People v. Becker

Docket No. 108986.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

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

ROBERT BECKER, Appellee.

Opinion filed December 2, 2010.

JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman,

Burke, and Theis concurred in the judgment and opinion.

OPINION

The principal issue presented for review in this appeal is whether

the trial court abused its discretion when it excluded, at trial, the

expert testimony of Dr. Katherine Okla, concerning the

reliability/credibility of hearsay statements made by O.B., the alleged

child victim of a sexual assault. The court had deemed the statements

“reliable”–and thus admissible at trial–following a pretrial hearing

conducted pursuant to the provisions of section 115–10 of the Code

of Criminal Procedure of 1963 (Code) (725 ILCS 5/115–10 (West

2006)). Okla provided extensive testimony at that hearing. A

secondary issue is whether statements of the victim, made five months

after the alleged abuse, were sufficiently reliable to be admissible at

trial.

On appeal below, with one justice dissenting, the appellate court

reversed the judgment of the circuit court and remanded for a new

trial, holding that the trial court had erred in excluding the defense

expert’s testimony on the ground that it would usurp the jury’s role as

the arbiter of the victim’s credibility. Although the appellate court

found it was unnecessary to decide the remaining issues raised by

defendant in light of the foregoing determination, the court

nonetheless addressed “the admission of hearsay statements and the

closed courtroom during [the victim’s] testimony since both issues are

likely to arise again on remand.” No. 3–07–0660 (unpublished order

under Supreme Court Rule 23). The appellate court discerned no

error in closure of the courtroom, nor in admission of most of the

hearsay statements at issue; however, the appellate court majority did

conclude that the trial court abused its discretion in allowing evidence

of the victim’s belated statements of September 19, 2003, and the

court “preclude[d] their admission on remand.” No. 3–07–0660

(unpublished order under Supreme Court Rule 23). Justice Holdridge

dissented from that finding and from the majority’s determination that

Okla’s testimony was improperly excluded at trial. For the reasons

that follow, we reverse the judgment of the appellate court and affirm

the judgment of the circuit court.

BACKGROUND

Defendant, Robert Becker, was charged by indictment in the

circuit court of Peoria County with predatory criminal sexual assault

of a child (720 ILCS 5/12–14.1(a)(1) (West 2002)) and criminal

sexual assault (720 ILCS 5/12–13(a)(3) (West 2002)). The alleged

victim was defendant’s three-year-old daughter, O.B. Defendant was

initially found guilty after a bench trial and was sentenced to 14 years

in prison. On appeal, his convictions were overturned, the appellate

court having found that defendant had received ineffective assistance

of counsel. People v. Becker, No. 3–05–0106 (2005) (unpublished

order under Supreme Court Rule 23).

Prior to retrial, the State sought to introduce four hearsay

statements made by O.B: (1) an April 21, 2003, statement she made

to her mother, Amy Becker, immediately after returning from her

father’s house; (2) a statement made to her mother in May of 2003,

about a “blue microphone”; (3) a July 1, 2003, videotaped interview

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with Detective Michael Eddlemon; and (4) a September 19, 2003,

statement she made to her mother in the presence of her mother’s

friend, Olga Reyes.

The court scheduled a hearing, pursuant to section 115–10 of the

Code (725 ILCS 5/115–10 (West 2006)), to determine whether the

statements in question should be admitted at trial. Pertinent to our

present inquiry, section 115–10 provides for admission of evidence

and testimony concerning a statement of a child victim of sexual

abuse, relating to the abuse, where the court finds, after a hearing,

“that the time, content, and circumstances of the statement provide

sufficient safeguards of reliability.” 725 ILCS 5/115–10(a), (b)(1)

(West 2006). If the statement is admitted at trial, “the court shall

instruct the jury that it is for the jury to determine the weight and

credibility to be given the statement and that, in making the

determination, it shall consider the age and maturity of the child, ***

the nature of the statement, the circumstances under which the

statement was made, and any other relevant factor.” 725 ILCS

5/115–10(c) (West 2006). Prior to the section 115–10 hearing, the

State moved in limine to exclude Okla from testifying at both the

section 115–10 hearing and the trial. The trial court admitted Okla’s

testimony for purposes of the section 115–10 hearing, but ultimately

excluded it for purposes of trial.

At the section 115–10 hearing, Amy Becker testified regarding the

statements made by O.B. in April and May of 2003. Amy stated that

she picked her children up from defendant’s Peoria residence on April

21, 2003, after visitation. On the way home from defendant’s house,

O.B. threw up in the car. When they arrived in Chicago, Amy put

O.B. in the bathtub. As Amy tried to wash O.B., O.B. stood up, cried,

and backed away. She told Amy that her “front bottom” hurt. Amy

asked O.B. what happened, and O.B. responded, “Daddy hurt my

front bottom.” When Amy asked her what she meant, O.B. pulled her

genitals apart and pointed to her vagina.

