# People v. Learn

> Appellate Court of Illinois · March 2, 2007 · 371 Ill. App. 3d 701

URL: https://www.frixlaw.com/law-library/cases/9860915

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES E. LEARN, Defendant-Appellant
- **Court:** Appellate Court of Illinois
- **Decided:** March 2, 2007
- **Citations:** 371 Ill. App. 3d 701; 309 Ill. Dec. 276; 863 N.E.2d 1173; 2007 Ill. App. LEXIS 221
- **Precedential status:** Published
- **Opinion:** Concurrence by Geometer
- **Judges:** McLaren, Geometer
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

PRESIDING JUSTICE GEOMETER, specially concurring:
Though I agree with the majority insofar as it reverses the judgment of the trial court and remands for a new trial, I disagree with much of its reasoning regarding the admissibility of K.O.’s out-of-court statements. K.O.’s statements were admissible under section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115 — 10 (West 2002)). However, the admission of KO.’s statements to law enforcement personnel was improper under Crawford v. Washington, 541 U.S. 36, 68 , 158 L. Ed. 2d 177, 203 , 124 S. Ct. 1354, 1374 (2004). Her statements to her father, on the other hand, were not testimonial and therefore were admissible under Crawford. Accordingly, I write separately, though I concur in the ultimate result to which the majority comes.
As the supreme court made clear in In re E.H., 224 Ill. 2d 172, 178 (2006), in analyzing a case like this, a court must first address any nonconstitutional issues (section 115 — 10) before turning to a constitutional issue {Crawford). Thus, whether K.O.’s statements were admissible under section 115 — 10 is the proper place to begin. Section 115 — 10 operates as an exception to the hearsay rule if either the child testifies or “there is corroborative evidence of the act which is the subject of the statement.” 725 ILCS 5/115 — 10(b)(2)(B) (West 2002). I agree with the majority that K.O. did not testify as contemplated by section 115 — 10. However, her statements were sufficiently corroborated so as to allow their admission.
This court recently addressed corroboration under section 115 — 10 in In re Rolandis G., 352 Ill. App. 3d 776, 784 (2004). We first noted that “to corroborate means only ‘ “to add weight or credibility to a thing by additional or confirming facts or evidence.” ’ ” Rolandis G., 352 Ill. App. 3d at 784 , quoting People v. Alba, 185 Ill. App. 3d 286, 290 (1989), quoting In re Custody of Brunken, 139 Ill. App. 3d 232, 239 (1985). For the purpose of section 115 — 10, “corroborating evidence need not prove the commission of the crime beyond a reasonable doubt or make it overwhelmingly probable; it need only ‘add weight or credibility’ to the out-of court statements.” Rolandis G., 352 Ill. App. 3d at 784 . In Rolandis G., 352 Ill. App. 3d at 784 , we found the following to sufficiently corroborate the victim’s out-of-court statements so as to allow their admission: (1) that the victim was with the defendant on the day at issue, and (2) that the victim behaved strangely in that he did not want to go outside on a summer day, that he rinsed his mouth repeatedly, and that he was evasive when asked about his behavior.
In this case, KO.’s statements were also corroborated by strange behavior. Specifically, K.O. touched her younger sibling’s penis as C.O. changed his diaper. At issue is KO.’s statement that “[Jimmy] would touch her hand *** and put it on his parts.” Thus, K.O.’s behavior mimicked the act of which she was speaking. Additional, albeit minimal, corroboration can be found in the testimony K.O. gave on the stand prior to being unable to answer further questions. K.O. testified that, though she liked her aunt, she did not like defendant, her uncle. This evidence, particularly KO.’s conduct, adds weight to her statements. Given that corroborating evidence need only add weight or credibility to a child’s statement for it to be admissible (Rolandis G., 352 Ill. App. 3d at 784 ), K.O.’s statements were admissible under section 115 — 10.
Having resolved the nonconstitutional issue, I will now address whether K.O.’s statements were admissible under Crawford. Here, I conclude that her statements to her father were admissible and that her statements to law enforcement personnel were not. Under Crawford, as defendant had no opportunity to cross-examine K.O., the admissibility of her statements turns on whether they were testimonial. Crawford, 541 U.S. at 59 , 158 L. Ed. 2d at 197 , 124 S. Ct. at 1368-69 .
