People v. Stechly

CHIEF JUSTICE THOMAS, dissenting:

I agree with the plurality’s conclusion that the child’s statement to her mother was admissible. I also agree with the conclusion that the child’s statements to Grote and Yates were “testimonial” under the Crawford/Davis framework.

I dissent because I believe that the plurality wrongly holds that the child’s statements to Grote and Yates amounted to reversible error and were not harmless in light of the overwhelming evidence against defendant that was properly admitted. I also disagree with the plurality’s analysis of the forfeiture-by-wrongdoing issue. I believe it should have been unnecessary to address the forfeiture issue given that the admissions of the improper statements were harmless error. Assuming arguendo that the forfeiture issue had to be addressed, however, I would find that the cause should be remanded for a determination of whether defendant forfeited his confrontation rights by his own wrongdoing, but I would not limit that inquiry, as the plurality does, to the consideration of whether defendant intended to threaten the victim into not testifying. For all of these reasons and as more fully explained below, I respectfully dissent.

I. Forfeiture by Wrongdoing

The plurality concludes that the doctrine of forfeiture by wrongdoing focuses on a defendant’s intent rather than his wrongdoing. Under the plurality’s view, a defendant should be able to escape the common law forfeiture doctrine if his motive for assaulting the victim did not include preventing the victim from later testifying as a witness. I do not believe that this is a correct application of the doctrine.

There is no requirement of intent when it is the defendant’s assault or murder of the victim that causes the witness’ unavailability. United States v. Garcia-Meza, 403 F.3d 364, 370 (6th Cir. 2005) (“There is no requirement that a defendant who prevents a witness from testifying against him through his own wrongdoing only forfeits his right to confront the witness where, in procuring the witness’s unavailability, he intended to prevent the witness from testifying”); People v. Giles, No. S129852 (March 5, 2007).

In Giles, the Supreme Court of California recently conducted an extensive discussion of the common law forfeiture doctrine and held that a defendant forfeits his confrontation rights if the witness is genuinely unavailable to testify and “the unavailability [is] caused by defendant’s intentional criminal act.” Giles, slip op. at 25. The Giles court further held that there is no requirement that the defendant intend to prevent the witness from testifying when committing the criminal act. Giles, slip op. at 18. In so holding, the California Supreme Court adopted the reasoning of its Court of Appeal, stating that

“ ‘[florfeiture is a logical extension of the equitable principle that no person should benefit from his own wrongful acts. A defendant whose intentional criminal act renders a witness unavailable for trial benefits from his crime if he can use the witness’s unavailability to exclude damaging hearsay statements by the witness that would otherwise be admissible. This is so whether or not the defendant specifically intended to prevent the witness from testifying at the time he committed the act that rendered the witness unavailable.’ ” Giles, slip op. at 18-19.

Other courts have applied forfeiture in cases where the defendant is charged with the same homicide that rendered the witness unavailable, rather than with some underlying crime about which the victim was going to testify. See United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999); United States v. Miller, 116 F.3d 641, 667-68 (2d Cir. 1997); State v. Meeks, 277 Kan. 609, 615 , 88 P.3d 789, 794 (2004).

The plurality claims that the lone policy behind the forfeiture doctrine is to deter witness intimidation and that this purpose is not served if the doctrine is applied in the absence of an intent to prevent testimony because it is “after all, impossible to deter those who do not act intentionally.” 225 Ill. 2d at 270. But the true purpose behind the common law doctrine of forfeiture by wrongdoing is broader than the plurality recognizes and should not be confused with the federal statutory hearsay exception, which does have the limited purpose of addressing witness intimidation. In that regard, Federal Rule of Evidence 804(b)(6) provides a statutory hearsay exception for “[a] statement 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). Obviously, this provision requires an intent to prevent the witness from testifying. The historical impetus behind the rule indicates that it was designed to deter the incentive to tamper with witnesses (Fed. R. Evid. 804(b)(6), Advisory Committee’s Note), especially in the area of gang or organized crime, which was thought to be on the increase in the 1980s and early 1990s just prior to the rule’s promulgation (L. Birdsong, The Exclusion of Hearsay Through Forfeiture by Wrongdoing — Old Wine in a New Bottle — Solving the Mystery of the Codification of the Concept into Federal Rule 804(b)6, 80 Neb. L. Rev. 891 , 905-07 (2001)). See also People v. Giles, slip op. at 9-10 (Federal Rule 804(b)(6) is simply an expression of the rule applied in the glut of witness tampering cases that began to appear in the 1960s and 1970s when the federal government began placing greater emphasis on the prosecution of organized crime and drug activity).