Amy removed O.B. from the bathtub and dressed her. Amy

testified she then suggested that she be O.B. and O.B. be her father,

and that they act out what happened. Amy stated: “I laid down on the

floor and I think she must have told me to lay down, mommy, lay

down. She said, now you pretend like you’re asleep. She started kind

of moving my hips and she said, now you say, no, daddy, please stop,

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you’re waking me up. So I said, no, daddy, please stop, you’re waking

me up. And then she shook my shoulders and said, you woke yourself

up, now go back to sleep.”

Amy testified that approximately two weeks later, she was in the

bathroom when O.B. came in and asked her if she knew about “dad’s

special blue microphone.” Amy said, “No.” O.B. then described it to

her as blue and shiny at the top, and she said sometimes daddy poked

her with it. O.B. told Amy it “hurt sometimes.” Amy testified she had

not been asking O.B. any questions or talking about defendant when

O.B. made the statements.

On cross-examination, Amy admitted that, at a proceeding in July

2003, she had testified that when O.B. became upset in the bathtub

she had asked “Is daddy hurting you?” and O.B. responded

affirmatively. On redirect, Amy denied that she had initially told

investigators that she had asked O.B. if defendant was hurting her.

Detective Michael Eddlemon testified that he was assigned to the

juvenile division of the Peoria police department and had been with

the department for 15 years. On July 1, 2003, he conducted a

videotaped interview of O.B., who was four years old at the time.

Eddlemon testified that the copy of the videotape presented in court

fairly and accurately depicted the interview he conducted.

On cross-examination, Eddlemon acknowledged that he did not

interview O.B. using any specific protocol for interviewing child abuse

victims. He testified that Pam Coates, an investigator for the

Department of Children and Family Services (DCFS), was also

present for the interview. Both he and Coates asked O.B. questions.

During the interview, O.B. stated, “My dad hurt me.” Eddlemon

asked, “Did your dad touch your front bottom?” O.B. responded

affirmatively and whispered into Eddlemon’s ear, “He put the blue

microphone there.” When Eddlemon asked O.B. if people were

supposed to touch her there, O.B. responded in the negative.

Eddlemon admitted there were numerous inconsistencies in O.B.’s

answers during the course of the interview. He acknowledged that

O.B. had stated the “blue microphone” came from defendant’s head

and that Amy had also touched her with the blue microphone. He did

not ask O.B. to resolve the inconsistencies. He did, however, ask her

if she understood the difference between the truth and a lie, and she

stated she did. The circuit court then viewed the video.

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The final statements at issue were uttered on September 19, 2003,

when Amy had some friends over, one of whom was Olga Reyes.

Reyes testified, as the adults talked after dinner, O.B. crawled into

Amy’s lap and said, “I miss my daddy, but he hurt my front bottom.”

Reyes indicated O.B.’s statement had nothing to do with the

conversation the adults were having at the time. O.B. had never said

anything to Reyes about the incident before. Later, when Amy was

getting the children ready for bed, Reyes overheard O.B. say, “Don’t

go, I’m afraid daddy is going to hurt me. I’m afraid daddy is going to

come.”

Dr. Okla testified that she specializes in child and adolescent

psychology and forensic evaluation, treatment and questioning in child

abuse cases. Okla evaluated all of O.B.’s out-of-court statements by

reviewing interview notes, transcripts and videos. She did not

interview O.B. Based on her review of those materials, Okla testified

that O.B. “may have been influenced” by “post-event information and

improper techniques.” With regard to O.B.’s statements to her

mother, Okla underscored the significance of the impending divorce

and O.B.’s desire to please her primary caregiver. Okla found the

statements in the bathtub troubling because defendant’s involvement

was first suggested by Amy. She thought Amy also may have

suggested the action by lying on the floor and asking O.B. to reenact

the event. As for O.B.’s interviews with various professionals, Okla

testified that O.B.’s psychologist used suggestive and coercive

questioning during counseling. Okla suggested that those actions may

have undermined the reliability of the detective’s interview and

“likely” impacted O.B.’s ability to accurately report the event. Okla

opined that O.B.’s ongoing psychotherapy may also have affected her

ability to accurately report as it was a method of “rehearing.”

Okla testified that Detective Eddlemon may have intimidated O.B.

in his interview with her, by telling her that he had already spoken

with her mother and brother. Okla also noted the lack of ground rules

at the beginning of the interview: “[S]o we don’t have any way of

knowing whether or not this child understood that she wasn’t

supposed to guess; that she was not supposed to talk about pretend;

that she was supposed to ask questions if she didn’t understand; that

she was supposed to correct the interviewer if they [sic] made a

misstatement.” Okla stated that Eddlemon should have questioned

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O.B. further on the issue of the “blue microphone” rather than

accepting her terminology and moving on. In Okla’s opinion, the most

troubling part of the interview was the detective’s failure to ask

follow-up questions when O.B. changed her story and told Eddlemon

that defendant pulled the blue microphone out of his head, that Amy

tried to pull it out of defendant’s head, and that Amy touched O.B.’s

front bottom with the blue microphone as well.

