People v. Stechly

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 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 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 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.” 225 Ill. 2d at 313. 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. 225 Ill. 2d at 313-14. 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.” 225 Ill. 2d at 314. 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. 225 Ill. 2d at 314-15. In fact, the plurality’s final word on the matter is “[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.” (Emphasis in original.) 225 Ill. 2d at 315. 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. 225 Ill. 2d at 254. 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.

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

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. 225 Ill. 2d at 290-91. Significantly, “[t]he declarantcentered 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.’ ” 225 Ill. 2d at 291, 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. 225 Ill. 2d at 292.

The plurality, however, concludes that the Supreme Court’s recent decision in Davis v. Washington, 547 U.S. 813 , 165 L. Ed. 2d 224 , 126 S. Ct. 2266 (2006), modified or clarified the analysis with respect to statements made to government officials. 225 Ill. 2d at 267. According to the plurality, Davis held that the intent of a police officer in taking a statement determines whether the statement is testimonial. 225 Ill. 2d at 267. 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 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 822 , 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 822 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.” 225 Ill. 2d at 290. 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.” 225 Ill. 2d at 296. 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.

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. 225 Ill. 2d at 295-96. 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 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.

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.” 225 Ill. 2d at 282. 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 would anticipate that her statement likely would be used in a prosecution.

I would, therefore, find that M.M.’s statements to her mother, Grote, and Yates were testimonial. The admission of those statements violated the confrontation clause because defendant did not have a prior opportunity to cross-examine M.M.

I agree with the plurality that admission of the statements in violation of the confrontation clause cannot be deemed harmless error. I also agree with the portion of the plurality opinion addressing forfeiture by wrongdoing.

III. Conclusion

In my opinion, this appeal should have been decided based solely on the section 115 — 10 issue. See Lee, 214 Ill. 2d at 482 (constitutional questions should be avoided if a case can be decided on other grounds). The hearsay exception in section 115 — 10 was not satisfied because the evidence did not establish that M.M. was unavailable to testify. M.M.’s statements to her mother, Grote, and Yates should have been excluded as inadmissible hearsay. Defendant’s convictions should be reversed and the cause remanded for a new trial without admission of those hearsay statements.

I also disagree with the plurality’s analysis of the confrontation clause claim. While the plurality holds that only the statements to Grote and Yates were testimonial, I would hold that those statements as well as the one to M.M.’s mother were testimonial and should not have been admitted without satisfying the requirements of the confrontation clause. Nonetheless, I agree with the plurality’s ultimate judgment on the confrontation clause claim reversing defendant’s convictions and remanding the cause for a hearing on forfeiture by wrongdoing.

In this case, the other members of this court are divided and without my vote for one of their positions it would not be possible to secure the constitutionally required concurrence of four judges for a decision (see Ill. Const. 1970, art. VI, §3). This appeal would be dismissed with the effect being the same as an affirmance by an equally divided court of the decision under review. See People v. Griffith, 212 Ill. 2d 57, 58 (2004), citing Perlman v. First National Bank of Chicago, 60 Ill. 2d 529, 530 (1975). In my opinion, affirming the appellate court’s decision upholding defendant’s convictions is not the appropriate result, particularly given that Crawford was not decided until after the appellate court rendered its decision. Defendant, therefore, did not have the opportunity to present his claim based upon Crawford in the appellate court, and he would be denied any relief on that claim if the appellate court judgment were simply affirmed. Thus, I reluctantly concur specially in the judgment on the confrontation clause claim reversing defendant’s convictions and remanding the cause for a hearing on forfeiture by wrongdoing. I respectfully dissent on the section 115 — 10 issue.