In contrast to the statutory hearsay exception of the federal rule, the common law doctrine of forfeiture by wrongdoing has a broader grasp. The United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 62 , 158 L. Ed. 2d 177, 199 , 124 S. Ct. 1354, 1370 (2004), noted that “the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds.” Crawford never mentioned Rule 804(b)(6), but instead referred to the common law doctrine, reaching all the way back to the 132-year-old case of Reynolds v. United States, 98 U.S. 145 , 25 L. Ed. 244 (1879). Reynolds emphasized that the common law rule “has its foundation in the 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 . By reaching back to the common law underpinnings of the doctrine rather than simply referring to the federal rule, Crawford is strong support for the position that intent to prevent a witness from testifying is not always required for application of the common law forfeiture doctrine. Steele v. Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982), explained that the common law forfeiture doctrine has dual purposes: in addition to being a strong incentive to prevent witness tampering, it is also based on something similar to the equitable doctrine of clean hands. Steele elaborated on the broader purposes of the doctrine as follows: “The law prefers live testimony over hearsay, a preference designed to protect everyone, particularly the defendant. A defendant cannot prefer the law’s preference and profit from it, as the Supreme Court said in Reynolds, while repudiating that preference by creating the condition that prevents it.” Steele, 684 F.2d at 1202 .

The Sixth Circuit Court of Appeals emphatically debunked the notion that a defendant must always intend to prevent a witness from testifying before losing his confrontation rights on account of his wrongdoing, explaining that

“[t]hough the Federal Rules of Evidence may contain such a requirement [of intent], see Fed. R. Evid. 804(b)(6), the right secured by the Sixth Amendment does not depend on, in the recent words of the Supreme Court, ‘the vagaries of the Rules of Evidence.’ Crawford, 124 S. Ct. at 1370 . The Supreme Court’s recent affirmation of the ‘essentially equitable grounds’ for the rule of forfeiture strongly suggests that the rule’s applicability does not hinge on the wrongdoer’s motive. The Defendant, regardless of whether he intended to prevent the witness from testifying against him or not, would benefit through his own wrongdoing if such a witness’s statements could not be used against him, which the rule of forfeiture, based on principles of equity, does not permit.” Garcia-Meza, 403 F.3d at 370-71 .

The plurality claims that the forfeiture doctrine applied in Reynolds was “extremely narrow” and that the case “unequivocally imposed an ‘intent’ requirement.” 225 Ill. 2d at 271. The plurality is wrong on both counts.

The doctrine applied in Reynolds was not narrow. Rather, the Court merely employed language targeted to address the specific facts presented to it, before turning to the broader purposes of the forfeiture doctrine. The plurality relies on the specific language to the exclusion of the general, and thereby misinterprets the forfeiture doctrine.

In Reynolds, the defendant was indicted on a bigamy charge in the Territory of Utah. The government wanted to call one of defendant’s alleged wives as a witness, but when the subpoena was delivered, the defendant told the officer that the subject was not home, that he would not tell the officer where she was, and that she would not appear in the case. Unable to locate the witness on a return visit the next day, the government immediately attempted to introduce her prior testimony from a former bigamy trial involving the same defendant. The court allowed the testimony, and the defendant was convicted. The defendant eventually appealed to the United States Supreme Court, contending that the admission of the testimony violated his confrontation rights.

The Supreme Court affirmed the defendant’s conviction, noting that

“[t]he Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against 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 Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him 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.” Reynolds, 98 U.S. at 158 , 25 L. Ed. at 247 .

The above-quoted language is specific to the facts and does not attempt to explain the general parameters of the common law forfeiture doctrine in all cases. Later in its analysis, however, Reynolds did turn to the general, equitable basis for the rule:

“The rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong; and, consequently, if there has not been, in legal contemplation, a wrong committed, the way has not been opened for the introduction of the testimony. We are content with this long-established usage, which, so far as we have been able to discover, has rarely been departed from. It is the outgrowth of a maxim based on the principles of common honesty, and, if properly administered, can harm no one.” Reynolds, 98 U.S. at 159 , 25 L. Ed. at 248 .