Okla believed there was no reason for her to interview O.B.

because “[t]here’s no clean evidence left to get.” Okla opined it was

likely that O.B.’s memory and answers were tainted. She stated:

“Now, it’s too late for us to go back and say which of these things are

true or false because she’s heard it so many times. *** [I]t does

educate you hopefully about all the reasons why you should or should

not put weight on her credibility one way or the other.” Although

Okla did not give an ultimate opinion as to O.B.’s credibility, when

asked directly by the court, Okla frankly stated her belief that O.B.

could not give a “reliable” statement in person on the stand.

In a thorough 18-page order, the circuit court set forth its reasons

for excluding Okla’s testimony from trial and admitting the hearsay

statements in question. With respect to the former ruling, the court

noted, inter alia, defendant’s response to the State’s motion in limine

wherein defendant indicated that Okla would testify “based upon the

specific facts as reflected in the documented questioning and treatment

of [O.B.], that [O.B.]’s ability to testify accurately as to the subject

matter of the questioning has been significantly impaired.” (Emphasis

in original.) The court emphasized the mandate of section 115–10,

that it is for the jury to determine the weight and credibility given to

any statement admitted pursuant to that section, considering “the age

and maturity of the child, *** the nature of the statement, the

circumstances under which the statement was made, and any other

relevant factor.” The circuit court stated its belief that “the law in the

State of Illinois” is expressed in People v. Wilson, 246 Ill. App. 3d

311 (1993), and quoted the following passage in that opinion:

“In refusing to allow defendant’s expert to testify, the trial

court noted that the expert testimony would unduly emphasize

the children’s testimony at trial, would reveal only general

information about children as opposed to information about

the child victims in this case, and would only provide common

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knowledge that defendant could argue to the jury without the

aid of an expert. We agree. The limited cognitive abilities of

children are well known, and any jury can be expected to take

that factor into account when determining a child’s credibility.

The proffered expert testimony on this point would have

provided no useful information to the jury.” Wilson, 246 Ill.

App. 3d at 321.

In this case, the circuit court noted Okla’s stated opinion at the

section 115–10 hearing “that the child’s out-of-court statements and

any yet to be received testimony at trial are tainted and have a ‘high

probability’ of having been influenced by improper questioning.”

Continuing, the court observed: “Incredibly, from a criminal

procedure standpoint, she testified that it would be useless to

interview the child further or even have the child testify at this point

at trial as ‘there is no clean evidence left to get.’ ”

Confronted with the proposed testimony of an expert, that would,

in effect, advise the jury to ignore not only O.B.’s hearsay statements,

but her trial testimony as well, the circuit court exercised its discretion

and excluded Okla’s testimony at trial. In so ruling, the court

observed:

“Virtually all of the points Defendant seeks to establish can

be accomplished through cross-examination or summation to

the jury as Defendant’s counsel so aptly accomplished during

his cross-examination of Detective Eddlemon at the 115–10

hearing. Likewise, he will be able to do that at the trial. In

other words, Defendant still has, and always has had, the

significant benefits and safeguards afforded by cross-

examination, and those benefits should not be dismissed as

inconsequential. Specifically, the Defendant will have the

opportunity to cross-examine anyone testifying as to the out-

of-court statements and, likely, the minor as well.”

The court expressed concern that the trial could deteriorate into

a situation where “two battling experts”–one for defendant and one

for the State–would convey to the jury opinions as to whether the jury

should believe the witness’s statements, a scenario that would

“significantly infringe[] upon the jury’s duty to assess for itself the

weight and credibility of the statements.” On this issue, the court

concluded:

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“In offering an expert’s opinion on ‘O.B.’s ability to testify

accurately,’ Defendant is directly attacking O.B.’s credibility.

There is no other possible inference. Simple common sense

dictates that jurors have already connected the invisible dots

and formulated the obvious answer. It invades the province of

the jury on the issue of credibility, it is not to be permitted and

it is not cured by simply prohibiting the obvious ultimate

question from being asked. Accordingly, Doctor Okla will not

be allowed to testify before the jury.”