Admittedly, sound guidance on what constitutes a testimonial statement is a bit lacking. In Crawford, 541 U.S. at 68 , 158 L. Ed. 2d at 203 , 124 S. Ct. at 1374 , the Supreme Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Nevertheless, Crawford does provide some clues as to the characteristics of a testimonial statement, as does the Supreme Court’s only opinion interpreting Crawford, Davis v. Washington, 547 U.S. 813 , 165 L. Ed. 2d 224 , 126 S. Ct. 2266 (2006). Case law from across the nation reveals additional considerations that courts consider relevant to this inquiry. The way, then, to start, is to review these decisions and ascertain what these factors are.
Crawford did establish a few bright-line rules as to testimonial statements, holding that, “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Crawford, 541 U.S. at 68 , 158 L. Ed. 2d at 203 , 124 S. Ct. at 1374 . KO.’s statements do not fit within any of these categories; therefore, they require further analysis.
The Crawford Court also offered what it termed “various formulations” of the “core class” of testimonial statements, which include:
“ ‘ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’ [citation]; ‘extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [citation]; ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[ ]’ [citation].” Crawford, 541 U.S. at 51-52 , 158 L. Ed. 2d at 193 , 124 S. Ct. at 1364 .
The references to “ex parte in-court testimony” and “affidavits, depositions, prior testimony, or confessions” provide no additional significant guidance in that the per se categories articulated above are, in essence, these types of statements. However, two of the three formulations do set forth an additional consideration: what a reasonable person in the declarant’s position would expect regarding the future use of a statement. Thus, the state of mind, assessed objectively, of a reasonable person in the declarant’s position is relevant.
Additionally, Crawford provides the following definition of “testimony”: “ ‘[A] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ [Citation.]” (Emphasis added.) Crawford, 541 U.S. at 51 , 158 L. Ed. 2d at 192 , 124 S. Ct. at 1364 . This definition, which incorporates the reason that the statement was made, suggests that the subjective intent of the declarant is relevant. Cf. Downey Venture v. LMI Insurance Co., 66 Cal. App. 4th 478, 494 , 78 Cal. Rptr. 2d 142, 150-51 (1998) (“The ‘malice’ element [of malicious prosecution] *** relates to the subjective intent or purpose with which the defendant acted in initiating the prior action”). In Rolandis G., 352 Ill. App. 3d at 782 n.l, this court, while noting that a “definition of ‘testimonial’ that turned solely on the subjective knowledge or intent of the declarant would be both unfair and unworkable,” recognized that “a declarant’s subjective understanding might be relevant in some cases, such as where the circumstances surrounding the statement are ambiguous.” Thus, in some cases, the actual state of mind of the declarant might illuminate the inquiry.
An additional consideration can be gleaned from Davis v. Washington, 547 U.S. 813 , 165 L. Ed. 2d 224 , 126 S. Ct. 2266 , namely, the state of mind of a person questioning the declarant. There, the Supreme Court held:
“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 .
The Supreme Court articulated this factor as the “purpose of the interrogation.” (Emphasis added.) Davis, 547 U.S. at 822 , 165 L. Ed. 2d at 237 , 126 S. Ct. at 2274 . Thus, in Davis, the state of mind of the interrogator, measured objectively, rather than that of the declarant, was at issue. It is also worth noting that the Supreme Court spoke of the “primary purpose,” indicating that when mixed motives are involved, a court should give weight to the main one.
The Davis Court also identified four additional factors. The Supreme Court found relevant whether a declarant’s statement was a description of events as they were happening or a recounting of past events. Davis, 547 U.S. at 826-27 , 165 L. Ed. 2d at 240 , 126 S. Ct. at 2276 . It further noted that the intent of the declarant, which, in Davis, was to seek police assistance during an ongoing emergency, aided its inquiry. Davis, 547 U.S. at 827 , 165 L. Ed. 2d at 240 , 126 S. Ct. at 2276 . The nature of the questions and the statement was also deemed a consideration. Davis, 547 U.S. at 827 , 165 L. Ed. 2d at 240 , 126 S. Ct. at 2276 . Finally, the Court relied upon the “level of formality” of the questioning. Davis, 547 U.S. at 827 , 165 L. Ed. 2d at 240 , 126 S. Ct. at 2276 . Regarding this last point, Crawford expressed a related consideration — whether the statement was given in response to structured police questioning. Crawford, 541 U.S. at 53 n.4, 158 L. Ed. 2d at 194 n.4, 124 S. Ct. at 1365 n.4. This court articulated a similar point when we relied on the “formal and systematic” nature of questioning in finding a statement testimonial. Rolandis G., 352 Ill. App. 3d at 781 .