Unlike the plurality, most courts have not interpreted Reynolds as fashioning an “intent” requirement. See, e.g., 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. Natson, 444 F. Supp. 2d 1296 (M.D. Ga. 2006) ; Grayson v. Carey, No. 2:03—cv—1694—MCE—KJM (E.D. Cal. 2006); People v. Giles, No. S129852 (March 5, 2007); Gonzalez v. State, 155 S.W.3d 603, 610 (Tex. App.—San Antonio 2004); State v. Meeks, 277 Kan. 609 , 88 P.3d 789 (2004); People v. Vasquez, No. 04CA0729 (Colo. App. November 30, 2006), cert. granted, No. 07SC50 (March 26, 2007); State v. Brooks, No. W200—02834—CCA—R3—CD (Tenn. Crim. App. August 31, 2006) (unpublished order), leave to appeal granted (January 26, 2007); People v. Bauder, 269 Mich. App. 174, 184-85 , 712 N.W.2d 506 , 513-14 (2005); State v. Moore, 117 P.3d 1 (Colo. App. 2004); Commonwealth v. Salaam, 65 Va. Cir. 405 (2004). Giles is representative of the above-authority in noting that Reynolds “did not suggest that the rule’s applicability hinged on [the defendant’s] purpose or motivation in committing the wrongful act.” Giles, slip op. at 8.

The plurality vigorously argues that the federal rule codified the common law rule in all respects, thereby settling the question of whether intent is always required in every case. For this proposition, the plurality relies upon language from Davis v. Washington, 547 U.S. 813, 833 , 165 L. Ed. 2d 224, 244 , 126 S. Ct. 2266, 2280 (2006), where the Court stated in passing that it was taking “no position on the standards necessary to demonstrate *** forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard. ’ ’

The language relied upon by the plurality is clearly dicta insofar as it can be claimed to support a requirement of intent. Davis did not in any way purport to settle the question of whether intent is required when it is the assault or murder of the witness that causes the witness’s unavailability. It was not even argued in Davis that the witness was unavailable due to any specific conduct on the part of the defendant. Nor was it argued that the witness was unavailable as a result of a direct assault or murder of the victim. Rather, the government, joined by various amici, made only a general argument that domestic violence cases require greater flexibility in the use of testimonial statements because the crime is “notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial.” Davis, 547 U.S. at 833 , 165 L. Ed. 2d at 244 , 126 S. Ct. at 2279-80 . It was in responding to this general argument that the Court noted that “when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce.” Davis, 547 U.S. at 833 , 165 L. Ed. 2d at 244 , 126 S. Ct. at 2280 . There is nothing remarkable about this statement given the context in which it was made and that all prior precedent is in agreement. 4 Thus, Davis does not “strongly connote” a requirement of intent, as the plurality claims, when it is the assault or murder of the witness that directly causes the witness’ unavailability. See 225 Ill. 2d at 272.

The plurality leaves out from its block quote of Davis (see 225 Ill. 2d at 271) the rest of the paragraph it is quoting from, which goes on to state: “We reiterate what we said in Crawford: that ‘the rule of forfeiture by wrongdoing ... extinguishes confrontation claims on essentially equitable grounds.’ [Citation.] That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” Davis, 547 U.S. at 833 , 165 L. Ed. 2d at 244 , 126 S. Ct. at 2280 . The plurality does note this principle at the beginning of its analysis, but then abandons it. Unfortunately, the language the plurality abandons is the core principle on which the forfeiture-by-wrongdoing doctrine rests. That it encompasses the more narrower concern of witness intimidation does not negate its broader application.

Cases that have been decided after Davis do not interpret its language the same way that the plurality does. Recent cases have held that Davis does not impose a requirement that a defendant intend to prevent a witness from testifying in every case before the common law forfeiture doctrine may be applied. Giles, slip op. at 8, 18 (Davis reaffirmed the equitable nature of the forfeiture doctrine and does not require an intent requirement in nonwitness-tampering cases); United States v. Natson, 444 F. Supp. 2d 1296 (M.D. Ga. 2006) (the common law forfeiture doctrine is broader than the federal hearsay exception, as it provides that a defendant who eliminates a witness forfeits any constitutional right to confront that witness regardless of defendant’s motive); People v. Vasquez, No. 04CA0729 (Colo. App. November 30, 2006) (neither Davis nor Reynolds impose a requirement of intent under the common law forfeiture by wrongdoing doctrine adopted by Crawford); State v. Brooks, No. W2004—02834—CCA—R3—CD (Tenn. Crim. App. August 31, 2006) (unpublished order) (unlike the statutory hearsay exception, the common law forfeiture by wrongdoing doctrine is applied regardless of defendant’s intent in committing a homicide), leave to appeal granted (Jan. 26, 2007); Grayson v. Carey, No. 2:03—cv—1694—MCE— KJM, slip op. at 2, 18-19 (E.D. Cal. August 10, 2006) (once a court has found as a preliminary matter that the defendant’s conduct caused the witness’ absence, the Reynolds court would recognize that there is no error in admitting the absent witness’ testimony even where the defendant argues that his assault of the victim was without “premeditation or malice”).