With respect to the admissibility of the victim’s hearsay

statements, the circuit court enumerated frequently mentioned factors

considered “safeguards of reliability,” and then concluded there were

sufficient safeguards in this case. The court placed special emphasis

upon the victim’s initial statements on April 21, 2003, noting they

were for the most part spontaneous and “extremely close in time to

the alleged abuse [citation], and accompanied by emotion.” In

addition, “the minor’s non-verbal description of the alleged act was

beyond the developmentally usual sexual knowledge of a four year

old.” Moreover, the court noted there had been no counseling as of

that date. The court stated “there is simply nothing in the evidence

that warrants a finding that the questioning was so unnecessarily

suggestive, conducive or improper such that the time, content and

circumstances surrounding the statements do not provide sufficient

safeguards of reliability.” The court observed, with respect to

statements made to Detective Eddlemon, there was a “taped interview

to be reviewed directly by the jury.” The court concluded “it is

appropriately left to the jury to decide whether the statements

contained ‘no clean evidence’, and whether there was any ‘clean

evidence left to get.’ ”

At the ensuing trial, the witnesses from the section 115–10 hearing

gave testimony similar to their statements at the hearing. Amy testified

regarding the April 21 and May 2 statements. Again, on cross-

examination, Amy was confronted with her testimony from July 2003,

when she testified that she asked O.B.: “Is daddy hurting you?” Amy

acknowledged that she so testified. Defense counsel also questioned

Amy about a statement she gave to a detective in May of 2003. The

detective’s report stated, “Amy thought to ask [O.B.] if her daddy had

touched her there.” Amy denied that she made that statement. Amy

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admitted she did not say that O.B. told her to lie down when she

testified at defendant’s first trial, but stated that O.B. must have told

her to do that because she would not have known to lie down

otherwise.

Detective Eddlemon did not testify at trial, but the videotaped

interview was played for the jury. The first segment of the two-part

interview lasted 16 minutes. That segment of the interview depicts a

conversation between O.B. and Detective Eddlemon regarding O.B.’s

statements that defendant hurt her “front bottom” with a “blue

microphone.” O.B. is seated at a small table with Eddlemon and

Coates. She appears happy and is comfortable speaking with

Eddlemon. She tells him her dad hurt her “front bottom” with a “blue

microphone” that he held in his hand, that he touched her “privates”

in his closet and on his bed, and that he touched her “front bottom”

with his hand. When Eddlemon asks where the microphone came

from, O.B. points to her head and says that her father kept it in his

head. She then states that Amy used the blue microphone on O.B.’s

“front bottom” too. She states that her mother “tried and tried to pull

the blue microphone out of Daddy’s head and she finally got it!”

When asked, O.B. indicates that the blue microphone was shaped like

a circle and was approximately six to eight inches tall. Eddlemon then

asked O.B. if she knew the difference between the truth and a lie, and

she nodded her head “yes.” O.B., Eddlemon and Coates then exit the

room.

The second segment of the video is unremarkable from an

evidentiary standpoint, other than O.B.’s disinterest in the

proceedings. The three principals return to the interview room and

Eddlemon states that he needs to ask O.B. a few more questions.

Eddlemon asks O.B. to draw the blue microphone and she produces

a picture that is unidentifiable. The caseworker then asks O.B.

questions about a room in the attic or a “special” room in defendant’s

house. O.B. is unable to identify such a room and asks if she can

watch a movie. At that point the interview ends.

Amy’s friend, Olga Reyes, testified that on the evening of

September 19, 2003, she heard O.B. make two statements to Amy. In

the second statement, she overheard O.B. telling Amy, as the latter

was putting the former to bed, that she was “afraid that daddy will

come and hurt my front bottom.” Reyes acknowledged that during the

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earlier section 115–10 hearing, she had stated that when O.B. was in

her bedroom, O.B. said, “I’m afraid daddy will come.” Reyes did not

testify that O.B. had used the term “front bottom” at that time.

O.B. was eight years old when she testified at trial. She told the

jury when she was three she spent the Easter holiday with her father.

She testified, during that weekend, defendant put hair gel in her front

bottom, stuck a tall metal knife in her front bottom, and put a “blue

microphone,” 8 to 10 inches in length, between her front bottom and

back bottom while she was sleeping on his bed. She stated that she

told her mother what defendant had done while her mother was giving

her a bath. She recalled talking to a doctor the next day, but could not

remember the details of the conversation.

On cross-examination, O.B. had difficulty recalling many of the

facts to which she had testified at the first trial. She did not remember

talking to a DCFS investigator, meeting with Eddlemon or Coates, or

answering “no” to the trial court when the judge asked if anything bad

happened to her on Easter weekend. She also denied telling

investigators that her friend, Grant, kicked her in her “privates.” In

response to questioning by defense counsel, she did elaborate on her

description of the “blue microphone,” describing it as “yellow” at the

top and “blue and green on the handle.” O.B. acknowledged having

testified at the first trial that “it felt weird” when defendant put the

“blue microphone” in her front bottom.

Pediatrician Elizabeth Powell testified that she examined O.B. in

the emergency room on April 22, 2003. Her examination did not

reveal any bruises or tears; however, she could see the posterior

vaginal wall, which she thought was unusual for a young child, so she

referred O.B. to the advocacy center.

