reaction against the civil law practice of

admitting at trial statements made outside of court, in response to

questioning by justices of the peace or other officials. Crawford, 541

U.S. at 43-50, 158 L. Ed. 2d at 187-92, 124 S. Ct. at 1359-63. The

Court labeled the political trials of the sixteenth and seventeenth

centuries the most “notorious” examples of this practice (Crawford,

541 U.S. at 44, 158 L. Ed. 2d at 188, 124 S. Ct. at 1360), and

specifically noted the trial of Sir Walter Raleigh. There, Lord

Cobham, Raleigh’s alleged accomplice, accused Raleigh in both an

out-of-court examination and a letter, both of which were admitted at

Raleigh’s trial as evidence against him. The judges rejected Raleigh’s

pleas for Cobham to be brought to court to testify in person, and the

jury convicted Raleigh and sentenced him to death. Crawford, 541

U.S. at 44, 158 L. Ed. 2d at 188, 124 S. Ct. at 1360. The Court in

-14-

Crawford went on to note subsequent reforms in English law, as well

as practices in the Colonies.

The Court’s historical review led the Court to two conclusions

regarding the confrontation clause:

“First, the principal evil at which the Confrontation

Clause was directed was the civil-law mode of criminal

procedure, and particularly its use of ex parte examinations as

evidence against the accused. ***

***

The historical record also supports a second proposition:

that the Framers would not have allowed admission of

testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had

had a prior opportunity for cross-examination.” Crawford,

541 U.S. at 50-54, 158 L. Ed. 2d at 192-94, 124 S. Ct. at

1363-65.

These two propositions led the Court to conclude that the protections

provided by the Roberts framework were insufficient in the context

of “testimonial” statements. Crawford, 541 U.S. at 61-62, 158 L. Ed.

2d at 199, 124 S. Ct. at 1370-71. Rather, “[w]here testimonial

statements are at issue, the only indicium of reliability sufficient to

satisfy constitutional demands is the one the Constitution actually

prescribes: confrontation.” Crawford, 541 U.S. at 68-69, 158 L. Ed.

2d at 203, 124 S. Ct. at 1374. However, the Crawford Court explicitly

declined to define what exactly makes a statement “testimonial.” See

Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.

The Court noted a few possible definitions but rather than attempting

a comprehensive definition, simply held that whatever the definition

of “testimonial hearsay” might be, “interrogations by law

enforcement officers fall squarely within” it. Crawford, 541 U.S. at

53, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365. The Court held that the

recorded statement at issue in Crawford, “knowingly given in

response to structured police questioning, qualifies” as having been

the product of an interrogation “under any conceivable definition.”

Crawford, 541 U.S. at 53 n.4, 158 L. Ed. 2d at 194 n.4, 124 S. Ct. at

1365 n.4. See also Crawford, 541 U.S. at 52, 158 L. Ed. 2d at 193,

124 S. Ct. at 1364 (“Statements taken by police officers in the course

-15-

of interrogation are also testimonial under even a narrow standard”);

Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374

(“Whatever else the term covers, it applies at a minimum to prior

testimony at a preliminary hearing, before a grand jury, or at a former

trial; and to police interrogations,” which are “the modern practices

with closest kinship to the abuses at which the Confrontation Clause

was directed”).

More recently, the Court returned to the confrontation clause and

added to the Crawford jurisprudence. In Davis v. Washington, 547

U.S. __, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006), the Court

considered statements from two distinct appeals in which criminal

defendants raised confrontation clause challenges to out-of-court

statements which had been admitted at their trials. In the first case,

the statements were made in the context of an emergency call to a 911

operator. In the second case, the statements were made to police

officers at the scene of a domestic altercation, after the altercation had

ended. The Court concluded the statements to the officers at the scene

of the domestic disturbance were testimonial (Davis, 547 U.S. at __,

165 L. Ed. 2d at 241-42, 126 S. Ct. at 2278), but the statements to the

911 operator were not (Davis, 547 U.S. at __, 165 L. Ed. 2d at 240-

41, 126 S. Ct. at 2276-77). The differing results were not based on

any distinction between police officers and 911 operators per se,

because the Court assumed for purposes of analysis that 911 operators

were agents of law enforcement. Davis, 547 U.S. at __ n.2, 165 L. Ed.

2d at 238 n.2, 126 S. Ct. at 2274 n.2. Rather, the Court clarified or

modified its holding in Crawford to hold that statements to law

enforcement officials are not always testimonial. The Court held that

whether such statements were testimonial depended on the

intent–more specifically, objective manifestations of intent–of the

police when taking the statement:

“Statements are nontestimonial when made in the course of

police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency. They

are testimonial when the circumstances objectively indicate

that there is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.”

-16-

Davis, 547 U.S. at __, 165 L. Ed. 2d at 237, 126 S. Ct. at

2273-74.

C. The Case at Bar

1. Waiver

As previously noted, the State argues initially that defendant has

waived any confrontation clause claims by not raising them below.

We reject this argument. “Crawford announced a new rule regarding

the effect of the confrontation clause on the admission of hearsay

statements in criminal prosecutions.” People v. Sisavath, 118 Cal.

App. 4th 1396, 1400, 13 Cal. Rptr. 3d 753, 756 (2004); see also

People v. Compan, 100 P.3d 533, 537 (Colo. App. 2004). “ ‘A new

rule for the conduct of criminal prosecutions is to be applied

retroactively to all cases, state or federal, pending on direct review or

not yet final.’ ” Sisavath, 118 Cal. App. 4th at 1400, 13 Cal. Rptr. 3d

at 756, quoting Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d

649, 661, 107 S. Ct. 708, 716 (1987); People v. Ford, 198 Ill. 2d 68,

72-73 (2001). It would be manifestly unfair to hold defendant to have

waived claims by not raising them at trial when those claims are

based on a rule which was only announced during the pendency of his

appeal to this court.

2. Forfeiture by Wrongdoing

The State argues in the alternative that defendant should not be

permitted to raise a confrontation clause claim because he himself is

to blame for M.M.’s unavailability. The State’s argument is based on

the equitable doctrine of forfeiture by wrongdoing. As the Supreme

Court stated in Crawford, 541 U.S. at 62, 158 L. Ed. 2d at 199, 124

S. Ct. at 1370, “the rule of forfeiture by wrongdoing (which we

accept) extinguishes confrontation claims on essentially equitable

grounds.” According to this rule, “one who obtains the absence of a

witness by wrongdoing forfeits the constitutional right to

confrontation.” Davis, 547 U.S. at __, 165 L. Ed. 2d at 244, 126 S.

Ct. at 2280. See also Reynolds v. United States, 98 U.S. 145, 158, 25

L. Ed. 244, 247 (1879) (“The Constitution gives the accused the right

to a trial at which he should be confronted with the witnesses against

-17-

him; but if a witness is absent by his own wrongful procurement, he

cannot complain if competent evidence is admitted to supply the

place of that which he has kept away”).

The parties differ on the application of this doctrine. Defendant

argues that his confrontation rights are forfeited only if he intended

to cause the witness to be unavailable for trial. He contends that there

is no evidence that he intended to preclude M.M. from testifying

against him and, accordingly, he should retain his right to confront

her. The State advocates for a broader approach, arguing that the

doctrine of forfeiture by wrongdoing accepted by the Court in

Crawford “does not require an intent to prevent the witness from

testifying.” The State contends that the doctrine focuses on the

defendant’s wrongdoing and its result, rather than on the defendant’s

motive. The State argues that M.M. is unavailable for trial solely

because of defendant’s assault and, accordingly, he has forfeited his

right to confront her, regardless of whether he had any intent to

prevent her from testifying.

Courts are split on the intent requirement. Some courts have held

that intent is an element of the doctrine (see, e.g., People v. Melchor,

362 Ill. App. 3d 335 (2005), appeal allowed, 218 Ill. 2d 551 (2006)

(table); Commonwealth v. Edwards, 444 Mass. 526, 540, 830 N.E.2d

158, 170 (2005); State v. Alvarez-Lopez, 136 N.M. 309, 315, 98 P.3d

699, 705 (2004)), but as the State and the dissent note, the majority

of decisions are to the effect that the defendant’s intent is not

relevant. See Gonzalez v. State, 195 S.W.3d 114, 119 n.25 (Tex.

Crim. App. 2006), quoting J. Kroger, The Confrontation Waiver Rule,

76 B.U.L. Rev. 835, 854, 875-77 (1996).

Depending on one’s understanding of the theoretical

underpinnings of the rule, support can be found for both views. The

doctrine serves the public policy of protecting “the integrity of the

adversary process by deterring litigants from acting on strong

incentives to prevent the testimony of an adverse witness.” Steele v.

Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982). See also United States

v. Thompson, 286 F.3d 950, 962 (7th Cir. 2002) (noting that “[t]he

primary reasoning behind this rule is *** to deter criminals from

intimidating or ‘taking care of’ potential witnesses against them”).

When the rule is considered in this light, it makes sense to limit its

application to those situations in which the defendant intended to

-18-

procure the witness’ unavailability. It is, after all, impossible to deter

those who do not act intentionally. However, the Supreme Court has

stated that the doctrine of forfeiture by wrongdoing is rooted in the

equitable “maxim that no one shall be permitted to take advantage of

his own wrong” (Reynolds, 98 U.S. at 159, 25 L. Ed. at 248). This

understanding of the foundation of the rule lends support to the

conclusion that any wrongdoing which results in a witness’

unavailability should vitiate the confrontation right, because

otherwise the defendant would benefit from his wrongful conduct.

However, although the foundation supplied in Reynolds may be

capable of supporting a very broad rule, the doctrine the Supreme

Court actually applied in that case was extremely narrow. The rule the

Court endorsed in Reynolds permits admission only of prior

“testimony, taken on a former trial between the same parties upon the

same issues.” Even such evidence was held admissible only when the

defendant “corruptly” or “wrongfully” kept the witness away.

Reynolds, 98 U.S. at 158-59, 25 L. Ed. at 247-48. Moreover,

Reynolds unequivocally imposed an “intent” requirement.

Notwithstanding the broad basis for the rule, when the Reynolds

Court discussed the guarantees of the confrontation clause, it stated

that the Constitution grants an accused “the privilege of being

confronted with the witnesses against him; but if he voluntarily keeps

the witnesses away, he cannot insist on his privilege. If, therefore,

when absent by his procurement, their evidence is supplied in some

lawful way, he is in no condition to assert that his constitutional rights

have been violated.” (Emphasis added.) Reynolds, 98 U.S. at 158, 25

L. Ed. at 247. The statement that the accused forfeits his

confrontation rights when he “voluntarily” keeps the witnesses away

is a clear expression of intent. Regardless of whether a broader rule

could exist as a matter of equity, the rule laid down by the Supreme

Court in Reynolds contemplates an accused intentionally procuring a

witness’ absence.

The Supreme Court’s much more recent decision in Davis

indicates that this remains the law. In reaffirming the rule, Davis

stated:

“We may not, however, vitiate constitutional guarantees when

they have the effect of allowing the guilty to go free.

[Citation.] But when defendants seek to undermine the

-19-

judicial process by procuring or coercing silence from

witnesses and victims, the Sixth Amendment does not require

courts to acquiesce. While defendants have no duty to assist

the State in proving their guilt, they do have the duty to

refrain from acting in ways that destroy the integrity of the

criminal trial system.” (Emphasis added and omitted.) Davis,

547 U.S. at __, 165 L. Ed. 2d at 244, 126 S. Ct. at 2280.

The Court here clearly states that not all conduct which happens to

result in a witness’ unavailability will constitute forfeiture by

wrongdoing. Rather, only that conduct through which a defendant

“seek[s] to undermine the judicial process” or “destroy the integrity

of the criminal trial system” qualifies. This strongly connotes a

requirement of intent. An act of assault, however heinous and

reprehensible in its own right, is not without more an attempt to

“undermine the judicial process.” It becomes such only when the

assault is motivated at least in part by an intent to interfere with or

impede the process of a trial at which all witnesses with relevant

knowledge appear and testify and are subject to cross-examination.

Another statement in Davis reinforces our conclusion. Federal

Rule of Evidence 804(b)(6) provides an exception to the hearsay rule

when the declarant is unavailable and the prior out-of-court statement

is “offered against a party that has engaged or acquiesced in

wrongdoing that was intended to, and did, procure the unavailability

of the declarant as a witness.” Fed. R. Evid. 804(b)(6). The State and

the dissent concede, as they must, that Rule 804(b)(6) contains an

intent requirement, but argue that the equitable doctrine of forfeiture

by wrongdoing is broader than Rule 804(b)(6). However, in Davis the

Supreme Court stated that Rule 804(b)(6) “codifies the forfeiture

doctrine.” Davis, 547 U.S. at ___, 165 L. Ed. 2d at 244, 126 S. Ct. at

2280. Accord United States v. Gray, 405 F.3d 227, 241 (4th Cir.

2005); United States v. Dhinsa, 243 F.3d 635, 653 (2d Cir. 2001);

United States v. Ochoa, 229 F.3d 631, 639 (7th Cir. 2000);United

States v. Cherry, 217 F.3d 811, 815 (10th Cir. 2000); Commonwealth

v. Edwards, 444 Mass. 526, 830 N.E.2d 158 (2005); State v. Henry,

76 Conn. App. 515, 533, 820 A.2d 1076, 1087 (2003). In other

words, Rule 804(b)(6) and the equitable doctrine are coextensive,

because the former is a legislative enactment of the latter. See Black’s

Law Dictionary 252, 1420 (7th ed. 1999) (“codification” is “[t]he

-20-

process of compiling, arranging, and systematizing the laws of a

given jurisdiction, or of a discrete branch of the law, into an ordered

code”; a “codifying statute” is “[a] law that purports to be exhaustive

in restating the whole of the law on a particular topic, including prior

caselaw as well as legislative provisions”). Thus, according to the

Supreme Court–and the numerous other courts to have so held–Rule

804(b)(6) and its intent requirement reflect the common law equitable

doctrine.