A factor that the Supreme Court has expressly declined to address is whether a statement may be deemed testimonial when it is made to someone other than a law enforcement officer or other representative of the government. Davis, 547 U.S. at 823 n.2, 165 L. Ed. 2d at 238 n.2, 126 S. Ct. at 2274 n.2. Some courts that have addressed the question have held that the involvement of a governmental actor is an important factor. See People v. Compan, 100 P.3d 533, 537 (Colo. App. 2004) (“Thus, it appears that testimonial statements under Crawford will generally be (1) solemn or formal statements (not casual or offhand remarks), (2) made for the purpose of proving or establishing facts in judicial proceedings (not for business or personal purposes), (3) to a government actor or agent (not to someone unassociated with government activity)” (emphasis added)). In this State, the First District of the Appellate Court has observed that “Crawford indicates that governmental involvement in some fashion in the creation of a formal statement is necessary to render the statement testimonial in nature.” In re T.T., 351 Ill. App. 3d 976, 988 (2004). While I am not prepared to go so far as to say that the involvement of a governmental actor is a necessary condition, I do believe that it is a consideration entitled to some weight. See State v. Wilkinson, 178 Vt. 174, 178 , 879 A.2d 445, 448 (2005) (considering, inter alia, the absence of police and prosecutorial involvement at the time a statement was made); cf. Crawford, 541 U.S. at 51 , 158 L. Ed. 2d at 192 , 124 S. Ct. at 1364 (“An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not”).
Thus, as the preceding discussion makes clear, numerous factors have been held relevant in determining whether a statement is testimonial. These include the following: (1) the state of mind of the declarant; (2) how a reasonable person in the declarant’s position would regard the statement; (3) the primary purpose, as revealed objectively by the circumstances, of a person posing questions; (4) the nature of the questions and the statement; (5) the level of formality of the questioning and the statement; (6) whether the statement was a description of presently occurring events or a recollection of past events; and (7) the involvement of a governmental actor. One factor identified in Davis, 547 U.S. at 826-28 , 165 L. Ed. 2d at 240-41 , 126 S. Ct. at 2276-77 , that the declarant was seeking police assistance while facing an ongoing emergency, is really just another way of addressing the state of mind of the declarant. Therefore, I do not list it as a separate factor. While this list surely will not represent the last word as to what is relevant to the determination of whether a statement is testimonial, it does represent factors that courts are currently using to guide their analyses of the issue.
Because different factors are at issue, I will first address KO.’s statement to her father and then separately address her statements to law enforcement personnel. The first thing to consider is KO.’s subjective state of mind. Though, as we recognized in Rolandis G., 352 Ill. App. 3d at 782 , evidence of a declarant’s actual mind state will often be difficult to find, in this case, such evidence exists in the record. C.O. testified that, as he was changing his son’s diaper, K.O. touched his son’s penis. C.O. told K.O., “That’s not correct. You shouldn’t touch his parts. *** Nobody should touch anybody else.” K.O. replied, “Why not? Jimmy does it.” From KO.’s statement, it is clear that, not only was she not accusing defendant of any wrongdoing, but she did not perceive her own behavior to be unacceptable and she was referring to defendant’s actions in an attempt to justify her behavior. That K.O. did not perceive defendant’s behavior as wrongful at the time she made the statement to C.O. is confirmed by C.O.’s later testimony that “[s]he didn’t know it was bad.” In fact, as C.O. also testified, not until K.O.’s grandmother became involved in the conversation did K.O. “realize *** something was wrong.” Since K.O. did not realize that defendant’s actions were wrong, her subjective state of mind was obviously inconsistent with bearing witness against defendant. This first factor, then, weighs strongly against a finding that KO.’s statement to C.O. was testimonial.