Dr. Marjorie Fujura, a pediatrician employed by the Children’s

Advocacy Center, testified that she met with Amy and O.B. on June

2, 2003. After several attempts, she examined O.B. under sedation on

June 11, 2003. Her physical exam of O.B. indicated that a portion of

her hymen was absent. Fujura testified that she had performed 3,000

examinations on sexually abused children. She believed O.B.’s injury

to her hymen was not self-inflicted, nor was it caused by a punch from

another child. It was Fujura’s opinion that O.B. had been sexually

abused. Fujura took photographs of O.B.’s hymen. Those photos,

which were admitted into evidence, showed the lower portion of

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O.B.’s hymen was missing.

Dr. Ramona Slupik testified on behalf of defendant. Slupik, a

board-certified obstetrician and gynecologist, was the head of

pediatric and adolescent gynecology at Children’s Memorial Hospital

from 1990 to 1999. She examined the photographs of O.B.’s hymen

and testified that O.B. had a “normal crescent hymen.” She noted

there were no lacerations in the hymenal tissue. Dr. Slupik stated her

belief that it was “physically impossible” to insert an object of the size

described by O.B. “without causing a complete tear of the hymen.” In

addition, a child the size of O.B. would suffer serious injury and

bleeding from such penetration. Slupik’s review of the photographs

revealed no signs of penetration trauma.

Dr. Lela Jain also testified for defendant. She examined O.B. on

May 19, 2003, in her office for a respiratory illness. During the exam,

Amy mentioned O.B.’s report of possible abuse. Jain visually

examined O.B.’s vaginal area and found nothing abnormal. She

observed no tears or lacerations.

Defendant testified that he and Amy had been separated for

several months prior to April of 2003. However, the couple

maintained an amicable relationship and even attempted to reconcile

at one point. Although they were in the midst of divorce proceedings

in April of 2003, which included issues of custody and visitation,

visitation arrangements had never been contentious prior to the

allegation of abuse. Defendant had the children for Easter weekend

that year, and Amy picked them up on Monday afternoon. That was

the last day he was allowed to see his children. Defendant testified that

he never abused the children and the accusation that he had abused his

daughter was false. Defendant admitted, on cross-examination, that he

left on a photo safari to Africa at a time when he was aware of Amy’s

“concerns” that “somebody” had sexually abused O.B., though he

claimed he did not then know he was the alleged perpetrator.

The jury found defendant guilty of both counts, and defendant was

sentenced to 14 years’ imprisonment for predatory criminal sexual

assault.

As noted, the appellate court, with one justice dissenting, reversed

and remanded for a new trial. With respect to the issue of admissibility

of expert testimony, the majority believed the facts of this case make

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it distinguishable from People v. Enis, 139 Ill. 2d 264 (1990), and

People v. Wilson, 246 Ill. App. 3d 311 (1993), and controlled by the

holding in People v. Cardamone, 381 Ill. App. 3d 462 (2008). The

appellate majority reasoned that the courts in Enis and Wilson rejected

the use of the expert’s testimony at trial “because it lacked

applicability to the specific facts of the case.” According to the

majority, “[b]y contrast, Dr. Okla’s testimony directly analyzed the

effects of suggestion, repetition and narration on O.B.’s cognitive

memory. *** She *** applied *** scientific theories to the

questioning and interviewing techniques used to recall O.B.’s memory

of the events of April 21, 2003.” No. 3–07–0660 (unpublished order

under Supreme Court Rule 23). According to the majority, “[u]nlike

the experts in Enis and Wilson, Okla proposed to testify to the specific

facts related to O.B.’s statements, not generalities.” The majority

likened the circumstances here to those extant in Cardamone, where

the appellate court reversed the defendant’s conviction and remanded

for a new trial, because the trial court excluded expert testimony on

this subject. No. 3–07–0660 (unpublished order under Supreme Court

Rule 23). This appellate panel summarized the holding of Cardamone

as follows:

“The court concluded that, unlike Enis and Wilson, the

experts’ testimony was supported by the testimony of the

victims, who reported the events at an age when young

children have difficulty remembering events, had told the story

numerous times even without suggestion, and were

interviewed using leading and suggestive questions instead of

being allowed to give a narrative response. The court further

determined that the experts’ testimony did not constitute

improper commentary on the credibility of victims because the

experts had not interviewed the victims and had not made any

determinations as to whether they were credible. Cardamone,

381 Ill. App. 3d at 507.” No. 3–07–0660 (unpublished order

under Supreme Court Rule 23)

In this case, the appellate court found it significant–and indeed a fact

supporting its disposition–that “Dr. Okla did not interview O.B.”