Considering Rule 804(b)(6) when analyzing the common law

equitable doctrine of forfeiture by wrongdoing does not conflict with

the statement in Crawford that the protection afforded by the

confrontation clause does not depend on “the vagaries of the [r]ules

of [e]vidence.” See United States v. Garcia-Meza, 403 F.3d 364, 370

(6th Cir. 2005), quoting Crawford, 541 U.S. at 61, 158 L. Ed. 2d at

199, 124 S. Ct. at 1370. This takes the statement from Crawford

entirely out of context. Crawford was concerned with rejecting the

notion that a defendant’s confrontation clause rights are adequately

protected so long as the rules against hearsay are satisfied. Rule

804(b)(6) was not at issue in Crawford; it was not even mentioned.

Moreover, our point here is not that Rule 804(b)(6) has the power to

force the common law and constitution to conform to its dictates, but

rather that Rule 804(b)(6) was intended to be a reflection of the

common law, to describe how the common law in fact operates. That

is what a “codification” is. See Black’s Law Dictionary 252 (7th ed.

1999).

The dissent contends that the advisory committee’s notes

establish that Rule 804(b)(6) is “designed to deter” witness

tampering, “especially in the area of gang or organized crime.” Slip

op. at 69 (Thomas, C.J., dissenting, joined by Karmeier, J.). The

committee notes at the time subsection (b)(6) was adopted provide:

“Rule 804(b)(6) has been added to provide that a party

forfeits the right to object on hearsay grounds to the

admission of a declarant’s prior statement when the party’s

deliberate wrongdoing or acquiescence therein procured the

unavailability of the declarant as a witness. This recognizes

the need for a prophylactic rule to deal with abhorrent

behavior ‘which strikes at the heart of the system of justice

itself.’ United States v. Mastrangelo, 693 F.2d 269, 273 (2d

-21-

Cir. 1982), cert. denied, 467 U.S. 1204 (1984). The

wrongdoing need not consist of a criminal act. The rule

applies to all parties, including the government.” Fed. R.

Evid. 804, Notes of Advisory Committee on Rules–1997

Amendments.

Nothing here indicates that the rule was intended to be as limited in

application as the dissent suggests. See also 4 S. Saltzburg, M. Martin

& D. Capra, Federal Rules of Evidence Manual §804.02(16), at

804–35 (9th ed. 2006) (noting that although the rule was “derived

from cases that have held that a criminal defendant forfeits his right

to confrontation if he causes or acquiesces in the witness’

unavailability,” the rule “is not limited to criminal cases” but applies

to “any party” who procures a witness’ absence, including parties in

civil cases and the prosecution in a criminal case). Regardless, given

the Supreme Court’s statement that the rule “codifies” the common

law doctrine, any statement by the advisory committee suggesting

otherwise would seem irrelevant.

What, then, of the numerous cases finding intent irrelevant to the

doctrine? In short, they are all distinguishable. First, nearly all such

cases predate Davis and the statements therein, e.g., that the doctrine

contemplates an effort to “undermine the judicial process” and that

Rule 804(b)(6) “codifies,” i.e., reflects, the common law doctrine. See

United States v. Garcia-Meza, 403 F.3d 364 (6th Cir. 2005); United

States v. Emery, 186 F.3d 921 (8th Cir. 1999); United States v. Miller,

116 F.3d 641 (2d Cir. 1997); United States v. Mayhew, 380 F. Supp.

2d 961 (S.D. Ohio 2005); Gonzalez v. State, 155 S.W.3d 603, 610-11

(Tex. App.–San Antonio 2004), aff’d, 195 S.W.3d 114 (Tex. Crim.

App. 2006);1 People v. Hale, 277 Wis. 2d 593, 691 N.W.2d 637

(2005); People v. Bauder, 269 Mich. App. 174, 712 N.W.2d 506

(App. 2005); State v. Meeks, 277 Kan. 609, 88 P.3d 789 (2004);

People v. Moore, 117 P.3d 1 (Colo. App. 2004); Commonwealth v.

Salaam, 65 Va. Cir. 405 (2004). Of the few cases which postdate

1

Although the decision affirming the Texas appellate court was filed two

days after Davis, the Court of Criminal Appeals of Texas declined to

address whether intent was required for forfeiture by wrongdoing, because

the court held that the requisite intent could be inferred in the

circumstances of the case at bar. Gonzalez, 195 S.W.3d at 124-25.

-22-

Davis, none even acknowledge the statement therein that Rule

804(b)(6) “codifies” the common law rule. See United States v.

Natson, No. 4:05–cr–21 (M.D. Ga. November 22, 2006); Grayson v.

Carey, No. CIV S–03–1694–MCE–KJM (August 9, 2006) (findings

and recommendations by United States Magistrate Judge Kimberly

J. Mueller), adopted by district court, No. 2:03–cv–1694–MCE–KJM

(September 8, 2006); People v. Vasquez, No. 04CA0729 (Colo. App.

November 30, 2006), cert. granted, No. 07SC50 (March 26, 2007);

State v. Brooks, No. W2004–02834–CCA–R3–CD (Tenn. Crim. App.

August 31, 2006), appeal granted, No. W2004–02834–SC–R11–CD

(January 22, 2007). But see Brooks,

No.W2004–02834–CCA–R3–CD (Tipton, J., concurring and

dissenting) (noting this language from Davis and stating that “if

Justice Scalia’s statement in Davis regarding the rule codifying the

doctrine represents his usual clarity, I do not think we can ignore the

defendant’s intent in considering whether the forfeiture doctrine

applies”). Second, so far as our research has discerned, every case

holding intent irrelevant has involved the defendant’s murdering the

witness. As our appellate court has observed, “the prevailing view, in

situations other than the unique situation detailed above, [is that] the

intent or motive of a defendant in engaging in the conduct he does is

relevant to whether the forfeiture by wrongdoing rule is invoked.”

Melchor, 362 Ill. App. 3d at 351.2 The reason that it is nevertheless

accurate to state that the majority of cases have found intent irrelevant

is simply a numbers game–most cases to consider the question have

involved the murder of the witness. Henderson, 35 Kan. App. 2d at

253, 29 P.3d at 654-55, appeal granted, No. 04–92251–AS

(September 19, 2006).

2

Of particular relevance to this case, intent has been required in

prosecutions for domestic violence (State v. Wright, No. AO3–1197 (Minn.

January 25, 2007)), a type of case which Davis acknowledged is

“notoriously susceptible to intimidation or coercion of the victim to ensure

she does not testify at trial” (Davis, 547 U.S. at ___, 165 L. Ed. 2d at 243-

44, 126 S. Ct. at 2279-80), as well as child sexual abuse (State v.

Henderson, 35 Kan. App. 2d 241, 253, 129 P.3d 646, 655 (2006), appeal

granted, No. 04–92251–AS (September 19, 2006)), the type of crime at

issue in the instant case.

-23-

Moreover, although the above authority is distinguishable on the

bases we have discussed, it might also be reconcilable with the

general rule that intent is required. Notwithstanding that some cases

contain broader language, the above cases have essentially held that

the prosecution need not prove that the defendant committed murder

with the intent of procuring the victim’s absence. This is consistent

with presuming such intent when the wrongdoing at issue is murder.

When a defendant commits murder, notwithstanding any protestation

that he did not specifically intend to procure the victim’s inability to

testify at a subsequent trial, he will nonetheless be sure that this

would be a result of his actions. Murder is, in this sense, different

from any other wrongdoing in which a defendant could engage with

respect to a witness–more than a possibility, or a substantial

likelihood, a defendant knows with absolute certainty that a murder

victim will not be available to testify. Although we express no

opinion on the topic, as it is not before us on this appeal, the total

certainty that a murdered witness will be unavailable to testify could

theoretically support presuming intent in the context of murder, while

requiring proof of intent in all other situations.

Regardless, we find the cases involving murder distinguishable.

As our appellate court has noted, outside of the context of murder, the

authorities uniformly require proof of intent. See Melchor, 362 Ill.

App. 3d at 351. Our review of Reynolds and Davis leads us to agree

with this conclusion. Accordingly, we hold that the State must prove

that the defendant intended by his actions to procure the witness’

absence to invoke the doctrine of forfeiture by wrongdoing.

The State argues, however, that even if intent is relevant, the

doctrine still ought to be applied in the case at bar because defendant

did indeed intentionally procure the witness’ absence. The State notes

that both the victim’s mother and Grote testified that the victim had

told them defendant had warned her not to recount the incident. The

victim’s mother said that the victim told her that defendant had said

he would hurt her if she discussed it. Although defendant only

specifically cautioned the victim against telling her mother about the

incident, the State argues that defendant’s threats and warnings were

intended to and did intimidate the victim generally, as evinced by the

victim’s statements to Machonkin that she did not want to testify

because, in part, she was “scared.”

-24-

There is sufficient evidence here that we cannot dismiss this

argument out of hand. However, the applicability of the forfeiture-by-

wrongdoing rule requires a factual determination that this court is ill-

equipped to make in the first instance. The State did not rely on the

theory of forfeiture by wrongdoing at trial because the circuit court

ruled the evidence admissible–and because, of course, Crawford was

not decided until this case was already on appeal. But if defendant is

to be permitted to raise his confrontation clause claim for the first

time on appeal, the State must equally be permitted to raise the

responsive argument of forfeiture by wrongdoing. Accordingly, we

believe the appropriate procedure is to remand the cause to the circuit

court for a hearing on forfeiture by wrongdoing.

The Supreme Court has given some guidance regarding such

hearings. Although the Court has not itself explicitly endorsed a

specific burden of proof, the Court did note in Davis that both federal

and state courts tend to hold that the State’s burden of proof in a

hearing on forfeiture by wrongdoing is a preponderance of the

evidence. Davis, 547 U.S. at __, 165 L. Ed. 2d at 244, 126 S. Ct. at

2280. The Court also observed with apparent approval a state court

ruling permitting consideration of “ ‘hearsay evidence, including the

unavailable witness’s out-of-court statements’ ” at such hearings.

Davis, 547 U.S. at __, 165 L. Ed. 2d at 244, 126 S. Ct. at 2280,

quoting Edwards, 444 Mass. at 545, 830 N.E.2d at 174. We agree

with both of these propositions, and direct that they be followed on

remand.

However, it would be a waste of judicial resources for us to

remand without first considering the merits of the underlying

confrontation clause claim. The issue has been fully briefed before

this court, and if the confrontation clause claim is invalid, after all,

there is no reason for the circuit court to waste judicial resources in

attempting to evaluate whether defendant waived it. Accordingly, we

turn to the merits of defendant’s confrontation clause claims.

3. Merits

a. General Analytical Framework

After Crawford, a testimonial statement of a witness who does

not testify at trial is never admissible unless (1) the witness is

-25-

unavailable to testify, and (2) the defendant had a prior opportunity

for cross-examination. Crawford, 541 U.S. at 53-54, 158 L. Ed. 2d at

194, 124 S. Ct. at 1365. Moreover, Davis made clear that the

confrontation clause has no application to nontestimonial statements.

Davis, 547 U.S. at __, 165 L. Ed. 2d at 237, 126 S. Ct. at 2273 (“It is

the testimonial character of the statement that separates it from other

hearsay that, while subject to traditional limitations upon hearsay

evidence, is not subject to the Confrontation Clause” (emphasis

added)); Davis, 547 U.S. at __, 165 L. Ed. 2d at 238, 126 S. Ct. at

2274 (noting that Crawford had “suggested” that the confrontation

clause applies only to testimonial hearsay and stating that “[a]

limitation so clearly reflected in the text of the constitutional

provision must fairly be said to mark out not merely its ‘core,’ but its

perimeter”).

Thus, the threshold question in confrontation clause analysis is,

Are the statements at issue “testimonial”? If not, the confrontation

clause places no restriction on their introduction (although they are

still subject to “traditional limitations upon hearsay evidence” (see

Davis, 547 U.S. at __, 165 L. Ed. 2d at 237, 126 S. Ct. at 2273)). If

the statements are testimonial, the next question is, Will the declarant

testify? If so, the confrontation clause again places no restriction on

the introduction of the declarant’s prior hearsay statements, as the

defendant will have the opportunity to cross-examine–confront–the

declarant. Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197 n.9, 124

S. Ct. at 1369 n.9. Finally, if the statements are testimonial and the

declarant will not testify, then the statements are inadmissible unless

both (a) the declarant is unavailable to testify, and (b) the defendant

had a prior opportunity to cross-examine the declarant. Crawford, 541

U.S. at 53-54, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365.

b. “Testimonial Statements”

The Court has thus far declined to define a “testimonial”

statement. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct.

at 1374. Rather, as previously noted, the Court’s approach has been

to steer away from generalized, abstract pronouncements and instead

to focus on the particular statements under consideration.