The second factor considered in cases applying Crawford is the state of mind of the declarant, measured from an objective perspective. The argument has been advanced that children of tender years lack the capacity to form a state of mind consistent with the various formulations of testimonial statements set forth in Crawford. For example, in Rolandis G., 352 Ill. App. 3d at 782 , the State posited that no child would typically contemplate that anything he or she would say would later be available for trial. There is certainly some logic to this observation; however, a more realistic standard can be used for evaluating statements made by young children. In such situations, one commentator observes that “there is something a little odd about asking, with respect to a statement by a young child, what the anticipation of a reasonable adult would be.” R. Friedman, Grappling with the Meaning of Testimonial, 71 Brook. L. Rev. 241 , 273 (2005). The same commentator, while discussing the assessment of the subjective state of mind of a child, asserts that “[i]t should be enough if the child understood that she was reporting wrongdoing and that some adverse consequences — including that Mommy would get mad — would be visited on the wrongdoer.” R. Friedman, Grappling with the Meaning of Testimonial, 71 Brook. L. Rev. 241 , 273 (2005). This suggestion is sensible, and I see no reason why it would be inappropriate to utilize it objectively. Thus, the question here is whether a reasonable child would typically understand that he or she was reporting wrongdoing and that adverse consequences would likely befall the wrongdoer. It seems to me that most children in this day and age would understand that he or she was reporting wrongdoing if placed in KO.’s position. Hence, this factor favors finding K.O.’s statement testimonial. However, given that we have good evidence of KO.’s actual state of mind, that factor should control. After all, what is being assessed is whether the declarant was acting as a witness. Crawford, 541 U.S. at 51 , 158 L. Ed. 2d at 192 , 124 S. Ct. at 1364 . The declarant’s actual state of mind is a better indicator as to what the declarant’s purpose was in making a statement.
Third, from Davis, 547 U.S. at 821-22 , 165 L. Ed. 2d at 236-37 , 126 S. Ct. at 2273-74 , we must assess the primary purpose of C.O. in questioning K.O. That C.O. was seeking to learn what happened to his daughter and to ascertain who did it is undoubtedly true; however, that observation should not end the inquiry. In Davis, 547 U.S. at 821-22 , 165 L. Ed. 2d at 236-37 , 126 S. Ct. at 2273-74 , the Supreme Court observed that where the primary purpose of questioning is to react to an ongoing emergency, as opposed to establishing and proving past events, statements elicited are not testimonial. Here, it must be remembered that C.O. is a parent rather than a law enforcement officer. Thus, it is reasonable to suppose that his questions were designed to allow him to tend to his daughter’s well-being. A reasonable parent would want information to assess the need for medical treatment or counseling. Additionally, a reasonable parent would want to know who perpetrated the abuse so that that person would not be allowed access to the child. In other words, a parent confronted with a revelation of abuse is reacting to an ongoing emergency in the sense that there may be a real and present need for certain actions to be taken to insure the child’s well-being. Indeed, C.O. testified that he tried not to scare his daughter as he was speaking with her, indicating that his daughter’s psychological well-being was on his mind.
The fourth factor requires analysis of the nature of the questions and the statement. This factor weighs in favor of finding the statement testimonial. The content of the conversation between K.O. and C.O. concerned defendant’s identity and his crimes.
The fifth consideration is the level of formality of the questioning and the statement. C.O. did pose a series of questions in an attempt to learn more about defendant’s actions; however, the questioning flowed naturally and spontaneously from the earlier conversation between C.O. and K.O. Moreover, the setting was quite informal. The statement was not made in a police interview room or the like; it was made in K.O.’s home while the family was engaged in otherwise normal activity. Given that structured questioning was involved, this factor slightly favors KO.’s statement being deemed testimonial. I do not, however, believe that the factor is entitled to great weight due to the setting in which the statement was made.
The sixth factor identified above is whether the statement was a description of presently occurring events or a recounting of past events. K.O.’s statement clearly concerned past events. This factor, therefore, supports finding her statement testimonial.
Finally, the seventh factor requires a court to consider whether a governmental actor was involved in the production of the statement. C.O. was not acting on behalf of the government. Hence, this factor indicates that K.O.’s statement was not testimonial.