As for the hearsay statements at issue, the appellate court found

the initial April 21 statement reliable because it was spontaneous, it

was made “within days of the alleged event,” it was repeated to

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Detective Eddlemon, and the language used by O.B. was consistent

with the terms a three-year-old would use. The court determined that

the second statement, made two weeks after the first, was also

properly admitted, as it was made without significant adult prompting

or solicitation, and, though it was different from the April 21

statement, it was relevant to the allegations of abuse and consistent

with her later statement to Detective Eddlemon. The court found that

the statements given by O.B. in the first segment of her July 1

videotaped interview were properly admitted, noting that O.B.’s

previous statements were “substantially similar,” that she seemed

comfortable and did not appear apprehensive or concerned that she

might not tell the story correctly, and her use of “sexual” terminology

was typical for a four-year-old. Moreover, the fact that the interview

was videotaped was “the best evidence that no adult prompting or

manipulation occurred” during the course of the discussion. However,

the appellate court found no relevance to the second segment of the

interview, as the picture O.B. drew of the “blue microphone” was

unidentifiable, and nothing of record suggests that an attic or special

room might have been involved in the alleged incident, as Coates’

question suggested. The court held that segment of the interview

should have been excluded. No. 3–07–0660 (unpublished order under

Supreme Court Rule 23)

The court made the same determination with respect to O.B.’s

statements of September 19, finding the “timing of these statements

*** troubling.” The court noted that they were uttered five months

after O.B. spent Easter vacation with her father, that she had been

interviewed by two detectives and had attended counseling sessions

with a psychotherapist, and the State had failed to introduce any

substantive evidence regarding the first investigative interview or the

therapist’s interview. The court concluded, citing this court’s decision

in People v. Zwart, 151 Ill. 2d 37, 45 (1992): “[We cannot] presume

from a silent record that suggestive interview techniques were not

used.” Almost as an afterthought, the court observed that a portion of

Reyes’ trial testimony was cumulative of other evidence in the case,

insofar as she stated her father had hurt her “front bottom.” The court

noted O.B.’s statement that she was afraid of her father was a

comment not previously made and suggested that the statement may

have been the product of suggestive questioning during interviews.

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Though the appellate court acknowledged that “delay alone may not

suggest that the statements are unreliable,” it believed that “the delay

becomes more significant when considered in light of other factors

that tend to show O.B.’s September 19 statements made in Reyes’

presence lacked reliability.” Thus, the appellate court majority

concluded that the trial court had abused its discretion in admitting

those statements at trial. No. 3–07–0660 (unpublished order under

Supreme Court Rule 23).

Given its determinations of evidentiary error–principally the

exclusion of Okla’s testimony–the appellate court reversed and

remanded for a new trial, finding, however, that the evidence properly

before the trier of fact was sufficient to prove defendant guilty beyond

a reasonable doubt, such that there was “no double jeopardy

impediment to a new trial.” No. 3–07–0660 (unpublished order under

Supreme Court Rule 23).

ANALYSIS

We begin our analysis with basic standards of review applicable to

evidentiary issues. The admission of evidence is within the sound

discretion of a trial court, and a reviewing court will not reverse the

trial court absent a showing of an abuse of that discretion. Snelson v.

Kamm, 204 Ill. 2d 1, 24 (2003); People v. Hall, 195 Ill. 2d 1, 20-21

(2000). An abuse of discretion occurs where the trial court’s decision

is arbitrary, fanciful or unreasonable (People v. Illgen, 145 Ill. 2d 353,

364 (1991)) or where no reasonable person would agree with the

position adopted by the trial court (Schwartz v. Cortelloni, 177 Ill. 2d

166, 176 (1997); Illgen, 145 Ill. 2d at 364). Decisions of whether to

admit expert testimony are reviewed using this same abuse of

discretion standard. Snelson, 204 Ill. 2d at 24; People v. Reid, 179 Ill.

2d 297, 313 (1997).

In People v. Enis, 139 Ill. 2d 264, 289 (1990), this court

prophetically cautioned against the overuse of expert testimony:

“Such testimony, in this case concerning the unreliability of

eyewitness testimony, could well lead to the use of expert

testimony concerning the unreliability of other types of

testimony and, eventually, to the use of experts to testify as to

the unreliability of expert testimony. So-called experts can

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usually be obtained to support most any position. The

determination of a lawsuit should not depend upon which side

can present the most or the most convincing expert

witnesses.”

In an effort to curb potential abuses, this court established certain

standards for admissibility. In Enis, this court mandated that a trial

judge, when determining the admissibility of expert testimony, and

when considering the reliability of the expert testimony, should

balance its probative value against its prejudicial effect. Enis, 139 Ill.

2d at 290. In the exercise of his or her discretion, the trial judge

should also carefully consider the necessity and relevance of the expert

testimony in light of the facts in the case before admitting it for the

jury’s consideration. Enis, 139 Ill. 2d at 290. This court has held that

expert testimony is only necessary when the subject is both

particularly within the witness’s experience and qualifications and

beyond that of the average juror’s, and when it will aid the jury in

reaching its conclusion. People v. Cloutier, 156 Ill. 2d 483, 501

(1993); Enis, 139 Ill. 2d at 288. Expert testimony is not admissible on

matters of common knowledge unless the subject is difficult to

understand and explain. People v. Gilliam, 172 Ill. 2d 484, 513

(1996). A trial court does not err in barring expert testimony where

the matter at issue is not beyond the ken of the average juror. Watkins

v. Schmitt, 172 Ill. 2d 193, 206-07 (1996).