-26-

However, although Crawford “did not set forth a detailed

framework for addressing whether a statement is ‘testimonial’ ”

(Davis, 547 U.S. at __, 165 L. Ed. 2d at 246, 126 S. Ct. at 2282

(Thomas, J., concurring in the judgment and dissenting in part)), the

Court did analyze the text of the confrontation clause itself, and in so

doing suggested a two-part test for determining when a statement is

testimonial. The Court began with the language of the confrontation

clause, noting that it gives a defendant the right to be “confronted

with the witnesses against him.” The Court looked to an early version

of Webster’s dictionary, which defined “witnesses” as those who

“ ‘bear testimony.’ ” Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 192,

124 S. Ct. at 1364, quoting 1 N. Webster, An American Dictionary of

the English Language (1828). In turn, the Court noted, “testimony”

was defined as a “ ‘solemn declaration or affirmation made for the

purpose of establishing or proving some fact.’ ” Crawford, 541 U.S.

at 51, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364, quoting 1 N. Webster,

An American Dictionary of the English Language (1828). Thus, those

“witnesses” whom the confrontation clause gives a defendant the

right to confront are those who bear “testimony,” i.e., solemn

declarations for the purpose of establishing or proving some fact

germane to the defendant’s prosecution.3

a) Solemnity

Thus, there would appear to be two components to a “testimonial”

statement. First, it must be made in solemn fashion. Crawford, 541

U.S. at 51, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364; Davis, 547 U.S.

at __, 165 L. Ed. 2d at 240, 126 S. Ct. at 2276 (quoting Crawford and

noting that “[t]he solemnity of even an oral declaration of relevant

3

Although the Court did not dwell overly long on this formulation in

Crawford, it does appear clear that the Court intended this discussion as a

textual analysis of the confrontation clause. See Crawford, 541 U.S. at 42-

43, 158 L. Ed. 2d at 187, 124 S. Ct. at 1359 (referring to above discussion

as an understanding of the meaning of the phrase “witnesses against”). The

importance of the discussion is further illustrated by the fact that the Court

repeatedly returned to this definition and its two components in its

subsequent discussions of “testimonial.” See generally Davis, 547 U.S. __,

165 L. Ed. 2d 224, 126 S. Ct. 2266.

-27-

past fact to an investigating officer is well enough established by the

severe consequences that can attend a deliberate falsehood”). In fact,

the requirement of solemnity is a matter with regard to which the

Davis majority and dissent were in agreement. See Davis, 547 U.S.

at __, 165 L. Ed. 2d at 246, 126 S. Ct. at 2282 (Thomas, J.,

concurring in the judgment and dissenting in part) (“the plain terms

of the ‘testimony’ definition we endorsed [in Crawford] necessarily

require some degree of solemnity before a statement can be deemed

‘testimonial’ ”). The majority and dissent differed on whether the

statements at issue in that case satisfied the solemnity requirement,

with the majority reasoning that solemnity was established by the

potential “severe consequences” of lying to a police officer (Davis,

547 U.S. at __, 165 L. Ed. 2d at 240, 126 S. Ct. at 2276), whereas the

dissent would have required the statements to be made in a setting

with a higher degree of formality, possibly only if Miranda warnings

had been issued (Davis, 547 U.S. at __, 165 L. Ed. 2d at 246-47, 126

S. Ct. at 2282-83 (Thomas, J., concurring in the judgment and

dissenting in part)).

b) Intended to Establish a Particular Fact

The second requirement is that the statement must be intended to

establish a particular fact. With respect to this requirement, the focus

is on whether, at the time the statement was made, the witness was

acting in a manner analogous to a witness at trial, describing or giving

information regarding events which had previously occurred. See

Davis, 547 U.S. at __, 165 L. Ed. 2d at 237, 126 S. Ct. at 2273-74

(statements in response to police questioning are nontestimonial when

primary purpose of questioning is to “enable police assistance to meet

an ongoing emergency”; responses to police questions are testimonial

when “there is no such ongoing emergency, and [ ] the primary

purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution”); Davis, 547 U.S.

at __, 165 L. Ed. 2d at 242, 126 S. Ct. at 2278 (statements which,

after the fact, “deliberately recounted, in response to police

questioning, how potentially criminal past events began and

progressed,” are testimonial “because they do precisely what a

witness does on direct examination” (emphasis in original)).

-28-

1) Intent of Questioner vs. Intent of Declarant

Regarding this second prong, the parties differ on whose

perspective–whose “intent”–is dispositive. Defendant argues that a

statement is testimonial if it is elicited “for the primary purpose of

obtaining evidence with which to prosecute the offender.” In other

words, defendant would have us look to the perspective, the intent, of

the person eliciting the statement. The State, by contrast, urges us to

focus exclusively on the perspective of the declarant. In the State’s

view, the objective circumstances at the time that a testimonial

statement is given must be such that the declarant would reasonably

expect that his statements might be used in future judicial

proceedings–that he would recognize that he is, in effect, “bearing

witness” against the accused.

Each approach has its difficulties. Defendant’s exclusive focus on

the intent of the listener raises the obvious problem of statements

which were not “elicited.” For example, although in Crawford the

Court described the trial of Sir Walter Raleigh as one of the “most

notorious instances” of the type of abuse against which the

Confrontation Clause was designed to defend (Crawford, 541 U.S. at

44, 158 L. Ed. 2d at 188, 124 S. Ct. at 1360), Davis acknowledged

that Lord Cobham’s letter against Raleigh “was plainly not the result

of sustained questioning” (emphasis omitted) (Davis, 547 U.S. at __

n.1, 165 L. Ed. 2d at 237 n.1, 126 S. Ct. at 2274 n.1). The State’s

exclusive focus on the declarant’s intent, on the other hand, could

lend itself to abuse by the State, by increasing use of statements

gathered without the declarant’s knowledge–for instance undercover

interviews of witnesses.

a) Statements Produced Through Police Interrogation

Crawford and Davis have begun to map out the contours of

“whose intent matters.” Because both cases involved statements

produced by police interrogations, the matter is clearer in that context.

In Crawford, the Court stated that “Statements taken by police

officers in the course of interrogations are [] testimonial under even

a narrow standard.” Crawford, 541 U.S. at 52, 158 L. Ed. 2d at 193,

124 S. Ct. at 1364. This broad formulation is devoid of reference to

the intent of the declarant, which implies that rather than the

-29-

declarant’s intent, the police intent to obtain information for

prosecution is all that is relevant. In Davis, the Court explained that

this was precisely its meaning:

“When we said in Crawford [citation] that ‘interrogations by

law enforcement officers fall squarely within [the] class’ of

testimonial hearsay, we had immediately in mind (for that was

the case before us) interrogations solely directed at

establishing the facts of a past crime, in order to identify (or

provide evidence to convict) the perpetrator.” Davis, 547 U.S.

at __, 165 L. Ed. 2d at 239-40, 126 S. Ct. at 2276.

In Davis, the Court recognized that not all police interrogations were

for the purposes of gathering information for prosecution, however,

and modified the broad rule it announced in Crawford:

“Statements are nontestimonial when made in the course of

police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency. They

are testimonial when the circumstances objectively indicate

that there is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.”

Davis, 547 U.S. at __, 165 L. Ed. 2d at 237, 126 S. Ct. at

2273-74.

The Court also noted that police focus could potentially shift from

emergency assistance to future prosecution, such that during the

course of a given interrogation some statements in response to

questioning could be testimonial and others not. Davis, 547 U.S. at

__, 165 L. Ed. 2d at 241, 126 S. Ct. at 2277. See also In re T.T., 351

Ill. App. 3d 976, 992-93 (2004) (holding that child’s statements to

doctor for the purpose of medical diagnosis and treatment were

nontestimonial, but identification of attacker in same interview was

testimonial).

It is clear, therefore, that when the statements under consideration

are the product of questioning by the police (or those whose “acts

[are] acts of the police” (Davis, 547 U.S. at __ n.2, 165 L. Ed. 2d at

238 n.2, 126 S. Ct. at 2274 n.2)), we must focus on the intent of the

questioner in eliciting the statement. Moreover, our evaluation of that

-30-

intent must rely on objective circumstances, not testimony from the

officer as to his actual subjective intent. Davis, 547 U.S. at __, 165 L.

Ed. 2d at 237, 126 S. Ct. at 2273-74.

b) Suggested Requirement of Police Involvement

The Court has not yet had occasion to apply the confrontation

clause to statements other than those made in response to police

interrogation. Indeed, the Court left open the questions not only

“when” but “whether” statements made to persons other than law

enforcement personnel are “testimonial.” (Emphasis added.) Davis,

547 U.S. at __ n.2, 165 L. Ed. 2d at 238 n.2, 126 S. Ct. at 2274 n.2.

Stepping into the breach, the State argues that only statements

made to law enforcement personnel can be testimonial. In support of

its government-involvement requirement, the State points to

Crawford’s focus on the historical background of the confrontation

clause in determining the clause’s original meaning. Based on this

historical review, Crawford arrived at a narrow list of four “modern

practices with closest kinship to the abuses at which the

Confrontation Clause was directed.” Crawford, 541 U.S. at 68, 158

L. Ed. 2d at 203, 124 S. Ct. at 1374. These practices included: “prior

testimony at a preliminary hearing, before a grand jury, or at a former

trial; and *** police interrogations.” Crawford, 541 U.S. at 68, 158

L. Ed. 2d at 203, 124 S. Ct. at 1374. The State argues that a statement

is testimonial only “if it is produced by virtue of one of these ‘modern

practices,’ ” each of which features government involvement in the

production of a testimonial statement. In the State’s view, “statements

made to nongovernment officials simply cannot constitute

‘testimonial’ statements under the Crawford paradigm.” We disagree.

In listing the “modern practices” to which the State refers,

Crawford stated:

“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

preliminary hearing, before a grand jury, or at a former trial;

and to police interrogations. These are the modern practices

with closest kinship to the abuses at which the Confrontation

-31-

Clause was directed.” (Emphasis added.) Crawford, 541 U.S.

at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.

This passage clearly states that the term “testimonial” applies, at a

minimum, to these “modern practices.” By prefacing this assertion

with the phrase, “Whatever else the term covers,” the Court implies

that “testimonial” could include statements generated in ways other

than these “modern practices.” The State’s assertion that a testimonial

statement must have been produced by virtue of one of these practices

finds no support in this passage in Crawford.

Moreover, while there is language in Crawford emphasizing the

role of government officers in creating testimony, Crawford imposes

no per se rule that a testimonial statement must be made to a

government agent. R. Friedman, Grappling With the Meaning of

“Testimonial”, 71 Brook. L. Rev. 241, 262 (2005). Nor does Davis,

which specifically cautioned that the Court’s opinion ought not to be

read as implying that statements in the absence of police interrogation

are “necessarily nontestimonial.” Davis, 547 U.S. at __ n.1, 165 L.

Ed. 2d at 237 n.1, 126 S. Ct. at 2274 n.1.

Indeed, the trial of Sir Walter Raleigh suggests the opposite

conclusion. As previously noted, part of the evidence against Raleigh

was a letter by Lord Cobham, which “was plainly not the result of

sustained questioning.” (Emphasis omitted.) Davis, 547 U.S. at __

n.1, 165 L. Ed. 2d at 237 n.1, 126 S. Ct. at 2274 n.1. Nevertheless,

Crawford cited the Raleigh trial as a “notorious” example of the civil

law abuses against which the confrontation clause was directed

(Crawford, 541 U.S. at 44, 158 L. Ed. 2d at 188, 124 S. Ct. at 1360),

abuses characterized by the admission of “testimonial” out-of-court

statements as evidence against the accused, without benefit of cross-

examination.

There is an additional objection to the State’s requirement of

government involvement. The State’s argument relies heavily on the

premise that there is a strong historical basis for such a requirement.

But learned historians have described the theory that there must be

government involvement as “profoundly ahistorical.” R. Friedman &

B. McCormack, Dial-In Testimony, 150 U. Pa. L. Rev. 1171, 1248

(2002). In England, state prosecutors did not become the norm for

ordinary crime until the nineteenth century. Friedman, 71 Brook. L.

Rev. at 261. Prior to that time, most prosecutions were private

-32-

lawsuits. 150 U. Pa. L. Rev. at 1248. “Until the state assumed the

management of crime in the nineteenth century and professional

police forces took over the pursuit and apprehension of suspects, the

gathering of evidence, and the preparation of cases *** these matters

were left largely to the private initiative of the victim.” J.M. Beattie,

Crime and the Courts in England 1660-1800 35 (1986). And “the

right to confront was established long before [the nineteenth century];

indeed, in the sixteenth century Thomas Smith described the criminal

trial as an ‘altercation’ between accuser and accused.” Friedman, 71

Brook. L. Rev. at 261. Thus the State’s main argument in support of

its requirement of government involvement–that this requirement was

rooted in historical practice that predated the adoption of the sixth

amendment–has little basis in legal history.

Notwithstanding the foregoing, the State points to decisions

where, according to the State, the courts concluded that “statements

made to nongovernment officials simply cannot constitute

‘testimonial’ statements under the Crawford paradigm.” Many of

these decisions deal only cursorily with the issue of whether a

testimonial statement requires government involvement. These

decisions contain little, if any, analysis regarding this question, and

we find them unpersuasive.

A decision cited by the State that does contain some analysis of

this issue is United States v. Savoca, 335 F. Supp. 2d 385 (S.D.N.Y.

