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12/21/87 the People of the State of v. Edward E. Johnson

December 21, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

EDWARD E. JOHNSON, APPELLANT



SUPREME COURT OF ILLINOIS

517 N.E.2d 1070, 118 Ill. 2d 501, 115 Ill. Dec. 384 1987.IL.1892

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Patrick J. Fleming, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

The defendant, Edward E. Johnson, was charged in St. Clair County with the offense of aggravated indecent liberties with a child. (Ill. Rev. Stat. 1983, ch. 38, par. 11-4.1.) At his trial, the testimony of the five-year-old complaining witness and her seven-year-old brother was recorded on videotape for presentation to the jury. The defendant was not present in the courtroom when the complaining witness' testimony was recorded. He was ultimately found guilty as charged. The appellate court affirmed the defendant's conviction, with one Justice Dissenting, rejecting his assorted challenges to the videotaping procedure and its use. (146 Ill. App. 3d 640.) We granted the defendant's petition for leave to appeal.

The victim, five-year-old Danielle Willis, resided with her mother, the defendant (her mother's husband) and her two brothers, Michael and Averil, in an apartment in East St. Louis. Mrs. Johnson testified that on the morning of June 26, 1984, she left the apartment early for a doctor's appointment. When she returned at approximately 9:45 a.m., she was met at the door by the defendant, who asked her what to do about bleeding. Danielle was sitting on the toilet, and the bowl was full of blood. When asked who caused her injury, Danielle replied, "It was 'man.'" Danielle also indicated that she knew who the person was, but did not further identify him at that point.

The defendant told Mrs. Johnson that he had been asleep until being awakened by the sound of Danielle crying in the bathroom. Mrs. Johnson started for the back door, thinking that "man" might be the upstairs neighbor, Robert Lewis, or his eight-year-old son, Emmanuel, whose nickname was "Man." The back door of the Johnson's apartment led to a storage room which was also accessible to the apartment upstairs. That back door, which had been locked when Mrs. Johnson left the apartment earlier, was now unlocked. Both Robert and Emmanuel Lewis testified and denied involvement. Other testimony established that Robert Lewis had borrowed tools from the defendant at the back door sometime between 7 and 7:30 a.m. The defendant testified that he relocked the back door after giving Mr. Lewis the tools.

Danielle was taken to the hospital, where an examination revealed external and internal injuries to her genitalia. The injuries were consistent with the insertion of an adult penis.

The circumstances of Danielle's eventual identification of the defendant as her assailant are not entirely clear from the record. On June 27, the day after the incident, Danielle's aunt, Mary Chappel, came from Chicago to visit the child. Ms. Chappel testified that during a conversation in Danielle's hospital room, with no one else present, Danielle told her that "Edward did it." However, the aunt did not report this disclosure to the police, but testified that she did inform Mrs. Johnson. In her testimony, Mrs. Johnson made no mention of having been so informed. She stated that she was told about Edward by Danielle herself, and that this occurred a "good while after" the incident. No exact date was testified to.

A police officer testified that he visited Danielle in the hospital each day after the incident, but she did not give a statement. While the record is again unclear, it appears that the police were notified of the defendant's involvement only after Danielle spoke to a social worker on July 2, about a week after the incident. The social worker testified that Danielle named Edward as her assailant at that time.

In any event, Danielle was released from the hospital on July 3, and an officer went to the apartment on that day. According to the officer, Danielle and her aunt, Mary Chappel, had a conversation about the incident while the officer listened in the next room. According to the officer's contemporaneous report, Ms. Chappel used dolls to have Danielle demonstrate what happened. She then questioned Danielle along the lines of, "What did Edward do to you?"

This rendition of events contradicts Ms. Chappel's version. She testified that she did not ask any questions and that Danielle "volunteered" the statements implicating the defendant.

We have related these events in some detail in order to place the children's videotaped testimony in necessary perspective. As should be obvious, the evidence independent of their testimony was conflicting and unclear. While there can be no doubt that someone committed a loathsome offense against the child, the question is whether the defendant was in fact the offender. The defense theory was that Danielle was coached or coerced into naming the defendant by the repeated suggestions of her aunt and perhaps others.

Against this backdrop, we turn to the circumstances surrounding the videotaping of Danielle's and Michael's testimony. Prior to trial, a hearing was held to determine the competency of both children to testify. Danielle was examined first and, according to the transcript, failed to give an audible response to any of the prosecutor's questions. A later attempt to question Danielle elicited a few audible responses, but the majority of questions were met with no response at all, or were answered by nodding or shaking of her head. Michael was more verbal by comparison, but he often resorted to nodding or was nonresponsive. The trial court found Michael competent to testify, but reserved its ruling on Danielle until after her testimony. The court also, sua sponte and over the defendant's objection, ordered that both children's testimony be recorded on videotape with the jury and spectators removed from the courtroom.

The next day, after opening arguments, Danielle began testifying, which was recorded on the videotape. She gave audible answers to some preliminary questions, but when the questioning turned to the day she "got hurt" she ceased speaking. She was asked repeatedly who came into her room but would not respond. Finally, the prosecutor requested a recess, asserting that Danielle was "frightened to death." The prosecutor then moved that the defendant be removed from the courtroom during Danielle's testimony. Defense counsel objected, arguing that the defendant had made no remarks or gestures to influence the child, but the trial court granted the motion. The court ordered that the defendant be placed in a control room where he could view the testimony on a video monitor, that he be provided a note pad on which to take notes during the testimony, and that he be granted a recess prior to cross-examination during which he could confer with his attorney.

When Danielle resumed testifying, she was initially more verbal and responsive. In response to questioning, she stated that "Edward" committed the offense against her. Her responsiveness quickly deteriorated, however, and she eventually reverted to the reticent behavior she had exhibited earlier.

Her level of responsiveness became even lower on cross-examination and redirect examination. She was almost entirely nonverbal, if she responded at all, and she occasionally indicated her assent to completely contradictory ...


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