In this case, the trial court was confronted with the proffered

testimony of Dr. Okla, that would, for all practical purposes, advise

the jury to disregard not only O.B.’s hearsay statements, but her trial

testimony as well, all without Okla having even interviewed O.B.

During section 115–10 proceedings, Okla stated there was no reason

for her to interview O.B. because “[t]here’s no clean evidence left to

get.” Okla said it was likely that O.B.’s memory and answers were

tainted. She stated, “hopefully,” her (Okla’s) testimony would

“educate” people why they “should or should not put weight on

[O.B.’s] credibility one way or the other.” When asked directly by the

court, Okla frankly stated her belief that O.B. could not give a

“reliable” statement in person on the stand.

Her tactical equivocation aside, there was no “one way or the

other” involved in Okla’s proposed testimony. Her testimony would

constitute direct, adverse comment on the “credibility” of O.B., that

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is “credibility” in the broadest, utilitarian sense, as defined in Black’s

Law Dictionary: “The quality that makes something (as a witness or

some evidence) worthy of belief.” Black’s Law Dictionary 423 (9th

ed. 2009). Given the facts of this case, the trial court did not abuse its

discretion when it excluded Okla’s testimony.

One basis for exclusion is the impropriety of asking one witness to

comment directly on the credibility of another. Under Illinois law, it

is generally improper to ask one witness to comment directly on the

credibility of another witness (People v. Kokoraleis, 132 Ill. 2d 235,

264 (1989); People v. Henderson, 394 Ill. App. 3d 747, 753-54

(2009)) as “[q]uestions of credibility are to be resolved by the trier of

fact” (Kokoraleis, 132 Ill. 2d at 264). While this observation in

Kokoraleis was rendered regarding the impropriety of asking for such

an opinion during the cross-examination of another witness, the error

here would obviously have been magnified many times

over–quantitatively and in terms of apparent authority of the

source–had the trial court allowed Okla to testify as an expert at trial,

offering extensive testimony attacking the credibility of O.B.’s out-of-

court statements and her trial testimony.

Even if we were to disregard this principle, we would uphold the

trial court’s decision because what Okla was offering, i.e., the

observation that this young child, like any young child, might be

influenced by suggestive questioning and improper investigative

techniques, is not a matter beyond the ken of the average juror. The

operative principles are matters of common knowledge and are not

difficult to understand. Couching these principles in technical terms

does not render them otherwise. Certainly, the concepts involved are

familiar to the average citizen and no more difficult to understand than

that at issue in Gilliam.

In Gilliam, defendant claimed that the trial court erroneously

limited the evidence he could present to the jury on the circumstances

surrounding his confession. In an offer of proof, Dr. Michael Althoff,

an examining psychologist, opined that defendant’s desire to protect

his family made him especially susceptible to police pressures and

created a form of psychological compulsion to confess. Thus,

according to Althoff, defendant’s confession was the product of

psychological coercion. The trial court granted the State’s motion in

limine to limit Althoff’s testimony. The court ruled that Althoff could

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testify on defendant’s mental state or condition, but could not testify

on the circumstances surrounding the voluntariness or competency of

defendant’s confession.

Describing a procedure with some parallels to the section 115–10

procedure employed in this case, this court noted that “the

admissibility of a confession that is challenged on the ground that it is

involuntary is a matter for the trial court to determine in the first

instance out of the presence of the jury. If the court rules that the

confession is voluntary and admissible in evidence, the defendant still

has the right to present evidence to the jury that affects the credibility

or weight to be given the confession.” Gilliam, 172 Ill. 2d at 512-13.

In the end, this court held that the trial court properly exercised its

discretion in limiting the trial testimony of Dr. Althoff. “Whether

defendant falsely confessed to protect his family is not a concept

beyond the understanding of ordinary citizens, and is not difficult to

understand or explain. [Citations.] Further, we note that defendant

was not precluded from challenging the credibility of his confession.

The jury could have reached the same conclusion as Dr. Althoff based

on the facts imparted through the testimony of other witnesses.”

Gilliam, 172 Ill. 2d at 513.

The same is true here. Defendant could have apprised the jury of

the circumstances surrounding O.B.’s statements through other

witnesses both on direct and cross-examination. Counsel in fact did

that and, in summation, discussed, in laymen’s terms, the very

principles Okla would have testified to. As for the principles of

psychological suggestion defendant would have had Okla testify to,

we fail to see how they are different, in any significant way, from the

principles of psychological coercion at issue in Gilliam–principles that

this court deemed within the ken of the average juror.