2004). There, a defendant sought to exclude statements given by his

codefendant to his live-in girlfriend. The court concluded that the

statements were not testimonial and therefore were not barred under

Crawford. The court cited several reasons for this conclusion, one of

which was that the statements were not made to a government

official. According to the court, Crawford was meant to apply only to

testimonial statements that were “made in the context of some

governmental action.” Savoca, 335 F. Supp. 2d at 392. The court

based this conclusion on the premise that all of the examples of

testimonial statements listed in Crawford were “made to an authority

figure in an authoritarian environment.” Savoca, 335 F. Supp. 2d at

393.

We disagree with Savoca’s premise and reasoning. First, even if

the premise were correct, and all of the examples did share the trait

the court observed, they were merely examples–the Court never stated

-33-

any governmental involvement requirement and indeed, in Davis,

made clear that it had not done so. See Davis, 547 U.S. at __ n.2, 165

L. Ed. 2d at 238 n.2, 126 S. Ct. at 2274 n.2 (“our holding today makes

it unnecessary to consider whether and when statements made to

someone other than law enforcement personnel are ‘testimonial’ ”).

Moreover, we disagree with Savoca’s premise that all of the examples

are statements “made to an authority figure in an authoritarian

environment” (Savoca, 335 F. Supp. 2d at 393), because one of the

examples was a simple affidavit. Surely, although some notaries

public might be “authority figures” they certainly are not all, nor do

they all work in environments which can fairly be described as

“authoritarian.” The universal rule Savoca sought to infer simply is

not there.

The Court has not as yet given any indication that testimonial

statements must be made to a government officer, and our own

review of the authorities and the historical background–specifically

Raleigh’s case–leads us to the conclusion that statements can be

testimonial even if not made directly to agents of the state.

c) Statements Made Outside of Police Interrogation

Accordingly, the question remains how to determine whether

statements are testimonial when they are made outside this context.

We believe that the only proper focus is on the declarant’s intent:

Would the objective circumstances have led a reasonable person to

conclude that their statement could be used against the defendant?

The Davis Court’s focus on the interrogator’s motive when the

statements are the product of police interrogation is not inconsistent

with focusing on the intent or motive of the declarant in other cases.

See, e.g., State v. Scachetti, 711 N.W.2d 508, 513 (Minn. 2006)

(central question is “ ‘whether either a declarant or a government

questioner is acting, to a substantial degree, in order to produce a

statement for trial’ ”), quoting State v. Bobadilla, 709 N.W.2d 243,

252 (Minn. 2006). Davis itself made clear that even with regards to

questions elicited in the course of a police interrogation, “it is in the

final analysis the declarant’s statements, not the interrogator’s

questions, that the Confrontation Clause requires us to evaluate.”

Davis, 547 U.S. at __ n.1, 165 L. Ed. 2d at 237 n.1, 126 S. Ct. at 2274

-34-

n.1. Moreover, it is important to remember that in Davis the Court

was dealing only with statements produced in response to police

questioning. The Court clearly left for another day any discussion of

rules for evaluating “whether and when statements made to someone

other than law enforcement personnel” (Davis, 547 U.S. at __ n.2,

165 L. Ed. 2d at 238 n.2, 126 S. Ct. at 2274 n.2) or statements “made

in the absence of any interrogation” (Davis, 547 U.S. at __ n.1, 165

L. Ed. 2d at 237 n.1, 126 S. Ct. at 2274 n.1) might be “testimonial.”

We believe that by focusing on the interrogator’s intent, the Court

was most likely acknowledging the reality that when a declarant is

supplying information in response to direct police questioning, the

declarant is rarely “in the driver’s seat.” Although ultimately it is the

declarant’s intent to which the confrontation clause looks, it is

governmental abuse against which the clause is designed to guard.

Thus, given that the ultimate question is whether the statement is

being made “ ‘for the purpose of establishing or proving some fact’ ”

(Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364,

quoting 1 N. Webster, An American Dictionary of the English

Language (1828)), like “what a witness does on direct examination”

(emphasis omitted) (Davis, 547 U.S. at __, 165 L. Ed. 2d at 242, 126

S. Ct. at 2278), it is the government’s motives that are paramount

when the government is directly involved in eliciting the statements

at issue. This does not determine the proper focus when evaluating

statements other than those produced by a government interrogation,

however.

Before Davis was decided, many authorities concluded that the

declarant’s intent was paramount in all evaluations of whether a

statement was testimonial. Authorities have noted that at least two of

the three proposed definitions of “testimonial” in Crawford focus on

the declarant’s perspective in giving the statement. See, e.g., M.

Raeder, Remember the Ladies and the Children Too: Crawford’s

Impact on Domestic Violence and Child Abuse Cases, 71 Brook. L.

Rev. 311, 318 (2005); cf. People v. Vigil, 127 P.3d 916, 925 (Colo.

2006) ( “the ‘common nucleus’ shared by the Supreme Court’s three

formulations of testimonial evidence [citation] centers upon the

declarant’s reasonable expectations”). The declarant-centered

approach is favored by Professor Richard Friedman of the University

of Michigan Law School, one of the scholars whose works Crawford

-35-

relied upon (see, e.g., Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 198,

124 S. Ct. at 1370) “in framing its re-definition of the Confrontation

Clause.” United States v. Cromer, 389 F.3d 662, 673 (6th Cir. 2004).

Friedman, who has been closely associated with the testimonial

approach to the confrontation clause (Cromer, 389 F.3d at 673),

argues in favor of a definition of “testimonial” based on the

declarant’s anticipation that the statement would likely be used in

prosecution. Friedman, 71 Brook. L. Rev. at 251-52, 255-59.

Friedman asserts: “To be testimonial, it must appear from the

perspective of the witness that the statement is transmitting

information that will, to a significant probability, be used in

prosecution.” Friedman, 71 Brook. L. Rev. at 259.

An earlier version of this definition was adopted by the Sixth

Circuit Court of Appeals in Cromer. After referring to pre-Crawford

work by Friedman, Cromer concluded that his proposed definition of

“testimonial” was “both well-reasoned and wholly consistent with the

purpose behind the Confrontation Clause.” Cromer, 389 F.3d at 674.

According to Cromer, the “proper inquiry” in a testimonial analysis

“is whether the declarant intends to bear testimony against the

accused.” Cromer, 389 F.3d at 675. This intent, Cromer held, “may

be determined by querying whether a reasonable person in the

declarant’s position would anticipate his statement being used against

the accused in investigating and prosecuting the crime.” Cromer, 389

F.3d at 675. See also Vigil, 127 P.3d at 925 (quoting favorably

Cromer’s explanation of this “proper inquiry”) (collecting cases).

We agree with Professor Friedman and the Cromer court that

outside of the context of statements produced in response to

government interrogation, it is the declarant’s perspective which is

paramount in a testimonial analysis.

1) Objective Manifestations vs. Subjective Intent

However, even in this context we believe Davis can offer some

guidance. There, the Court did not look to the actual subjective intent

of the police officer conducting the interrogation leading to the

statements in question. Rather, the Court clearly stated that the proper

inquiry is what “the circumstances objectively indicate” the purpose

of the interrogation to be. Davis, 547 U.S. at __, 165 L. Ed. 2d at 237,

-36-

126 S. Ct. at 2273-74. There is no reason to believe that the

applicability of the confrontation clause would depend on objective

manifestations of intent when the statement is the product of police

interrogation but would depend on actual subjective intent outside of

this context. Accordingly, in our view, the proper question is not

whether the declarant actually did intend or foresee that his statement

would be used in prosecution. Rather, the question is whether the

objective circumstances indicate that a reasonable person in the

declarant’s position would have anticipated that his statement likely

would be used in prosecution. See Cromer, 389 F.3d at 675;

Friedman, 71 Brook. L. Rev. at 252.

2) Child Declarants

The fact that the instant case involves a child declarant

complicates the issue, however. See Lagunas v. State, 187 S.W.3d

503, 519 (Tex. Ct. App. 2005) (“Courts around the nation have

struggled with the application of Crawford to child witnesses”).

Application of the objective approach to child witnesses raises the

question of whether the child’s age ought to be taken into account. In

other words, when we speak of an “objective person” in the

declarant’s position, does that mean an objective witness the same

age as the child, or an objective adult? There is authority for both

views. One case holding that age should not enter into the equation

is Sisavath, 118 Cal. App. 4th at 1402 n.3, 13 Cal. Rptr. 3d at 758 n.3

(rejecting the notion that “an ‘objective witness’ should be taken to

mean an objective witness in the same category of persons as the

actual witness–here, an objective four year old”). Citing Sisavath, the

Maryland Court of Appeals has also concluded that a child’s age

should not play a part in resolving whether a statement is testimonial.

See State v. Snowden, 385 Md. 64, 90-91, 867 A.2d 314, 329 (2005)

(concluding that “an objective test, using an objective person, rather

than an objective child of that age, is the appropriate test for

determining whether a statement is testimonial in nature”).

Both Snowden and Sisavath based their holdings on the important

rights of criminal defendants which the confrontation clause serves

to protect. However, the statements at issue in both cases were made

in response to structured questioning which was clearly intended to

produce testimony for trial. In Sisavath, for instance,

-37-

“[The interview] took place after a prosecution was initiated,

was attended by the prosecutor and the prosecutor’s

investigator, and was conducted by a person trained in

forensic interviewing. Under these circumstances, it does not

matter what the government’s actual intent was in setting up

the interview, where the interview took place, or who

employed the interviewer. It was eminently reasonable to

expect that the interview would be available for use at trial.”

Sisavath, 118 Cal. App. 4th at 1403, 13 Cal. Rptr. 3d at 758.

Similarly, in Snowden,

“[The interviewer’s] participation in this matter was

initiated, and conducted, as part of a formal law enforcement

investigation. The children were interviewed at the behest of

Detective Davey of the Montgomery County Police

Department, who was actively involved in the investigation.

***

*** Any argument as to the logistics or style of the

interviews blatantly disregards the undeniable fact that the

express purpose of bringing the children to the facility to be

interviewed was to develop their testimony for possible use at

trial.” (Emphasis added.) Snowden, 385 Md. at 84-85, 867

A.2d at 325-26.

Because both Snowden and Sisavath predated Davis, the courts

focused on the declarant’s intent in making the statements at issue

and believed that ignoring the declarant’s age was the only way to

protect the rights of the defendant. In the wake of Davis, however, the

“objective circumstances” of the statements at issue in those cases

would almost certainly lead courts to their being found testimonial

without looking to the declarant’s intent. Accordingly, we find

Sisavath and Snowden to be of minimal guidance. After Davis, the

means those courts chose–to disregard the age of the declarant–is no

longer required to achieve the end the courts sought to serve–to

protect the confrontation clause rights of defendants when police or

their proxies question child victims.

On the other hand, numerous courts have held that in the case of

a child’s statement, age is among the circumstances which are

relevant to evaluating whether the declarant would have reasonably

-38-

anticipated that his statement would be available for use at

subsequent trial. See, e.g., Scachetti, 711 N.W.2d at 514 (victim’s

statements in earlier case were not testimonial because “the three-

year-old victim was not acting to preserve testimony for trial because

children of that age are ‘simply unable to understand the legal system

and the consequences of statements made during the legal process’ ”),

quoting Bobadilla, 709 N.W.2d at 255-56; Vigil, 127 P.3d at 925 (“an

assessment of whether or not a reasonable person in the position of

the declarant would believe a statement would be available for use at

a later trial involves an analysis of the expectations of a reasonable

person in the position of the declarant. Expectations derive from

circumstances, and, among other circumstances, a person’s age is a

pertinent characteristic for analysis”); In re D.L., 2005–Ohio–2320,

¶20 (a child’s statements are testimonial under Crawford if “ ‘the

circumstances surrounding the contested statements led the three-

year-old to reasonably believe her disclosures would be available for

use at a later trial, or that the circumstances would lead a reasonable

child of her age to have that expectation’ [citation]”); Lagunas, 187

S.W.3d at 519 (holding that a child’s age and emotional state are

factors to be considered in determining whether her statements were

testimonial); State v. Brigman, 171 N.C. App. 305, 312-13, 615

S.E.2d 21, 25-26 (2005) (taking child’s age into account in

determining that her statements were nontestimonial).

In addition to the above authority, Professor Friedman has written

directly on the issue of child witnesses:

“the younger and less mature and understanding a child is, the

less likely her statement should be considered testimonial,

subject to the Confrontation Clause, and therefore, all other

things being equal, the more likely the statement should be

admitted. This conclusion, however, is really not paradoxical

at all. Even statements by very young children may be highly

probative. But very young children are not yet at a stage

where they can be expected to take the responsibility of being

a witness–the responsibility of speaking under oath, subject

to questioning by the accused, under the implicit injunction,

‘Look me in the eye and say that.’ With respect to very young

children–I will not try to say here just how young–we should

admit their statements for what they are worth, without

-39-

pretending that the children have the capacity to act like

adults.” (Emphasis omitted.) R. Friedman, The Conundrum of

Children, Confrontation, and Hearsay, 65 Law & Contemp.

Prob. 243, 251-52 (2002).

In accordance with the weight of authority, as well as Professor

Friedman’s analysis, we believe that the better view is to treat the

child’s age as one of the objective circumstances to be taken into

account in determining whether a reasonable person in his or her

circumstances would have understood that their statement would be

available for use at a later trial.

