APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
514 N.E.2d 572, 161 Ill. App. 3d 401, 112 Ill. Dec. 909
Appeal from the Circuit Court of De Kalb County; the Hon. John A. Leifheit, Judge, presiding. 1987.IL.1515
PRESIDING JUSTICE LINDBERG delivered the opinion of the court. REINHARD and HOPF, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG
The State appeals the judgment of the circuit court of De Kalb County granting defendant's motion in limine to exclude a four-year-old nontestifying child-declarant's out-of-court statements. The State has filed a certificate that the exclusion of the evidence substantially impairs prosecution of the case. (107 Ill. 2d R. 604(a)(1). In a motion to dismiss this appeal, defendant challenges the right of the State to appeal the pretrial exclusion of evidence.
Defendant, Kenneth D. Hatfield, was charged with two counts of aggravated criminal sexual assault in violation of section 12-14(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(1)) in that he knowingly committed an act of sexual penetration upon Daina Hatfield by placing his finger and mouth upon her vagina on or about August 6, 1985. Defendant filed pretrial motions to quash arrest and suppress evidence and a motion contending that the four-year-old child-declarant was not competent to testify. The motions to quash and suppress were denied. The parties stipulated that the child-declarant was not competent to testify. The instant State appeal concerns the trial court's pretrial order denying the child-declarant's out-of-court statement's admission into evidence.
During several hearings before three different Judges of the circuit court of De Kalb County, the testimony of several witnesses was received in response to defendant's pretrial motions. The trial Judge who entered the instant order of suppression acknowledged his lack of awareness of the testimony previously adduced before the other Judges. Therefore, a summary of the evidence presented at the several hearings is appropriate for a background for our determination.
Evidence was presented that defendant and Debra Ames are the parents of the alleged victim Daina. The three lived together, although defendant and Debra were not married. Defendant went to work at about 7:30 a.m. the morning of August 6, 1985. Debra, thereafter, at about 8 a.m., awakened Daina and began washing her. It is at this time that some of the statements in question were allegedly made. Debra testified that Daina told Debra not to touch her down there because she was sore. Debra asked why, and Daina said, "Daddy is fooling with me." Debra asked what, Daina meant. Debra testified that Daina showed her by parting her legs and putting her fingers on her vagina and rubbing it. Debra testified that Daina stated that "This is what Daddy does" and added, "You know it." Debra testified that she, Debra, got mad and responded that she did not know it. She testified that she had no prior knowledge of the act described by Daina. She then called the police.
The record also discloses that Daina was interviewed at the offices of the Department of Children and Family Services beginning at about 3:30 p.m. later the same day, August 6, 1985. William St. Arnold, a social worker with the agency, conducted the interview, although he did not testify at any of the pretrial hearings. Sheriff's Deputy Rogers testified to what Daina told St. Arnold in his presence but outside the presence of her mother, Debra. Daina stated her daddy had touched her that morning and pointed to her vagina and also to the vagina of an anatomically correct female doll, referring to the area as her "butt."
The deputy also testified that the arrest of defendant was predicated upon what Daina had said and demonstrated to her mother, Debra, and to social worker St. Arnold. No medical examination was made.
The record discloses that defendant testified. He acknowledged that in oral statements to Detective Kennett, a written summary of which he read and signed, he had touched Daina's vagina in a game he played with her wherein he tickled her around her vagina during the game. He stated his fingertip may have entered Daina's vagina during this game. He told the detective that his finger may have entered Daina's anal passage and his lips may have touched her vagina while blowing on it.
Detective Kennett testified that defendant stated that he did not perform the acts for sexual gratification. Defendant asked Kennett that the written summation include defendant's request for assistance for his problem with his daughter.
The record also contains testimony from a mutual acquaintance of Daina's mother and father. The acquaintance, Sharon Spohr, testified that Debra told her she was going to leave ...