The plurality acknowledges that the vast majority of courts hold intent irrelevant when it is the murder of the witness that causes the witnesses unavailability and the defendant is on trial for that very murder. The plurality claims that these cases are distinguishable because they all predate Davis. But Giles, Natson, Vasquez, Brooks and Grayson — all holding intent irrelevant — were all decided after Davis.

The plurality also claims that the present case is distinguishable because the witness was not murdered, but only assaulted, and murder is different because “a defendant knows with absolute certainty that a murder victim will not be able to testify” and intent can therefore be presumed. See 225 Ill. 2d at 277. The plurality cites no authority for this proposition, probably because it makes no sense. Many times the conduct that leads to a homicide is committed without an “absolute certainty” that the conduct will result in death, yet alone that it will result in the would-be witness being unable to testify. It is disturbing that under the plurality’s approach, if a defendant assaulted a victim by hitting him over the head and the victim subsequently died from his injuries, statements made by the victim before he died would be admissible at the murder trial. But if instead of dying the same victim went into a coma and remained permanently on life support, any statements made before the victim went into the coma would not be admissible at a trial for battery or attempted murder. Additionally, the plurality’s argument on this point is inconsistent with its claim that the federal rule of evidence “codified” the common law doctrine.

The plurality also emphasizes that most, if not all, of the cases to hold intent irrelevant involved the death of the victim. But this is obviously because it is a much rarer case for the victim to somehow survive a defendant’s attack and yet be unavailable to testify within the meaning of the sixth amendment. Wisely, the chief authority I discuss above does not limit the forfeiture rule’s application to cases involving the death or murder of the victim. See United States v. Garcia-Meza, 403 F.3d 364 (6th Cir. 2005) (defendant’s wrongdoing must merely prevent the witness’ unavailability); People v. Giles, slip op. at 25 (the rule applies when the witness is “genuinely unavailable to testify” and “the unavailability is caused by the defendant’s intentional criminal act”).

Aside from domestic violence cases, most crime victims that are not killed would want to testify against their assailants, provided they are left physically and mentally capable of doing so. Domestic violence cases are different, however, because those cases have a low victim-cooperation rate, which is usually due to either a general fear of the defendant or some remaining partiality on the victim’s part toward the defendant. It is not that the assault itself has left the victim physically or mentally incapacitated. In sum, there is often an insufficient causal connection between the wrongdoing and the unavailability for application of the forfeiture doctrine in domestic violence cases absent a showing that the defendant intended to prevent the witness from testifying in connection with his conduct. It is also questionable whether a domestic violence victim who simply refuses to testify without any reason offered by the State is truly “unavailable” within the meaning of the confrontation clause. For all of these reasons, it is not surprising that the cases that find intent irrelevant usually involve the murder of the victim.

In a footnote, the plurality does cite one nonhomicide case where the forfeiture doctrine was at issue — State v. Henderson, 35 Kan. App. 2d 241, 253 , 129 P.3d 646, 654 (2006), leave to appeal granted, No. 92251 (September 19, 2006) — a child sex abuse case where the court required intent. See 225 Ill. 2d at 276 n.2. But Henderson is easily distinguishable from the situation before us. The child in Henderson was unavailable solely because of her age — she was only three years old and was unable to understand the proceedings, the questions asked, and her duty to testify truthfully. Unlike the present case, there was no causal connection established between the defendant’s assault and the witness’ unavailability. See Henderson, 35 Kan. App. 2d at 253-54 , 129 P.3d at 655 (the court noted that “[cjausation between the action of the defendant and the witness’ absence appears key” and the State did not cite any authority showing that the doctrine of forfeiture had been applied solely due to age). Thus, Henderson is actually consistent with my argument.