Like other courts which have considered the issue of what makes

a statement testimonial, we believe it would be fruitless to attempt to

provide an exhaustive list of factors which may potentially enter into

the “testimonial” calculus and the weight to be accorded them. See,

e.g., United States v. Summers, 414 F.3d 1287, 1302 (10th Cir. 2005);

T.T., 351 Ill. App. 3d at 991-92 (“Vague standards are manipulable,

and *** if the State could simply use the surrogate testimony of social

workers provided that certain formalities–like a scheduled interview

at a government office in a question-and-answer format–were absent,

then prosecutors would have less motivation to acclimate the child

witness to the courtroom setting”). As Crawford and Davis make

clear, this determination must be made on a case-by-case basis. Each

case must be resolved on its own merits, and a pertinent factor in one

case may not carry much weight in another. In this case, because the

parties differ on the issue of whether the age of a child declarant may

ever be taken into consideration, and because there is a divergence of

opinion on the topic amongst the courts of our sister states, we have

held that factor may be considered. This is not to say that age will

necessarily be determinative in every case. We have simply held that

it is among the circumstances potentially relevant to evaluating

whether the objective circumstances of the statement would have led

a reasonable declarant to understand that his or her statement could

be used in a subsequent prosecution of the defendant.

c. Application

We turn now to an examination of the hearsay statements at issue

in the case at bar to determine whether they are testimonial. As noted,

-40-

M.M.’s statements to three persons were admitted at trial. Those

individuals were Joan G., M.M.’s mother; Ann Grote, a nurse/clinical

specialist in charge of the child-abuse team at Hope Children’s

Hospital; and Perry Yates, the school social worker at Lawn Manor

Primary Center, where M.M. was in kindergarten in 1998-99. We first

review the circumstances under which the statements were made.

On January 13, 1999, Brenda Galete drove M.M. to Joan’s place

of employment. Galete went inside to get Joan, and told her that

M.M. was to be taken to the hospital. Joan went with Galete to the

car, sat next to to M.M., put her arm around her, and asked her what

was wrong. M.M. told Joan that “Bob had done something to her.”

During the drive to the hospital, M.M. described the incident of

sexual abuse. She also told Joan that her assailant had told M.M. he

would hurt her if she told her mother about what had happened.

When they arrived at Christ Hospital, Joan and M.M. went to the

emergency room. While they were there, Ann Grote, the clinical

specialist in charge of the hospital’s child-abuse team, came to the

emergency room and met Joan and M.M. The responsibilities of

Grote’s position were to receive all referrals regarding any type of

abuse, “whether it be physical or sexual abuse.” Because there was

potentially a two- to three-hour wait before M.M. could be examined,

Grote took Joan and M.M. to her office in another building where

Grote could speak to M.M., then bring M.M. back to the emergency

room so she could be examined.

Joan waited in a nearby area while Grote took M.M. into a

playroom that was connected to Grote’s office. Grote began her

interview with M.M. by asking her why she had come to the hospital.

M.M. said “she was there because of what Bob had done to her.”

M.M. described for Grote the incident of sexual abuse that she had

previously described to her mother. M.M. told Grote that she “didn’t

want to do it” but that Bob “made her do it.” M.M. added that she

“didn’t like” Bob and she was “mad[ ] at him.” At the conclusion of

this interview, Grote took Joan and M.M. back to the emergency

room, where M.M. was then examined by a doctor. After bringing

M.M. back to the emergency room, Grote informed Joan that she

would file a report, contact the police, and verify that the Department

of Children and Family Services was notified.

-41-

The next day, January 14, 1999, Perry Yates, the social worker at

M.M.’s school, received a telephone call from Joan G. Yates testified

that the information Joan gave him “put [him] in a position where

[he] had to make a mandated report based on the information that the

mother had given [him].” Yates testified that he “had a legal

obligation to check it out.” Yates received Joan’s permission to speak

to M.M. individually, and he brought M.M. to his office, where he

interviewed her. Yates began the interview by asking M.M., “[W]hat

can you tell me about Robert Stechly[?]” M.M. then described

essentially the same incident of sexual abuse that she had recounted

for Grote and her mother.

Later that same day, at about 3 p.m., M.M. returned to the hospital

for another interview with Grote. This interview was observed by an

assistant State’s Attorney and two police officers, who were seated

behind a one-way mirror. Grote began the interview by asking M.M.

if she could remember why she had come to the hospital the previous

day. M.M. “said she could remember[;] it was because of what Bob

had done to her.” M.M. again described the incident of sexual abuse.

At trial, Grote was asked if M.M. told her how she felt at the time of

the incident. Grote stated: “She said she was mad, she said that she

didn’t like it, she didn’t want to do it, but he told her she had to.” At

Grote’s suggestion, M.M. took two anatomically correct dolls,

undressed the male doll, and demonstrated the actions she had told

Grote that defendant had forced her to perform.

We will begin with the clearest case: M.M.’s second conversation

with Grote. At this time M.M. had already told Grote what happened.

Based on what she had heard, Grote contacted the police department,

and then conducted a second interview to review the same facts for

the benefit of two police officers standing hidden behind a one-way

mirror. The objective circumstances leave no room for doubt that at

this time Grote was acting on behalf of the police in order to gather

information for possible prosecution. Under Davis, this was

unquestionably a testimonial statement.

We believe that M.M.’s first conversation with Grote and her

conversation with Yates were also testimonial statements under

Davis. Both Grote and Yates conducted their interviews of M.M. after

Joan apprised them of some of what M.M. had told her–in other

words, once they were aware that abuse may have occurred. Although

-42-

Grote was a registered nurse, nothing in the record indicates that she

conducted the first interview for purposes of treatment in this case.

Grote did testify that one of her responsibilities was making sure that

the appropriate follow-up medical procedures took place with the

alleged child abuse victims in the hospital, but she also testified that

in this case she told Joan after the first interview only that she would

be notifying “the appropriate authorities,” i.e., the Department of

Children and Family Services and the police. Grote testified further

that after the second interview, she did not know what happened with

M.M., because her “piece was done.” Yates testified that he only

initiated the conversation because what Joan told him led him to

conclude that he “had to make a mandated report” and “had a legal

obligation to check it out.” The record does not reflect any action by

either Grote or Yates subsequent to their interviews other than

informing the Department and/or the police of what they had learned.

We believe that the objective circumstances indicate that the primary

purpose of these interviews was to gather information for purposes of

an investigation and possible prosecution of criminal conduct.

We do not hold that any person who conducts an interview in

order to gather information for a possible future prosecution is

necessarily acting as an “agent of law enforcement” at the time, such

that his acts may be said to be “acts of the police.” In this case,

however, we believe that Grote and Yates were so acting. It is

significant that in this case neither Grote nor Yates appears to have

taken any action as a result of their interviews of M.M. other than

contacting the authorities–the Department of Children and Family

Services, law enforcement, or both. Their interviews appear to have

been for the sole purpose of gathering information in order to pass it

along to the authorities.

Our conclusion is supported by the fact that at the time of their

interviews of M.M., Grote and Yates were both “mandated reporters.”

See 325 ILCS 5/4 (West 2000) (mandated reporters include, inter

alia, any “hospital administrator and personnel engaged in

examination, care and treatment of persons,” “school personnel,”

“registered nurse,” and “social worker”). This means that by virtue of

their positions, they both had a legal obligation, under penalty of

criminal law, to report to the Department of Children and Family

Services once they had reasonable cause to believe that a child known

-43-

to them in their professional capacity was abused or neglected. 325

ILCS 5/4 (West 2000). Mandated reporters are required to “testify

fully in any judicial proceeding resulting from such report, as to any

evidence of abuse or neglect, or the cause thereof.” 325 ILCS 5/10

(West 2000). Moreover, the Department is required, “to the fullest

extent possible,” to

“cooperate with and *** seek the cooperation and

involvement of all appropriate public and private agencies,

including *** law enforcement agencies, [and] courts of

competent jurisdiction ***.” 325 ILCS 5/7.1 (West 2000).

Thus, by virtue of their status as mandated reporters both Yates and

Grote were legally required to report to the Department and then to

testify, and the Department itself was also required to cooperate with

law enforcement. These facts substantially buttress our conclusion

that in this case, in conducting their interviews of the victim M.M.,

Grote and Yates were acting as agents of law enforcement for

purposes of confrontation clause analysis. See T.T., 351 Ill. App. 3d

at 989-91 (taking into account statutes governing mandated reporters

in holding that child’s statement to social worker was testimonial for

purposes of confrontation clause analysis). We are not holding that

every mandated reporter acts as an agent of law enforcement in every

interview, but merely that Grote’s and Yates’ status as mandated

reporters supports our conclusion in this case based on the fact that

their actions appear to have had no other purpose than to obtain

information to pass on to the authorities.

However, M.M.’s statement to her mother is of a different nature.

First, Joan was not acting as an agent of law enforcement. According

to Joan’s testimony, at the time this statement was made, Joan had

only been told that her daughter needed to go to the hospital. Joan

immediately left work and was sitting next to M.M. in the backseat

of the car on the way there. When Joan asked M.M. “what happened,”

she surely would only have feared hearing how her child had been

injured. Nothing suggests that Joan would have had any hint that

M.M.’s response would recount a criminal act. Even assuming that

Galete’s contrary version of events was true, and that Galete did tell

Joan of M.M.’s allegation of abuse before the ride to the hospital, we

believe Joan’s primary motivation was simple parental concern. On

-44-

the facts of this case, Joan was in no way acting on behalf of law

enforcement, attempting to gather evidence for a future prosecution.

Accordingly, we must look at the statement from the perspective

of M.M., the declarant. M.M. was five years old. She was sitting next

to her mother in the backseat of a car on a ride to a hospital. Her

mother asked her what had happened. From M.M.’s perspective, she

was explaining to her mother the reason for the trip to the hospital.

We see nothing in these circumstances to support the conclusion that

an objective declarant in M.M.’s position would have anticipated that

her statement to her mother likely would be used in prosecution. We

note that it is also debatable whether M.M.’s statement in this context

was infused with sufficient solemnity to be deemed testimonial. See

Davis, 547 U.S. at __, 165 L. Ed. 2d at 240, 126 S. Ct. at 2276;

Davis, 547 U.S. at __, 165 L. Ed. 2d at 246-47, 126 S. Ct. at 2282-83

(Thomas, J., concurring in the judgment and dissenting in part).

Accordingly, M.M.’s two statements to Grote and her statement

to Yates were testimonial. Because defendant had no prior

opportunity to cross-examine M.M. with regard to these statements,

their admission was a violation of the confrontation clause under

Crawford. M.M.’s hearsay statement to her mother, on the other

hand, was not testimonial. Accordingly, the admission of this

statement was not error under Crawford.

We feel compelled once more to note the limited extent of our

holding. We do not conclude in this case that statements made to

family members can never be testimonial, nor that statements given

to social workers or medical personnel or other mandated reporters

are always testimonial. Instead, we decide merely that, under the

circumstances in this case, M.M.’s hearsay statements to Grote and

Yates were testimonial, and her statement to her mother was not.

The State protests that neither Grote nor Yates, the school social

worker, functions as “an arm of the prosecution” merely because they

are mandated reporters, and calls our attention to In re C.J., 166 Ill.

2d 264 (1995). The State argues that we there clearly held that

Department employees are not state agents simply because they are

required to investigate suspected abuse and neglect. The State calls

our attention to the specific statement that we “reject out of hand any

notion that [Department] child protective service investigators,

simply by virtue of their mandate to investigate reports of suspected

-45-

child abuse and neglect, are a prosecutorial arm of the State.” C.J.,

166 Ill. 2d at 269.

The case is distinguishable. First, in this case, we have not found

Grote and Yates to have been acting on behalf of law enforcement

merely based on their status as mandated reporters. Our conclusion is

instead based primarily on the circumstances surrounding the

statements they took from M.M., especially the fact that they appear

to have done nothing as a result of taking those statements other than

contacting the authorities. The fact that they are mandated reporters

merely buttresses our conclusion. Moreover, C.J. was an appeal from

a circuit court ruling dismissing a delinquency petition because a

Department investigator had destroyed potentially exculpatory

material. We held it would be entirely unfair to impute responsibility

for the destroyed evidence to the State’s Attorney, especially in light

of the fact that there was “no evidence to support the conclusion that

the [Department] investigator here functioned, intentionally or

otherwise, as an aid in the prosecution of this case.” C.J., 166 Ill. 2d

at 270. The situation here is different–in this case the question is

whether it is fair for a criminal defendant to be tried based on hearsay

statements without the opportunity to confront the declarant, when the

persons taking the statements took no action other than to pass them

on to the authorities, and moreover the persons taking the statements

had a legal obligation to transmit them to the Department (325 ILCS

5/4 (West 2000)) and subsequently to testify in any case arising

therefrom (325 ILCS 5/10 (West 2000)), and the Department had a

legal obligation to cooperate with law enforcement agencies to the

fullest extent possible (325 ILCS 5/7.1 (West 2000)). In addition to

the statement from C.J. to which the State draws our attention, we

also said in that case that “where DCFS acts at the behest of and in

tandem with the State’s Attorney, with the intent and purpose of

assisting in the prosecutorial effort, DCFS functions as an agent of

the prosecution.” (Emphasis added.) C.J., 166 Ill. 2d at 270, citing

People v. Robinson, 157 Ill. 2d 68 (1993) (imputation of such

knowledge requires an individualized focus on the factual

circumstances). We do not believe that the framers intended to permit

the government to evade the requirements of the confrontation clause

by the simple expedient of placing responsibility for investigation

-46-

with a separate agency of government with a legal responsibility to

cooperate with law enforcement.