Notwithstanding defendant’s arguments otherwise, we believe it is a

matter of common understanding that children are subject to

suggestion, that they often answer in a way they believe will please

adults, and that they are inclined to integrate fictional notions with

reality as we know it. Are citations to scientific studies necessary to

apprise jurors of these tendencies? We think not. We need only cite as

an example O.B.’s claim that defendant at one time had a blue

microphone stuck in his head and that Amy succeeded in pulling it

out. In our opinion, defendant’s argument as to the necessity of Okla’s

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testimony is yet another instance of a defendant who would exalt the

role of the “expert” beyond its warranted dimensions. In the process,

he implicitly seeks “to discredit the common sense and intelligence of

those who served on the jury” (see People v. Urdiales, 225 Ill. 2d

354, 445 (2007)), which is a cornerstone of our system of justice.

The testimony of Dr. Okla was not necessary to make defendant’s

points. The limited probative value of her testimony–limited, that is,

in light of the jurors’ common knowledge in this area–was outweighed

by the prejudice she would have interjected into the trial–commenting

extensively and directly on circumstances purportedly affecting the

mental processes and credibility of another witness, whom she had

never even interviewed, and, for all practical purposes, telling the

jurors that that witness’s testimony should be disregarded. Given the

facts of this case, the trial court’s decision to exclude Okla’s testimony

was not “arbitrary, fanciful or unreasonable.” See Illgen, 145 Ill. 2d

at 364. The appellate court erred in holding otherwise.

As for the testimony of Amy’s friend, Olga Reyes, regarding

statements made by O.B. on September 19, 2003, we need not

address the admissibility thereof as their admission at trial was

harmless, assuming, arguendo, it was error at all.

Defendant argues that we should not address harmless error

because the State did not specifically mention harmless error in its

petition for leave to appeal, wherein the State argued that the

appellate court erred in finding that the trial court’s exclusion of

Okla’s testimony at trial was an abuse of discretion, and that the

appellate court erred in finding that the trial court should have

excluded O.B.’s hearsay statement of September 19. As we explained

in In re Rolandis G., 232 Ill. 2d 13, 37 (2008), “the failure to raise an

issue in a petition for leave to appeal is not a jurisdictional bar to this

court’s ability to review a matter.” When an issue is not specifically

mentioned in a party’s petition for leave to appeal, but it is

“inextricably intertwined” with other matters properly before the

court, review is appropriate. People v. McKown, 236 Ill. 2d 278 , 310

(2010); Rolandis G., 232 Ill. 2d at 37. In this instance, we find that

the consequence of admitted evidence is inextricably intertwined with

the propriety of its admission.

Defendant also argues that the State’s treatment of harmless error

in its brief is insufficient to warrant our consideration of the matter.

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We disagree. Citing, with explanation, our decision in Rolandis G.,

the State contends, “given the appellate court’s finding that the

content of the statements was ‘cumulative’ of other evidence ***, if

admission of the September 19, 2003 statements was error, it was–by

definition–a harmless one.” We find this argument is adequate and in

fact dispositive here.

As we noted in Rolandis G., when deciding whether error is

harmless, a reviewing court may (1) focus on the error to determine

whether it might have contributed to the conviction; (2) examine the

other properly admitted evidence to determine whether it

overwhelmingly supports the conviction; or (3) determine whether the

improperly admitted evidence is merely cumulative or duplicates

properly admitted evidence. O.B.’s September 19 statements fall into

the third category. The testimony of Amy’s friend, Olga Reyes, added

nothing new for the jury’s consideration. The jury was otherwise

informed of O.B.’s statements that her father had hurt her “front

bottom” through Amy’s testimony regarding O.B.’s initial statement–a

statement as spontaneous as, and more detailed than, the September

19 statements, and one uttered immediately after the abuse. The

videotaped interview with Detective Eddlemon also contained more

detail than O.B.’s subsequent statements. Defendant argues that the

September 19 statements add “a new-found fear of [the victim’s]

father” that is not evinced in her earlier statements. While that may be

true, it would hardly be revelatory, as the only basis for fear would

have been the action of defendant in hurting her, which she mentioned

in her earlier statements, and in the very statement at issue. The

average citizen serving on a jury understands that. We find that

admission of the September 19, 2003, statement was harmless as

cumulative and duplicative of properly admitted evidence, assuming,

arguendo, it was error at all.

With respect to the other issues that were addressed by the

appellate court–the dispositions of which are not matters of

discussion, controversy, or briefing here–we find no basis for

disagreement. Those assessments include the appellate court’s finding

that the evidence, when viewed in the light most favorable to the

State, was sufficient to prove defendant guilty beyond a reasonable

doubt.

For the foregoing reasons, the judgment of the appellate court is

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reversed, and that of the circuit court affirmed.

Appellate court judgment reversed;

circuit court judgment affirmed.

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