The plurality cites People v. Melchor, 362 Ill. App. 3d 335, 351 (2005), appeal allowed, 218 Ill. 2d 551 (2006) (table), to imply that it might support a rule that does not require “intent” if the defendant’s wrongdoing results in the death of the victim. Melchor noted in dicta that a defendant on trial for the actual murder of the witness whose out-of-court testimony the prosecution wishes to present should clearly not be allowed to escape the forfeiture-by-wrongdoing doctrine based on his lack of a motive to prevent testimony when he killed the victim. Melchor observed that “[s]uch a rule is certainly logical; otherwise, defendants would be able to profit from their own wrongdoing. ‘ “[W]hen confrontation becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived.” ’ ” Melchor, 362 Ill. App. 3d at 351 , quoting Devonshire v. United States, 691 A.2d 165, 168 (D.C. App. 1997). Melchor went on to state that this exception to the intent requirement should only be applied in the situation described above and not where the defendant is “not on trial for killing the individual whose testimony the prosecution sought to admit.” Melchor, 362 Ill. App. 3d at 351 .

There is no principled basis, however, for distinguishing between situations where the witness is unavailable because of a murder committed by a defendant from situations where the witness is unavailable because of an assault committed by a defendant. A witness can be just as unavailable to testify regardless of whether a defendant’s assault leaves the witness dead, or in a comatose state on life support, or in some way mentally or emotionally incapable of testifying. See Parrot v. Wilson, 707 F.2d 1262 (11th Cir. 1983) (witness suffering from mental condition was properly declared unavailable where it was unlikely her condition would improve in the next six months).

The key inquiry should be on whether or not it is the defendant’s wrongdoing that has prevented the witness from testifying when it is the defendant’s assault or murder of the would-be witness that causes her unavailability. The equitable doctrine of forfeiture by wrongdoing simply does not allow a defendant to profit from wrongdoing that prevents a witness’ testimony in such a case, and this is true regardless of motive and regardless of whether the victim is left dead or alive. All that should be required is a direct causal connection between the wrongdoing (the assault) and the unavailability. The plurality’s contrary approach in requiring a specific intent to prevent testimony when committing the crime allows a defendant to convert a constitutional shield into a sword.

The two federal cases cited by the plurality are not helpful to its position. See Steele, 684 F.2d at 1202 ; United States v. Thompson, 286 F.3d 950 (7th Cir. 2002). Steele, discussed above, noted the dual purposes of the common law doctrine in a case where a defendant purposely intimidated a witness, so the court did not have occasion to address whether intent was required for application of the doctrine.

Thompson is also inapplicable. There, the court never addressed the common law doctrine of forfeiture by wrongdoing. Instead, the court only entertained the government’s limited argument based on Federal Rule of Evidence 804(b)(6), which by its plain language requires intent. See Thompson, 286 F.3d at 961-62 . Furthermore, Thompson was decided over two years before Crawford “accepted” the common law doctrine and noted that the sixth amendment right does not depend on “the vagaries of the rules of evidence.” Crawford, 541 U.S. at 61 , 158 L. Ed. 2d at 199 , 124 S. Ct. at 1370 .

For similar reasons, the two out-of-state cases relied upon by the plurality — Commonwealth v. Edwards, 444 Mass. 526 , 830 N.E.2d 158 (2005), and State v. Alvarez-Lopez, 136 N.M. 309 , 98 P.3d 699 (2004) — also do not support its position. In Edwards, the Massachusetts Supreme Court held that when a defendant colludes with a witness to procure the witness’ unavailability, the defendant forfeits his confrontation rights the same as if he had intimidated the witness. Edwards, 444 Mass, at 539-40, 830 N.E.2d at 170 . The court did not consider whether a defendant must intend to prevent a witness from testifying when it is the assault or murder of the victim that renders the victim unavailable to testify. In Alvarez-Lopez, the New Mexico Supreme Court considered the forfeiture doctrine only in the context of Federal Rule of Evidence 804(b)(6). Alvarez-Lopez, 136 N.M. at 314 , 98 P.3d at 704 . Moreover, the situation there is easily distinguishable because it did not involve an assault or murder of the victim, but instead the “wrongdoing” at issue was that the defendant made himself a fugitive from justice for seven years. Thus, the court found that there was a lack of a sufficient causal connection between the defendant’s “wrongdoing” and the witness’ unavailability. Alvarez-Lopez, 136 N.M. at 314 , 98 P.3d at 704 . A lack of a causal connection is not an issue, however, where it is the defendant’s direct assault or murder of the witness that causes the unavailability.