The State also argues that, if the statements at issue in the case at

bar are deemed testimonial, the admission of these statements was

harmless beyond a reasonable doubt. We disagree.

Crawford violations are subject to harmless-error analysis.

People v. Patterson, 217 Ill. 2d 407 (2005). The test is whether it

appears beyond a reasonable doubt that the error at issue did not

contribute to the verdict obtained. Patterson, 217 Ill. 2d at 428. There

are

“three different approaches for measuring error under this

harmless-constitutional-error test: (1) focusing on the error to

determine whether it might have contributed to the

conviction, (2) examining the other evidence in the case to see

if overwhelming evidence supports the conviction, and (3)

determining whether the improperly admitted evidence is

merely cumulative or duplicates properly admitted evidence.”

Patterson, 217 Ill. 2d at 428, citing People v. Wilkerson, 87

Ill. 2d 151, 157 (1981).

Under none of the three approaches can the error in this case be

considered harmless. The evidence in question consists of several

adults who were unacquainted or only slightly acquainted with M.M.

testifying as to her out-of-court statements regarding the precise

conduct at issue. The statements were quite clear and were relatively

consistent with each other and with the statement M.M. made to her

mother. This was strong evidence which a fact finder would surely

have taken into account. As we have noted, “[t]he statements of a

victim identifying her attacker and describing the attack are extremely

powerful evidence of a defendant’s guilt. It would be difficult to

argue that such statements did not contribute to [a guilty] verdict.”

Patterson, 217 Ill. 2d at 436. Nor is it fair to characterize the

improperly admitted evidence as “merely cumulative” of Joan’s

testimony. It is true that M.M.’s two statements to Grote and

statement to Yates were substantially similar to her statement to Joan.

However, the fact that the testimony was coming from adults who had

no personal stake in the matter at hand, no acquaintance with Joan or

defendant, and little or no acquaintance with M.M., and the strong

similarity of the statements, gave them a power beyond simple

-47-

duplication of Joan’s testimony as to what her daughter told her.

Additionally, both Grote and Yates testified as to M.M.’s

demonstration of the conduct at issue through the use of dolls,

another fact reinforcing the believability of those statements and

distinguishing them from M.M.’s statement to Joan. Moreover, and

especially critically, the conversation between M.M. and Yates began

with Yates simply asking M.M. what she could tell him “about

Robert Stechly.” That M.M. recounted the events in question in

response to a generic query about the defendant is crucial evidence.

The defense at trial was not that there was a question whether M.M.

was the victim of abuse–defendant’s expert agreed that she most

likely was–but that there was a reasonable doubt as to the identity of

her abuser. The improperly admitted statements cannot fairly be

considered to be merely duplicative of properly admitted evidence.

This leaves the question whether the properly admitted evidence

in the case constitutes “overwhelming evidence support[ing] the

conviction,” the sole remaining way in which this testimony might be

found not to have contributed to the finding of guilt, and therefore be

deemed harmless. Here we part company with the dissent. The dissent

would find the error harmless because the properly admitted

evidence, specifically the testimony of Joan, the testimony of Grote,

and defendant’s confession, is overwhelming. The dissent relies

principally on defendant’s statement to the police as well as Joan’s

testimony that in the car on the way to the hospital M.M. told her that

“Robert Stechly” was the person who abused her. The dissent also

notes that the abuse was described nearly identically in Galete’s and

Joan’s trial testimony regarding what M.M. told them and in

defendant’s statement to the police. Examination of the record reveals

some troubling inconsistencies in this evidence, however, which lead

us to conclude that the evidence was not so overwhelming as to

render it clear beyond a reasonable doubt that the constitutional error

was harmless.

For example, although M.M.’s description of the abuse to Galete

was very similar to what the child told her mother, there is a reason

that Galete was a witness for the defense, rather than for the

prosecution. Specifically, Galete testified that Bob Reilly, the victim’s

cousin, frequently babysat the victim, contradicting Joan’s testimony

that he never did so. Galete testified that M.M. only identified the

-48-

abuser as “Bob,” and Galete further testified that she had informed

the police that she believed that people other than defendant,

including Joan, the child’s mother, had sexually assaulted her. Thus

not only did Galete directly contradict Joan’s testimony on the key

point of whether Bob Reilly had babysat M.M.–Joan testified that he

had never done so–Galete also implicitly made clear that she believed

that M.M. had not told the complete truth about her abuse.

Moreover, although Joan testified that on the date that the victim

was taken to the hospital Galete refused to tell her what was wrong,

Galete testified that she did tell Joan that the victim had been sexually

molested and that Joan “really didn’t show any feeling in response.”

Finally, Galete testified that she did not hear any conversation

between the victim and her mother in the car on the way to the

hospital. Although she admitted that she was in the front seat and the

victim and her mother were in the back, this does call into question

the foundation of one of the primary pieces of competent evidence on

which the dissent relies, namely, Joan’s testimony regarding her

conversation with M.M. on the way to the hospital. Galete’s father,

who was driving the car to the hospital, also testified that he heard no

conversation between Joan and M.M. Galete’s testimony that she did

tell Joan about the abuse before they drove M.M. to the hospital is

also supported by the testimony of Grote. Grote testified that when

M.M. was brought to the hospital Joan recounted that M.M. had told

Galete about having been abused. Grote testified that Joan did not tell

her that M.M. had directly spoken to Joan about the matter, even

though that conversation in the car would have occurred only minutes

before. Joan never told Grote that she had spoken with M.M. in the

car.

Moreover, Joan’s testimony that M.M. identified her assailant as

“Robert Stechly”–using not only defendant’s last name, but his full

first name–was in direct conflict with Joan’s testimony at the section

115–10 hearing. There, Joan testified only that the child told her

“Bob” had assaulted her. Joan testified four separate times on direct

examination as to what M.M. told her “Bob” had done, and on cross-

examination, engaged in the following exchange:

“Q. [defense counsel:] Now, in the car when you were on

the way to the hospital, she told you what had happened,

details of the incident?

-49-

A. Yes.

Q. Did she tell you who?

A. She told me in the back of the car that day.

Q. Who it was?

A. Who did that, yes.

Q. Who had sexual contact?

A. Yes.

Q. And she said Bob?

A. Yes.

Q. And you understood that to be Bob Stechly?

A. Yes sir.” (Emphases added.)

This calls into serious question Joan’s trial testimony that the child

referred to defendant by his full first and last names. In this regard it

is also noteworthy that no other witness ever testified that the child

used defendant’s full name, even though it would arguably have been

more logical for the child to identify her assailant by his full name to

a stranger, rather than to her mother, who was the defendant’s

girlfriend.

Defendant’s confession, it is true, is surely strong evidence

against him. However, at trial, defendant recanted his confession,

claiming that he only made it because he was tired and believed that

the truth would later come out. He introduced expert testimony to the

effect that he was unable to understand his Miranda rights. In

argument at defendant’s bench trial, defense counsel noted, “I think,

if you listen to him on the stand, he does have, how should I say, he

does suffer from a mental disability, unfortunately.” The members of

this court are, of course, wholly unable to evaluate the accuracy of

this description, as we were not present at defendant’s trial to observe

his demeanor, but we note that the State did not dispute this

characterization in its argument in response.

The dissent implies a great deal of skepticism for defendant’s

recantation, but whether or not we personally find the recantation

believable on the cold record before us is not the question we must

answer, as we are not members of defendant’s jury. The question

before us is: Was the properly admitted evidence against

defendant–consisting primarily of his confession, and the testimony

-50-

of the mother and Galete–such compelling and overwhelming

evidence of guilt that it is clear beyond a reasonable doubt that the

improperly admitted evidence made no difference to the fact finder?

That evidence being the testimony of impartial, neutral adults that the

child told the exact same story as she told her mother three more

times, demonstrating the conduct at issue with dolls–and that one of

these recountings of what transpired was in response to the general

question “what can you tell me about Robert Stechly”?

We must answer this question in the negative. The child’s

consistent repetition of the story strongly reinforced its believability.

This reinforcement could easily have overridden any doubt which

might have arisen in light of the significant conflicts and

inconsistencies between Galete’s testimony, the testimony of the

victim’s mother, and defendant’s confession. The fact that M.M.’s

statement to Yates was the product of a generic inquiry regarding

defendant is evidence that it would be truly impossible for a fact

finder not to have taken into account in this trial which turned on the

identity of M.M.’s abuser. We cannot conclude that the properly

admitted evidence was so overwhelmingly in favor of guilt that it is

clear beyond a reasonable doubt that the child’s repetition of the story

on three separate occasions played no part in the fact finder’s

conclusion.

Our conclusion that the evidence against defendant was not

overwhelming is buttressed by the fact that the jurors at defendant’s

first trial were unable to agree on a verdict. See People v. Gibson,

136 Ill. 2d 362, 382-83 (1990) (“The jurors at the defendant’s first

trial were unable to agree on a verdict in the case, and the resulting

mistrial illustrates fully the closeness of the evidence in the case”).

The dissent argues that it is inappropriate to consider the fact that

defendant’s jury was unable to reach a verdict, suggesting that to do

so is equivalent to the approach taken by the appellate court in People

v. Nitz, 219 Ill. 2d 400 (2006). The situation in Nitz is not even

remotely similar to the case at bar. There, the appellate court analyzed

a jury’s mix of guilty and not-guilty verdicts and “speculated” as to

how the jury might have ruled on a question with which it was not

presented after “purporting to read the minds of the trial jurors.” Nitz,

219 Ill. 2d at 413-14. Here, by contrast, we are making the entirely

unremarkable assertion that the fact that a jury of defendant’s peers

-51-

was unable to reach a verdict as to his guilt tends to show that the

evidence against him was not utterly overwhelming. This fact is

especially pertinent in light of the fact that the jury heard and took

into account the strong and compelling evidence that we have now

concluded was improperly admitted. Even with that evidence before

it, the jury could not reach a verdict. Thus, it is a fair inference that

the properly admitted evidence may not have been entirely

overwhelming. Nor does the riposte that the circuit court was able to

reach a finding carry much weight, in light of the fact that like the

jury, the court had before it and considered the evidence we have now

found inadmissible. In this case it would be inappropriate to apply the

presumption that in a bench trial judges base their findings only on

competent evidence (People v. Todd, 178 Ill. 2d 297, 330 (1997);

People v. Tye, 141 Ill. 2d 1, 26 (1990)), in light of the fact that at the

time of defendant’s trial, Crawford had not yet been decided and thus

the statements to Grote and Yates were competent, admissible

evidence so far as the trial judge knew.

We cannot conclude beyond a reasonable doubt that the

admission of these hearsay statements did not contribute to the

finding obtained. The properly admitted evidence was certainly

sufficient to sustain defendant’s conviction, however, so there is no

double jeopardy bar to retrying defendant on these charges. People v.

Daniels, 187 Ill. 2d 301, 310 (1999). If the evidence is as

overwhelming as the dissent believes, defendant will very likely be

convicted once again. Moreover, defendant’s convictions may be

upheld without a retrial if on remand the circuit court concludes that

defendant lost his confrontation rights pursuant to the doctrine of

forfeiture by wrongdoing. But unless that doctrine is applicable, the

admission of these statements was error of sufficient severity as to

defy a characterization of harmlessness.

Accordingly, we remand to the circuit court for a hearing on

forfeiture by wrongdoing. In this hearing, the State’s burden of proof

is a preponderance of the evidence. See Davis, 547 U.S. at ___, 165

L. Ed. 2d at 244, 126 S. Ct. at 2280 (and authorities cited therein).

The circuit court may take into consideration “ ‘hearsay evidence,

including the unavailable witness’s out-of-court statements.’ ” Davis,

547 U.S. at __, 165 L. Ed. 2d at 244, 126 S. Ct. at 2280, quoting

Edwards, 444 Mass. at 545, 830 N.E.2d at 174. The question is

-52-

whether defendant sought “to undermine the judicial process by

procuring or coercing silence from” M.M. Davis, 547 U.S. at __, 165

L. Ed. 2d at 244, 126 S. Ct. at 2280. If the court concludes that

defendant did forfeit his confrontation clause claim by wrongdoing,

then the conviction and sentence may be reinstated; otherwise,

defendant must receive a new trial. At that trial, the statements to

Yates and Grote must be excluded from evidence unless M.M.

testifies.

II. Section 115–10

Having concluded that M.M.’s hearsay statement to her mother is

not testimonial, we must address defendant’s argument that this

statement did not meet the requirements of section 115–10 of the

Code of Criminal Procedure (725 ILCS 5/115–10 (West 1998)),

which is the statutory hearsay exception for sexual abuse victims

under the age of 13. Under section 115–10, a child’s out-of-court

complaints of a sexual offense may be admitted if (1) the time,

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

corroborating evidence of the act which is the subject of the

statement. In the case at bar, the trial court found that the time,

content, and circumstances of M.M.’s hearsay statements, including

her statement to her mother, provided sufficient safeguards of

reliability to be admissible. The trial court also found that M.M. was

legally unavailable for trial.

Before this court, defendant argues that the State failed to meet its

burden of establishing the reliability of M.M.’s hearsay statements,

and the circuit court therefore erred in admitting these statements.

Defendant also argues that the circuit court erred in declaring M.M.

unavailable to testify. The appellate court below affirmed the circuit

court’s findings as to reliability and availability. We agree with the

appellate court that, with regard to M.M.’s statement to her mother,

the reliability and unavailability requirements of section 115–10 were

met. A trial court’s rulings on evidentiary matters will not be reversed

absent a clear abuse of discretion. People v. Hall, 195 Ill. 2d 1, 20-21

(2000). Fear and youth are factors to be considered in determining

whether a child witness is unavailable. T.T., 351 Ill. App. 3d at 984.