Thus, I conclude that K.O.’s actual state of mind, C.O.’s state of mind, measured objectively, and the lack of involvement of the government in the production of the statement all indicate that KO.’s statement was not testimonial. The nature of the questioning and the statement as well as the fact that the statement was a description of past events militate for a contrary conclusion. The level of formality of the questioning and the expectations of a reasonable child in KO.’s position provide some weak support to conclude that the statement was testimonial. In this case, I believe that the first three factors listed in this paragraph should control.
After all, what we are analyzing here is a conversation between a parent and a child taking place in the family home. Numerous courts interpreting Crawford have found statements made in conversations between family members and friends nontestimonial. See State v. Aaron L., 272 Conn. 798 , 813 n.21, 865 A.2d 1135 , 1145 n.21 (2005); Purvis v. State, 829 N.E.2d 572, 579 (Ind. App. 2005) (“Parents of young children constantly question them about their activities, often to ensure that the children are behaving safely. When parents find illegal activity or victimization, they naturally contact appropriate authorities. The fact that parents turn over information about crimes to law enforcement authorities does not transform their interactions with their children into police investigations. When they questioned M.B., Gray and Shawn were motivated primarily to find out what happened so that they could protect M.B.’s safety. This activity is sufficiently attenuated from law enforcement conduct to be non-testimonial under Crawford”); Commonwealth v. Gonsalves, 445 Mass. 1, 17-18 , 833 N.E.2d 549, 561-62 (2005); State v. Brigman, 171 N.C. App. 305, 311-12 , 615 S.E.2d 21, 24-25 (2005) (statement made to foster mother held nontestimonial); State v. Wilkinson, 178 Vt. 174 , 879 A.2d 445 (2005); State v. Walker, 129 Wash. App. 258 , 273, 118 P.3d 935, 942 (2005) (“The record indicates that the exchange between Bobbi and C.M. was that of a conversation between a concerned parent and an upset child, nothing more”); Herrera-Vega v. State, 888 So. 2d 66, 69 (Fla. App. 2004) (“Whatever the United States Supreme Court eventually decides ‘testimonial’ evidence consists of, it does not appear to include the spontaneous statements made by D.H. to her mother while being dressed, nor does it include D.H.’s statements to her father”); State v. Bobadilla, 690 N.W.2d 345, 350 (Minn. App. 2004) (“T.B.’s statement to his mother was not testimonial. T.B.’s mother questioned T.B. about the redness around his anus out of concern for his health, not because she expected to develop a case against Bobadilla”), rev’d on other grounds, 709 N.W.2d 243 (Minn. 2006); State v. Blackstock, 165 N.C. App. 50, 62-63 , 598 S.E.2d 412, 420 (2004) (“Moreover, the fact that Weeks made the statements to his wife and daughter mitigates against the possibility that he understood he was ‘bearing witness’ against Defendant”). I find these cases persuasive. Conversations between family members, even when they pertain to criminal acts, are not the sort of statements that the confrontation clause is concerned with. The extensive discussion in Crawford of the history of the right of confrontation confirms that it was primarily directed at governmental abuses. See, e.g., Crawford, 541 U.S. at 50 , 158 L. Ed. 2d at 192 , 124 S. Ct. at 1363 (“[T]he principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused”).
I will now briefly turn to the statements to which Stokes and Montemayor testified. There is little evidence in the record that would illuminate K.O.’s subjective state of mind at the time these statements were made. However, a reasonable person, even of KO.’s age, would likely understand that some adverse consequences would be visited upon the wrongdoer, so the objective state of mind of the declarant favors a finding that the statements were testimonial. The primary purpose of the interviews appears to have been to gather evidence for use against defendant. The nature of the statements and the questioning concerned potential crimes. Further, the questioning took place not in the family home but in the Children’s Advocacy Center, indicating a greater degree of formality. As with her statement to her father, KO.’s statements to Stokes and Montemayor concerned past events. Finally, these statements were made to governmental agents. Considering the totality of these factors, these statements were testimonial in nature.
Undoubtedly, this area of the law is in flux. It would not be surprising if the test that courts ultimately settle on looks much different from that articulated in this special concurrence. Nevertheless, I believe that the considerations set forth here provide a realistic and complete analysis based upon what courts are doing right now. I do agree with the majority that we must reverse and remand; however, I believe that on remand, K.O.’s statements to C.O. should be admissible. I therefore respectfully specially concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9860915. Public record. Not legal advice.