Some might suggest that if forfeiture by wrongdoing is applied to cases where the defendant is on trial for the very crime that has rendered the witness unavailable, the trial court will be required to essentially conclude, as a predicate for admissibility of the evidence, that the defendant is guilty of the very crime with which he is accused. The supreme courts of the states of California and Kansas have recently rejected this precise argument. See People v. Giles, No. S129852 (March 5, 2007); State v. Meeks, 277 Kan. 609, 615 , 88 P.3d 789, 794 (2004). This so-called “bootstrapping problem” does not undermine the equitable reasons for the forfeiture doctrine, does not present the trial court with any undue procedural difficulty, nor does it preclude it from determining the preliminary facts necessary for an evidentiary ruling merely because they coincide with an ultimate issue in the case. See Giles, slip op. at 22. A court can determine forfeiture as a preliminary factual issue as it would with any other hearsay statement, and assuming the grounds for forfeiture have been proven by a preponderance of the evidence, the court will admit the evidence. Giles, slip op. at 22. This ruling will not infringe in any way upon the ultimate question for the jury’s resolution— whether the defendant is guilty beyond a reasonable doubt of the crime charged. Giles, slip op. at 22. I agree with the Meeks and Giles courts’ assessments and would adopt their analyses.

For all of the above reasons, I would remand for an evidentiary hearing on the forfeiture question, but I would not limit it to a determination of whether defendant threatened the victim into not testifying, as the plurality does. Instead, I would have the inquiry center on whether the witness was unavailable due to defendant’s wrongdoing. Here, the record is replete with facts indicating a causal connection between defendant’s wrongdoing and the unavailability of the witness. Dr. Machonkin testified that the victim of tender age was psychologically traumatized because of the assault, that her symptoms would reemerge if she should be called to testify, and that in the doctor’s expert opinion, the victim was legally unavailable to testify. Under these facts, whether defendant forfeited his confrontation rights with respect to the victim’s statements because of his own wrongdoing should be a factual question to be determined by the trial court in the first instance.

Having explained how I would resolve the forfeiture-by-wrongdoing issue differently than the plurality, I further note that I would not have addressed the issue in the first place because I would have found that the admissions of the child’s statements to Grote and Yates were harmless. Thus, I would affirm defendant’s conviction without any remand for further proceedings or a new trial.

II. Harmless Error

The plurality acknowledges that Crawford violations are subject to a harmless error analysis and that the test to be applied is “whether it appears beyond a reasonable doubt that the error at issue did not contribute to the verdict obtained.” 225 Ill. 2d at 304. This court has identified three approaches for measuring error under that test, which are as follows: (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 was merely cumulative or duplicates properly admitted evidence. People v. Patterson, 217 Ill. 2d 407, 428 (2005), citing People v. Wilkerson, 87 Ill. 2d 151, 157 (1981). The plurality believes that the evidence was close and that it could not decide beyond a reasonable doubt that the improper evidence did not contribute to the verdict. But I believe that the opposite conclusion is apparent when considering the other evidence that was properly admissible.

The plurality concludes, as I do, that the child’s statement to her mother on the way to the hospital was correctly admitted. See 225 Ill. 2d at 301-02. With respect to that statement, the mother testified that she held her daughter close in the backseat of the car and asked her what had happened. The child responded that she and “Robert Stechly” were laying in bed and had taken a nap. The child then described an incident of sexual abuse committed by defendant against her, stating that “there was white stuff coming out of his pee pee,” and that he pushed her head down to make her taste it. The child also told her mother that defendant said that if she told about the incident, he would hurt her. Thus, it is not surprising that the child spoke quietly enough so that the conversation was not heard in the front seat of the car. The other statements to Grote and Yates were essentially cumulative of the one to the mother.

The plurality’s fixation on the fact that the child did not refer to defendant by his full name to babysitter Galete attempts to obfuscate that the child did clearly identify her assailant to her mother. The plurality’s argument on this point is inconsistent. On the one hand, the plurality is trying to emphasize that there are other people named Bob in the child’s life, but then when the child specifically identifies a particular Bob, the plurality wants to discredit that identification by claiming that it is “not logical” for the child to identify her assailant by his full name to someone she knows. I fail to see the logic in the plurality’s argument. But more importantly, the plurality does not persuasively explain why defendant’s confession does not clear up any possible doubt.

The plurality admits the strong similarity between the properly allowed statements to the mother and Galete and the improperly admitted statements to Grote and Yates, but in an odd non sequitur concludes that the similarity renders the statements noncumulative. See 225 Ill. 2d at 306. It claims that a new trial is warranted because the similarity of the statements served to strongly reinforce their believability. 225 Ill. 2d at 309.