-53-

Reliability is judged based on the totality of the circumstances

(Wright, 497 U.S. at 819-20, 111 L. Ed. 2d at 654-55, 110 S. Ct. at

3148-49), but relevant factors include consistent repetition, use of

terminology unexpected of a child of similar age, and lack of motive

to fabricate. People v. McMillan, 231 Ill. App. 3d 1022, 1026 (1992).

There was ample evidence supporting the circuit court’s rulings

regarding reliability and unavailability, and we find no abuse of

discretion in the circuit court’s ruling admitting M.M.’s statement

under section 115–10.

The partial concurrence argues that the circuit court abused its

discretion in finding M.M. unavailable, relying on People v. Johnson,

118 Ill. 2d 501 (1987). That case is distinguishable in critical respects.

First, Johnson involved only Supreme Court Rule 414, a rule of

general application to all criminal cases. In contrast, section 115–10

deals specifically with “the difficulty in convicting persons accused

of sexually assaulting young children.” People v. Holloway, 177 Ill.

2d 1, 9 (1997). The Johnson court expressly limited its holding

importing the standards of Federal Rule 804 to proceedings involving

Rule 414: “the mere unwillingness of an otherwise available witness

to testify simply does not rise to the high level of the Federal Rule

804 standards. Hence, it cannot constitute excusable unavailability for

purposes of our Rule 414.” (Emphasis omitted and added.) Johnson,

118 Ill. 2d at 509-10. Neither Johnson, nor either of the post-Johnson

cases on which the partial concurrence relies, involved section

115–10. See People v. Caffey, 205 Ill. 2d 52, 100-01 (2001) (adult

witness asserting privilege); People v. Ramey, 152 Ill. 2d 41, 70-73

(1992) (adult witness asserting lack of memory). This court has never

invoked Federal Rule of Evidence 804 or relied on Johnson in

reviewing the admission of statements pursuant to section 115–10.

Indeed, Johnson could not have been intended to apply to statements

admitted pursuant to section 115–10 because at the time Johnson was

decided, section 115–10 did not permit introduction of the out-of-

court statement of an “unavailable” child witness. People v. Rocha,

191 Ill. App. 3d 529, 537 (1989).

Moreover, this court in Johnson invited legislative action to

address reluctant child witnesses, thus suggesting that a specific

statute to address that situation might merit a different result:

-54-

“[W]e feel compelled to acknowledge the special

difficulties presented by cases such as these, where the

witness in question is a young child whose fear and reticence

is probably nonvolitional and hence understandable.

However, it is our view that any attempts to resolve these

difficulties must be initiated by the legislature.” Johnson, 118

Ill. 2d at 510.

As our appellate court has noted, the amendment to section 115–10

to permit the introduction of children’s out-of-court statements when

the child is unavailable appears to be precisely the legislative

resolution for which this court called in Johnson. Rocha, 191 Ill. App.

3d at 537. In cases involving section 115–10, our appellate court has

declined to apply the broad Johnson holding that unwillingness can

never constitute unavailability. See, e.g., People v. Coleman, 205 Ill.

App. 3d 567, 582-83 (1990); Rocha, 191 Ill. App. 3d at 536-37. This

holding finds support in decisions of this court which have

distinguished section 115–10 from other, analogous statutes. See

People v. Bowen, 183 Ill. 2d 103, 114 (1998) (“Bastien is not

dispositive of this case, because of fundamental differences in both

the provisions and purposes of section 115–10 and former section

106A–2”). In the context of child witnesses, numerous other

jurisdictions have concluded that unwillingness or inability to testify

should constitute unavailability. See Rocha, 191 Ill. App. 3d at 537-

38, and cases cited therein. Our appellate court has concluded that by

the amendment to section 115–10 the legislature intended “to include

within the meaning of ‘unavailable’ witnesses those children who are

unable to testify because of fear, inability to communicate in the

courtroom setting, or incompetence.” Rocha, 191 Ill. App. 3d at 539.

See also T.T., 351 Ill. App. 3d at 984. We agree with these opinions.

Notwithstanding our holding in Johnson that unwillingness to testify

cannot constitute unavailability to testify for purposes of Rule 414,

we believe that in the separate specific context of section 115–10,

unavailability includes those child witnesses who are unable to testify

because of fear.

The circuit court should not make an unavailability determination

lightly, of course, but that brings us to the second critical difference

between this case and Johnson. There, the circuit court received no

expert testimony or evidence as to the child’s unavailability. Indeed,

the circuit court never even made a finding that the children were

-55-

unavailable to testify. In the instant case, by contrast, Machonkin

testified as an expert witness at the availability hearing. She stated

that in her professional opinion, forcing M.M. to testify would inflict

upon her “trauma symptoms.” It is true that Machonkin

acknowledged that there were steps the court could take to attempt to

decrease the likelihood that the child would suffer psychological

harm. However, she stated that it could take up to a year for such

techniques to work and they might never work, a distinct possibility

in light of the fact that Machonkin herself had never been able to

persuade the victim to discuss what had happened.

Under these circumstances, we cannot find the circuit court to

have abused its discretion in finding M.M. unavailable to testify.

CONCLUSION

We agree with the appellate court that the circuit court’s decision

that M.M.’s hearsay statement to her mother was admissible under

section 115–10. However, we disagree with the appellate court that

the circuit court properly found M.M.’s hearsay statements to Grote

and Yates were admissible. Because the admission of the statements

to Grote and Yates was not harmless error, we reverse the appellate

court’s judgment affirming defendant’s conviction and sentence. This

cause is remanded to the circuit court for a hearing on the issue of

forfeiture by wrongdoing and for further proceedings in conformity

with this opinion.

Appellate court judgment reversed;

cause remanded with directions.

JUSTICE KILBRIDE, concurring in part and dissenting in part:

In my opinion, the statutory hearsay exception contained in

section 115–10 of the Code of Criminal Procedure of 1963 (725 ILCS

5/115–10 (West 1998)), was not satisfied because the evidence

presented at the hearing did not establish that M.M. was unavailable

to testify. M.M.’s hearsay statements should have been excluded on

that basis.

Moreover, in addressing the confrontation clause claim, I believe

the plurality applies an incorrect standard for determining whether an

-56-

out-of-court statement by a child declarant is testimonial. I would

hold that the critical inquiry in determining whether a statement is

testimonial is whether a reasonable adult in the declarant’s position

would have anticipated that his or her statement likely would be used

in a criminal prosecution. A reasonable adult in M.M.’s position

would have believed her statements to her mother, the registered

nurse, and the school social worker identifying defendant as the

perpetrator would be used in a prosecution against defendant. Thus,

M.M.’s statements to each of those people were testimonial and

should not have been admitted without satisfying the requirements of

the confrontation clause.

In my view, the plurality’s analysis of both the section 115–10

issue and the confrontation clause claim is faulty. I, however, agree

with the plurality’s ultimate holding on the confrontation clause claim

that defendant’s convictions must be reversed and the cause

remanded for a hearing on forfeiture by wrongdoing. Accordingly, I

concur in the judgment with respect to the confrontation clause claim

and respectfully dissent on the section 115–10 issue.

I. Section 115–10

The threshold issue in this case is whether M.M.’s statements are

admissible under the statutory hearsay exception in section 115–10.

See People v. Lee, 214 Ill. 2d 476, 482 (2005) (courts should avoid

addressing a constitutional question if a case can be decided on other

grounds). Under section 115–10, a child’s out-of-court statements

concerning a sexual offense are admissible if: (1) there are sufficient

safeguards of reliability; and (2) the child either testifies or is

unavailable to testify and there is corroborating evidence of the act

that is the subject of the statement. 725 ILCS 5/115–10(b) (West

1998).

Here, the plurality has failed to apply this court’s established

precedent to the unavailability determination. This court’s decision

in People v. Johnson, 118 Ill. 2d 501 (1987), as well as subsequent

cases relying on Johnson, strongly support a finding that the circuit

court abused its discretion in finding M.M. unavailable to testify.

In Johnson, the defendant was charged with aggravated indecent

liberties with a child. The trial court ordered the testimony of the five-

year-old victim and her seven-year-old brother to be recorded on

-57-

videotape outside the presence of the jury. Johnson, 118 Ill. 2d at 505.

During her testimony, the victim became frightened and stopped

speaking. At that point, the trial court granted the State’s motion to

remove defendant from the courtroom during her testimony. Johnson,

118 Ill. 2d at 505. Defendant was allowed to view the testimony on

a video monitor outside the courtroom. Johnson, 118 Ill. 2d at 505.

After defendant was removed, the parties completed the direct, cross,

and redirect examination of the victim. Johnson, 118 Ill. 2d at 505.

The testimony of the victim’s brother was recorded outside the

presence of the jury, but with defendant present. Johnson, 118 Ill. 2d

at 506.

The appellate court held that the videotaping procedure was

authorized under Supreme Court Rules 414 and 206(f) (87 Ill. 2d Rs.

414, 206(f)). Johnson, 118 Ill. 2d at 507. Rule 414 allows the trial

court to order a deposition for use at trial in criminal cases when a

substantial possibility exists that the testimony will be “ ‘unavailable

at the time of hearing or trial.’ ” Johnson, 118 Ill. 2d 507, quoting 87

Ill. 2d R. 414(a). Thus, the critical issue in Johnson was whether the

children were “unavailable” to testify within the meaning of Rule

414. Johnson, 118 Ill. 2d at 508.

This court rejected the appellate court’s determination that the

children were unavailable to testify because the trial court believed

they would be fearful or unable to speak in front of the jury. Johnson,

118 Ill. 2d at 508. This court held that unavailability “is a narrow

concept, subject to a rigorous standard.” Johnson, 118 Ill. 2d at 509.

The court looked to Federal Rule of Evidence 804 for examples of

sufficient reasons for finding a witness unavailable. Under Federal

Rule 804, a witness may be declared unavailable due to privilege,

persistent contemptuous refusal to testify, lack of memory, death, or

illness. Johnson, 118 Ill. 2d at 509. Mere unwillingness or reluctance

to testify does not constitute excusable unavailability under Federal

Rule 804. Johnson, 118 Ill. 2d at 509. Therefore, this court held that

unwillingness to testify cannot be the basis for a finding of

unavailability under Supreme Court Rule 414. Johnson, 118 Ill. 2d at

509-10. This court concluded that “a witness’ mere reluctance to

testify cannot be accepted as a good enough reason to permit the use

of out-of-court testimony.” Johnson, 118 Ill. 2d at 510.

Subsequent to Johnson, this court has continued to look to

Federal Rule of Evidence 804 in determining whether a witness is

-58-

unavailable to testify. See People v. Caffey, 205 Ill. 2d 52, 100-01

(2001); People v. Ramey, 152 Ill. 2d 41, 70-73 (1992). In this case,

however, neither the appellate court nor the plurality has applied our

established precedent.

The plurality asserts that Johnson “is distinguishable in critical

respects.” Slip op. at 53. But the distinctions noted by the plurality do

not affect the core issue, the meaning of the term “unavailable” in the

context of a child witness. Johnson is indistinguishable on that point

because it involved whether child witnesses were unavailable to

testify. The plurality also states that this court has never relied on

Johnson in reviewing the admission of statements under section

115–10. Slip op. at 54. My research has not revealed any prior

decision of this court specifically defining the standard for

unavailability under section 115–10. That explains the plurality’s

reliance only upon appellate court cases for the applicable standard

for reviewing the statements at issue here. The fact that this court has

not previously relied on Johnson in this context is perhaps

understandable given that this court has not addressed the definition

of unavailability under section 115–10.

Further, the plurality claims that “the amendment to section

115–10 to permit the introduction of children’s out-of-court

statements when the child is unavailable appears to be precisely the

legislative resolution for which this court called in Johnson.” Slip op.

at 54. If the legislature intended to redefine unavailability of child

witnesses in response to Johnson, however, one would expect an

express statement in the statute redefining that term. Yet, there is

nothing in section 115–10 indicating that a different standard for

unavailability should be used than the one employed by this court in

Johnson. See 725 ILCS 5/115–10 (West 1998). The amendment to

section 115–10 does not indicate a legislative intent to alter the

definition of unavailability in the context of child witnesses. To the

contrary, the amendment without any change to the accepted standard

in Johnson indicates the legislature’s approval of this court’s

construction of that term.

I would also note that the plurality’s ultimate conclusion on the

standard to be applied is confusing. The plurality wavers between

stating unwillingness to testify is sufficient to constitute unavailability

and asserting inability to testify is required. Slip op. at 55. In fact, the

plurality’s final word on the matter is “[n]otwithstanding our holding

-59-

in Johnson that unwillingness to testify cannot constitute

unavailability to testify for purposes of Rule 414, we believe that in

the separate specific context of section 115–10, unavailability

includes those child witnesses who are unable to testify because of

fear.” (Emphasis in original.) Slip op. at 55. The plurality fails to

recognize that unwillingness to testify and inability to testify are

entirely different standards. In fact, the apparent standard adopted by

the plurality of inability to testify caused by fear is consistent with

Johnson because it requires more than mere reluctance or

unwillingness. See Johnson, 118 Ill. 2d at 509-10.

I would hold that the core rule in Johnson that unwillingness or

reluctance to testify cannot constitute unavailability is applicable

here. I agree that fear and other similar factors are proper in

determining whether a child witness is unavailable to testify. To meet

the standard in Johnson, however, there must be an inability to testify

because of fear or another factor, not mere reluctance or

unwillingness. As this court stated in Johnson, “mere reluctance to

testify cannot be accepted as a good enough reason to permit the use

of out-of-court testimony.” Johnson, 118 Ill. 2d at 510.

Here, the sole witness at the availability hearing was Nancy

Machonkin, a clinical child psychologist hired by M.M.’s father to

determine the potential impact of testifying upon M.M. As noted in

the plurality opinion, Machonkin testified that M.M. expressed

unwillingness and reluctance to testify. M.M. told Machonkin that she

did not want to talk about the alleged abuse and would not talk about

it. Slip op. at 5. Although Machonkin testified that M.M. would likely

experience anxiety, sleep disturbance, and difficulty in concentrating

if she were forced to testify, on cross-examination Machonkin

acknowledged that there were steps the court could take to minimize

the stress of testifying. Significantly, Machonkin testified that M.M.

could possibly become acclimated to the courtroom in as little as two

weeks by visiting the courtroom when it was empty, talking to the

judge in chambers, and meeting the people who would be asking her

questions.

Based on Machonkin’s testimony, the trial court found M.M.

unavailable to testify. The court noted that M.M. had refused to

discuss the incident with Machonkin, and concluded that testifying

would subject M.M. to fear and anxiety that would further traumatize

her.

-60-

The evidence presented at the availability hearing essentially

shows that M.M. expressed an unwillingness and reluctance to testify.

There was no showing that M.M. was unable to testify because of fear

or any other factor. In fact, Machonkin testified that the stress of

testifying could potentially be overcome in as little as two weeks by

acclimating M.M. to the courtroom and the trial process.

Nevertheless, no effort was made to acclimate M.M. All of M.M.’s

statements were admitted based solely on the trial court’s acceptance

of Machonkin’s untested conclusion that testifying would subject

M.M. to fear and anxiety. In contrast, in a case relied upon heavily by

the plurality, the trial court determined that the child witness was

unavailable only after she stopped testifying during direct

examination, and after the trial court and the prosecutor made

extensive efforts to get her to resume testifying. T.T., 351 Ill. App. 3d

at 985-86.

In this case, M.M. did not testify at trial. I also note that the trial

court did not have M.M. testify at the availability hearing to make a

direct observation of her reported fear and anxiety. The trial judge did

not even speak to M.M. in chambers to observe her demeanor.

Instead, the court simply deferred to Machonkin’s opinion that it was

not in M.M.’s best interest to testify and that she was unavailable,

despite the concession that M.M.’s stress could potentially be

overcome in as little as two weeks. The evidence here shows a mere

untested reluctance to testify. Reluctance alone is insufficient to

support a finding of unavailability under the standard adopted by this

court in Johnson.

The trial court’s ruling was unsupported by application of this

court’s precedent. In my view, the failure to apply this standard was

an abuse of discretion. The statutory hearsay exception in section

115–10 was not satisfied because the evidence does not establish that

M.M. was unavailable to testify. M.M.’s hearsay statements should

not have been admitted under section 115–10, and the trial court’s

ruling was prejudicial error. Thus, it is unnecessary to address

whether admission of M.M.’s statements violated the confrontation

clause. The plurality has, nonetheless, chosen to base its holding on

defendant’s confrontation clause claim. Therefore, I will also address

that issue.

II. Confrontation Clause Claim

-61-

In Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124

S. Ct. 1354 (2004), the Supreme Court reaffirmed the importance of

the constitutional right to confrontation. The Court held that a

testimonial hearsay statement of a witness who is unavailable to

testify may not be admitted against a criminal defendant unless the

defendant had a prior opportunity to cross-examine the witness.

Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.

The Crawford Court explicitly declined to give a comprehensive

definition of “testimonial statements.” See Crawford, 541 U.S. at 68,

158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Nonetheless, as noted by the

plurality, many authorities have concluded that the focus in

determining whether a statement is testimonial is always on the

declarant’s intent in giving the statement. Slip op. at 35. Significantly,

“[t]he declarant-centered approach is favored by Professor Richard

Friedman of the University of Michigan Law School, one of the

scholars whose works Crawford relied upon [citation] ‘in framing its

re-definition of the Confrontation Clause.’ ” Slip op. at 35, quoting

United States v. Cromer, 389 F.3d 662, 673 (6th Cir. 2004). Professor

Friedman has asserted that “[t]o be testimonial, it must appear from

the perspective of the witness that the statement is transmitting

information that will, to a significant probability, be used in

prosecution.” R. Friedman, Grappling With the Meaning of

“Testimonial,” 71 Brook. L. Rev. 241, 259 (2005). The plurality

agrees that the declarant’s perspective is the focus in a testimonial

analysis outside the context of statements produced by government

interrogation. Slip op. at 36.

The plurality, however, concludes that the Supreme Court’s recent

decision in Davis v. Washington, 547 U.S. ___, 165 L. Ed. 2d 224,

126 S. Ct. 2266 (2006), modified or clarified the analysis with respect

to statements made to government officials. Slip op. at 16. According

to the plurality, Davis held that the intent of a police officer in taking

a statement determines whether the statement is testimonial. Slip op.

at 16. I disagree with that conclusion.

In Davis, the Supreme Court held that:

“Statements are nontestimonial when made in the course

of police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency. They

are testimonial when the circumstances objectively indicate

-62-

that there is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.”

Davis, 547 U.S. at ___, 165 L. Ed. 2d at 237, 126 S. Ct. at

2273-74.

In my view, this holding does not indicate a shift in the focus to the

intent of the police officer in taking the statement. Rather, the holding

indicates that the perspective of the declarant is still the focus of the

inquiry. The circumstances presented by the police interrogation are

viewed from the perspective of the declarant, and the question is what

those circumstances objectively indicate to the declarant concerning

the primary purpose of the interrogation.

In Davis, the Court stated that “even when interrogation exists, it

is in the final analysis the declarant’s statements, not the

interrogator’s questions, that the Confrontation Clause requires us to

evaluate.” Davis, 547 U.S. at ___ n.1, 165 L. Ed. 2d at 237 n.1, 126

S. Ct. at 2274 n.1. The plurality acknowledges that “ultimately it is

the declarant’s intent to which the confrontation clause looks.” Slip

op. at 35. I would hold that the focus in determining whether a

statement is testimonial remains on the declarant’s intent.

The plurality also concludes that a child’s age “is among the

circumstances potentially relevant to evaluating whether the objective

circumstances of the statement would have led a reasonable declarant

to understand that his or her statement could be used in a subsequent

prosecution of the defendant.” Slip op. at 38. In my opinion, the cases

holding that a child’s age should not be considered in determining

whether a statement is testimonial are persuasive and should be

followed. See People v. Sisavath, 118 Cal. App. 4th 1396, 1402 n.3,

13 Cal. Rptr. 3d 753, 758 n.3 (2004); State v. Snowden, 385 Md. 64,

90-91, 867 A.2d 314, 329 (2005).

In Sisavath, the court rejected the notion that “an ‘objective

witness’ should be taken to mean an objective witness in the same

category of persons as the actual witness–here, an objective four year

old.” Sisavath, 118 Cal. App. 4th at 1402 n.3, 13 Cal. Rptr. 3d at 758

n.3. Instead, the court found that the Supreme Court likely meant that

a statement is testimonial if its use in a criminal prosecution is

reasonably foreseeable to an objective observer. Sisavath, 118 Cal.

App. 4th at 1402 n.3, 13 Cal. Rptr. 3d at 758 n.3.

-63-

In Snowden, the court recognized that the confrontation clause is

designed to protect the fundamental rights of the accused. Snowden,

385 Md. at 90, 867 A.2d at 329. The court noted that the interest in

protecting victims from testifying may never outweigh the explicit

confrontation clause guarantee of the right to be confronted with the

witnesses at trial. Snowden, 385 Md. at 90, 867 A.2d at 329, citing

Coy v. Iowa, 487 U.S. 1012, 1019-21, 101 L. Ed. 2d 857, 866-67, 108

S. Ct. 2798, 2802-03 (1988). The court, therefore, concluded that “an

objective test, using an objective person, rather than an objective

child of that age, is the appropriate test for determining whether a

statement is testimonial in nature.” Snowden, 385 Md. at 90-91, 867

A.2d at 329.

Under the plurality’s holding, the protections of the confrontation

clause will not apply to an entire category of out-of-court statements

by young children. The plurality holds that a child’s age may be

considered in determining whether a reasonable declarant would

understand that his or her statement could be used in a subsequent

prosecution. Slip op. at 40. Very young children, however, are simply

not aware of the existence of the criminal justice system and are,

therefore, incapable of anticipating that their statements likely would

be used in a prosecution. Thus, under the plurality’s decision, the

confrontation clause will not apply to statements of children under the

age where they become aware of the criminal justice system, at least

when the statement is made to someone other than a government

agent.

This result cannot be squared with the confrontation clause. The

confrontation clause provides that a criminal defendant “shall enjoy

the right *** to be confronted with the witnesses against him.” U.S.

Const., amend. VI. The plain language of this constitutional provision

indicates that it applies to all witnesses. There is no express exception

for testimony of child witnesses, and the Constitution contains no

provision creating a testimonial privilege for them. Child witnesses

often provide the critical evidence in criminal prosecutions. The

plurality’s holding simply does not comport with either the express

language of the confrontation clause or the Supreme Court’s decision

in Crawford.

I would note that there are ways to satisfy a defendant’s right to

confrontation while mitigating any potential impact of testifying on

a child witness. In this case, Nancy Machonkin, a clinical child

-64-

psychologist, testified that M.M. could possibly become acclimated

to the courtroom in a short time by visiting the courtroom when it was

empty, talking to the judge, and meeting the attorneys and other

participants in the trial. Defendant suggests that M.M.’s anxiety or

fear might have been reduced by allowing her to testify with her

mother nearby or by testifying in a room other than the courtroom.

Further, M.M. could have been allowed to testify by closed-circuit

television if certain requirements were met. See 725 ILCS 5/106B–5

(West 1998). Testimony by closed-circuit television was an option in

this case that may have greatly reduced any adverse effects of

testifying. See 725 ILCS 5/106B–5 (West 1998). Although these and

other steps may possibly be taken to acclimate a child to testify, the

interest in protecting children from testifying may not outweigh the

explicit constitutional right to be confronted with the witnesses at

trial. Snowden, 385 Md. at 90, 867 A.2d at 329, citing Coy v. Iowa,

487 U.S. 1012, 1019-21, 101 L. Ed. 2d 857, 866-67, 108 S. Ct. 2798,

2802-03 (1988).

In sum, I believe that the same test should be applied to all

witnesses in determining whether a statement is testimonial. That test

is whether the circumstances objectively indicate that a reasonable

adult in the declarant’s position would anticipate that his or her

statement likely would be used in a criminal prosecution.

I agree with the plurality that M.M.’s statements to Ann Grote and

Perry Yates were testimonial. Those statements were made in a

sufficiently solemn setting to be considered testimonial. The objective

circumstances indicate that the primary purpose of those interviews

was to collect information for a possible criminal prosecution. Based

on the objective circumstances, a reasonable adult would have

anticipated that the statements would be used in a criminal

prosecution.

I disagree, however, with the plurality’s determination that

M.M.’s statement to her mother, Joan G., was not testimonial. The

record shows that M.M. informed her babysitter, Brenda Galete, of

the sexual abuse by “Bob.” Galete went to Joan’s place of

employment. After locating Joan, Galete informed her that M.M.

needed to be taken to the hospital because Galete believed M.M. was

being sexually molested. Joan got into the backseat of the car with

M.M. Galete did not hear any conversation between Joan and M.M.

on the ride to the hospital.

-65-

Joan testified that Galete came to her workplace and stated they

needed to take M.M. to the hospital. Galete did not tell Joan the

reason that M.M. needed to go to the hospital. Joan got into the

backseat of the car, put her arm around M.M., and asked her, “What’s

wrong?” M.M. stated that “Bob had done something to her.” M.M.

then described the incident of sexual abuse by “Bob.”

First, I believe that these statements were made with sufficient

solemnity to be considered testimonial. M.M. was driven to her

mother’s workplace. Her mother got off of work, came to the car, and

sat in the backseat with M.M. Her mother, who is undoubtedly an

authority figure to M.M., asked her, “What’s wrong?” M.M. certainly

would have understood that she may be subject to discipline if she did

not treat this matter seriously after having her mother take time off of

work. These facts indicate that this was an important matter. The

seriousness of the situation was apparent. Thus, I would find that the

solemnity requirement was established.

The next question, then, is whether the circumstances objectively

indicate that a reasonable adult in M.M.’s position would anticipate

that her statement likely would be used in a prosecution. The focus is

on whether “the witness was acting in a manner analogous to a

witness at trial, describing or giving information regarding events

which had previously occurred.” Slip op. at 28. In response to her

mother’s question, M.M. described an incident of sexual abuse by

“Bob.” Thus, M.M. gave information concerning an event that had

previously occurred. Her statement did not focus on her physical

condition or any injury she may have suffered. A reasonable adult in

M.M.’s position would recognize that the acts she was describing

constituted a serious criminal offense. Based on these facts, I would

find that a reasonable adult in M.M.’s position wo

This text is long and has been trimmed here. Open the source document for the complete record.