The plurality’s conclusion is peculiar because it completely ignores that the believability of the child’s statement to her mother was strongly reinforced by other competent testimony and evidence presented in the case. The plurality seems to be creating a new harmless error standard that holds that if some compelling additional evidence of defendant’s guilt is thrown out, a defendant is entitled to have his conviction reversed even if the remaining evidence is overwhelming and the discarded evidence is cumulative. This, of course, is not and should not be the law.

Turning to the other compelling and properly admitted evidence in the case in addition to the child’s statement to the mother, I note that defendant himself presented the testimony of Brenda Galete, the child’s babysitter during the relevant period. Her testimony corroborated the testimony of the mother, and certainly reinforced the believability of the child’s statements. On cross-examination, Galete testified that on January 13, 1999, she had a conversation with the child in which the child told her that “Bob” had “pushed her head down on his penis and made her lick stuff from his penis and that it was sour and bitter.” The child did not like the taste of it so she washed her mouth out. The child also said that she was afraid and repeatedly said that she did not want to do it. Galete then relayed all this information to police investigator Radz. Galete further testified that the child did not specify which “Bob” had abused her. Finally, Galete noted that two years had now passed since her conversation with the child and with investigator Radz, and Galete could not now remember whether she had told the investigator whether or not the “Bob” the child referred to was the mother’s boyfriend. Radz, however, testified that Galete had told him that the “Bob” the child referred to was the mother’s boyfriend. It was undisputed that defendant was the mother’s boyfriend at the relevant time.

The plurality acknowledges that the child’s description of the crime to babysitter Galete was very similar to what the child told her mother, which was also very

similar to the details confessed to by defendant. But the plurality ignores this great similarity by venturing off to remark that there was “a reason that Galete was a witness for the defense, rather than for the prosecution.” 225 Ill. 2d at 306.1 agree that there was a reason Galete was called as a witness for the defense. But that reason is not the one the plurality implies. Galete was called by the defense because she was unsure whether the child’s reference to “Bob” as her abuser referred to defendant. Even though Galete’s testimony favored the prosecution in light of the whole record, defendant took the chance of calling her in hopes of supporting his incredible trial testimony that he only confessed to the crime in accurate detail because he thought the police would discover the real truth later. Defendant’s detailed confession to the serious and embarrassing conduct involved here is enough to dispel all doubts that defendant was the “Bob” the child identified.

The plurality adopts defendant’s argument that there was some confusion over whether defendant was the “Bob” referred to in the child’s statements. But I believe that defendant’s written confession to police, which was properly admitted, dispels beyond a reasonable doubt any possible confusion about whether defendant was the perpetrator of the crime. Before making oral and written confessions to the police that acknowledged sexual contact with the child, defendant was informed of his Miranda rights several times, which included the following warning: “What you say can and will be used against you in a court of law ” See Miranda v. Arizona, 384 U.S. 436, 469 , 16 L. Ed. 2d 694, 720-21 , 86 S. Ct. 1602, 1625 (1966) (the right to remain silent must be accompanied by the explanation that “anything said can and will be used against the individual in court”). Defendant testified that he understood the rights explained to him and that he voluntarily gave his written confession. This is not a case where defendant challenged his confession as involuntary. Before giving his written confession, defendant broke down and wept and acknowledged that he sexually assaulted the child. Defendant’s written statement then recounted an incident of oral sex with the child, but outrageously claimed that it was instigated by the child after they awoke from a nap. He admitted, however, that he told the child that she could lick his penis. Defendant further claimed that he told the child to get defendant’s penis out of her mouth when he realized that it was the "Child and not her mother. He then took the child to the washroom and made her use mouthwash to get “the stuff” out of her mouth.

By the time of trial, defendant changed his story to deny any sexual contact and claimed that he only confessed because he was tired, wanted to go home, and figured the police would discover the real truth later. This trial testimony, however, was impeached by a sworn statement defendant made in court on February 1, 2000, in which he stated that everything in his written confession to police was true and that that was why he signed it. Defendant’s new story at trial was also of course impeached by defendant’s knowledge at the time he made his confession that anything he said to police would be used against him in court. Given the testimony of the mother, babysitter Galete and the defendant’s own confession, I see no basis for the plurality’s failure to conclude that the error in the admission of the statements to Grote and Yates was anything other than harmless beyond a reasonable doubt.

The plurality attempts to cast doubt on defendant’s detailed confession (and also apparently defendant’s later swearing in open court that his confession was true) by citing defense counsel’s comment that defendant suffered from a “mental disability” and therefore could not understand his Miranda rights. See 225 Ill. 2d at 308-09. There are three problems with this point. First, it is beyond dispute that arguments of counsel are not evidence and should not be considered as such. Second, the plurality’s argument does nothing to explain why defendant’s ratification of his confession in open court was not legitimate. And third, the evidence at trial did not support defense counsel’s argument that defendant could not understand his Miranda rights because of cognitive difficulties.

Defendant himself admitted he could read. Defendant’s own expert testified that defendant had average grades in school, and while an adult took truck-driving classes, graduating with excellent grades. There were two court-appointed experts, and they both testified on behalf of the State that defendant had the ability to understand and waive Miranda rights. One of the experts administered an IQ test where defendant scored only slightly below average and nothing indicated that defendant’s written or verbal skills were impaired. Moreover, one of the court-appointed experts also testified that defendant’s confession in blaming the victim and presenting a fantastic explanation was classic pedophile behavior.

Even though the excluded evidence was merely cumulative of the properly admitted evidence and the properly admitted evidence was overwhelming, the plurality flails at the air to come up with some reason why the improper evidence should not be considered cumulative and why the proper evidence should not be considered overwhelming. It points to the fact that some of the improper evidence included demonstrations with dolls and that one of the victim’s recollections was in response to the question, “Can you tell me about Robert Stechly?” But even if this evidence could be viewed as adding additional strength to the State’s case, it does not mean that this court should deem it as “contributing to the finding” for purposes of a harmless error analysis. Under the plurality’s approach, a new trial would be warranted whenever evidence that is additionally damaging to the defense is excluded no matter the overwhelming nature of the remaining evidence.

Finally, the plurality attempts to justify its reversal based on the circumstance that the first trial in this case ended in a mistrial. However, the second trial was conducted by way of a stipulated bench trial, and there is no indication at all that the trial court had any trouble concluding that defendant was guilty beyond a reasonable doubt. Furthermore, as our recent decision in People v. Nitz, 219 Ill. 2d 400, 413-14 (2006), makes clear, in deciding questions of plain or harmless error, we do not look to the actual jurors and their subjective mind-sets, but rather we are to look objectively at what a rational trier of fact would do when confronted with the properly admitted evidence. Thus, the fact that a mistrial was declared because some other jury or fact finder in a different proceeding could not agree on a verdict is completely irrelevant to our harmless error analysis. The plurality’s consideration of the subjective mind-set of a previous trier of fact amounts to an abandonment of its responsibility to look at the evidence objectively.

While a reviewing court in making its harmless error determination should not become a “second jury” to determine whether a defendant is “guilty,” a court should ask in a typical appellate-court fashion, “whether the record contains evidence that could rationally lead to a contrary finding.” Neder v. United States, 527 U.S. 1, 19 , 144 L. Ed. 2d 35, 53 , 119 S. Ct. 1827, 1839 (1999). An otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 681 , 89 L. Ed. 2d 674, 684 , 106 S. Ct. 1431, 1436 (1986). Given the two properly admitted, almost identical statements of the child, along with defendant’s detailed confession and his admission in open court that the confession was true, added with defendant’s improbable explanation for having confessed to a serious — and certainly embarrassing — felony offense, I believe that the error was harmless.

Because the properly admitted evidence was overwhelming, it is not significant that the trial court considered the cumulative statements to Grote and Yates as competent evidence. The child’s properly admitted statements to her mother and Galete, along with defendant’s confession, cleared up any doubt that he committed the crime. Thus, I fail to see why the admission of the statements to Grote and Yates should not be deemed harmless error under an objective analysis of the properly admitted evidence.

JUSTICE KARMEIER joins in this dissent.

The Supreme Court of California in Giles recently considered this language from Davis and concluded that it “only describes the traditional form of witness tampering cases — in the context of the domestic violence cases therein where the victims did not testify at trial — without limiting the forfeiture doctrine to witness tampering cases. More important, Davis reaffirmed the equitable nature of the forfeiture by wrongdoing doctrine and declared that Crawford, in overruling Roberts, supra, 448 U.S. 56 , did not destroy the ability of courts to protect the integrity of their proceedings. (Davis, supra, 126 S. Ct. at p. 2280 .)” Giles, slip op. at 19 n.5.