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12/13/89 the People of the State of v. Gilberto E. Rocha

December 13, 1989





547 N.E.2d 1335, 191 Ill. App. 3d 529, 138 Ill. Dec. 714 1989.IL.1935

Appeal from the Circuit Court of Ogle County; the Hon. John L. Moore, Judge, presiding.


JUSTICE WOODWARD delivered the opinion of the court. UNVERZAGT, P.J., and REINHARD, J., concur.


The defendant, Gilberto Rocha, was arrested for the crime of aggravated criminal sexual assault in violation of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(b)(1)). Pursuant to the statutory hearsay exception pertaining to victims of sexual abuse under age 13 (Ill. Rev. Stat. 1987, ch. 38, par. 115-10), the State filed notice of its intent to offer the out-of-court statements of the alleged victim (child), age three, into evidence at trial. The defendant objected. The trial court ruled that the child's statements were inadmissible hearsay and that they did not meet the statutory terms under which they were offered because the child was not "unavailable" as a witness. The State's appeal of the trial court's ruling presents this court with an issue of first impression. The question before us hinges on the interpretation of when a witness is, in fact, "unavailable" under the new statutory hearsay exception, section 115-10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115-10(b)(2)). Because we believe the trial court's ruling rested upon an incorrect interpretation of this statute, we reverse the trial court and remand the cause for further proceedings.


The State presented the following facts at several pretrial hearings. On August 26, 1987, the date of the alleged offense, the defendant, age 48, resided at the home of his sister, Maria Lara. Mrs. Lara was the regular baby-sitter for several children including the alleged child victim, at that time a three-year-old female. The child's mother dropped her off at the Lara house sometime between 6:20 a.m. and 6:30 a.m. on the morning in question. The child did not immediately complain to her mother or anyone else regarding any incident of sexual abuse, but at about this time the child began to cry and resist when going to the Lara house. Two days later, August 28, 1987, was the last time the child's mother used Mrs. Lara as her baby-sitter.

On October 14, 1987, the child allegedly told her mother that she did not want to go to the Lara house because "Uncle Zomba put a big thing" in her "cola." According to the State, defendant was known as "Zomba," and "cola" was a Spanish slang term for both the vaginal and anal areas. The mother then placed a call to the child-abuse hot line, which led to an investigation by the Department of Children and Family Services .

Ray Garrett, an investigator for the DCFS, conducted two interviews with the child on October 21, 1987. The child and her mother were present at the first interview with Garrett, and the child recounted essentially the same thing she had previously told her mother. Garrett returned for a second interview with the child, this one conducted with the assistance of anatomically correct dolls and in the presence of an investigator and an officer from the Ogle County sheriff's department. Asked to demonstrate what had occurred, the child called one doll by her own name and the other doll "Zomba" and then placed the dolls face to face to show contact between the penis and vaginal area. She stated that "Zomba" had put his "pee-pee" on her "cola."

The next day, October 22, 1987, the defendant was subject at the Rochelle police department to non-custodial questioning about the incident. Shortly after the questioning began, defendant was advised of his Miranda rights. Questioning of defendant then continued. Soon thereafter the police advised the defendant that he would be charged and asked him to repeat his statement in front of a videotape camera. He agreed.

In this videotaped statement the defendant stated that the child and he had been alone in the Lara House for a short time on the morning of August 26, 1987. The defendant stated that the child sat next to him on the couch and asked him to change her diaper. He did not do so because he could find no clean diapers; he stated that the child removed the diaper herself and was naked. The child then sat upon the defendant, who had his untucked shirt covering his unzipped pants; defendant lifted his shirt and then touched the child's vagina with his penis and his hand. He stated that the "devil" had come over him.

The defendant was bound over for trial following a preliminary hearing on November 12, 1987. The defendant moved to quash his arrest and suppress evidence, including the videotaped statement, but the trial court denied the motion. Prior to trial the State filed a notice of intent to offer into evidence the out-of-court statements made by the child to her mother and DCFS investigator Garrett. Because the child would not be testifying at trial, the hearsay evidence in question was offered under the statutory provision applicable when the child victim is "unavailable as a witness" (Ill. Rev. Stat. 1987, ch. 38, pars. 115-10(b)(2), (d)).

The defendant moved to exclude the out-of-court statements, and a hearing was held on the issue September 12, 1988. At that hearing, counsel for the defendant and the State stipulated that the child was not competent to testify at trial because of her young age. After hearing the arguments of counsel, the trial court held that the child's statements were not admissible under either a common-law hearsay exception or the provisions of the statutory hearsay exception. Specifically, the trial court ruled that the victim's incompetence to testify in this case was not within the meaning of the word "unavailable" as used in the statute.

The State filed a motion to reconsider, which was denied. The State then timely filed a certificate of impairment pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)) and a notice of appeal. Jurisdiction of the appeal of the trial court's order suppressing evidence is appropriate pursuant to Supreme Court Rule 604(a) (107 Ill. 2d R. 604(a)). (See People v. Hatfield (1987), 161 Ill. App. 3d 401.) The State claims on appeal that the trial court incorrectly determined that an incompetent child witness is not an "unavailable" witness within the meaning of the statutory hearsay exception and asks this court to reverse the trial court's ruling and remand the cause for further proceedings. This court first will examine what constitutes an "unavailable" witness within the context of the statute. We will then address the constitutional implications of this statutory interpretation.


In order to decipher the legislature's intent in enacting the current version of the child sexual abuse hearsay exception, it is pertinent to explore the development of Illinois law on this subject.

The spectre of child sexual abuse is one of the most troubling issues confronting our society today. It has been estimated that some 400,000 children are sexually abused every year in the United States. (See G. Skoler, New Hearsay Exceptions for a Child's Statement of Sexual Abuse, 18 J. Marshall L. Rev. 1 (1984).) These cases present special problems of proof that make their prosecution especially difficult. The most obvious difficulty is the fact that usually the only witness to the crime is a young child who may not be able to testify adequately about what occurred. The courtroom setting can be intimidating to the child attempting to recount the incident of abuse, and cross-examination is likely to confuse the child witness. A child may retract a claim of sexual abuse because of the guilt or fear caused by the event. Moreover, when the perpetrator is a friend or family member, the child may even fear the consequences for the offender. The child may simply refuse to retell his or her story in open court, and sometimes parents will decline to prosecute the case rather than subject the child to what amounts to yet another trying ordeal. See generally G. Skoler, New Hearsay Exceptions for a Child's Statement of Sexual Abuse, 18 J. Marshall L. Rev. 1, 5-7 (1984); Notes, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv. L. Rev. 806, 806-09 (1985).

Given the limitations inherent in the courtroom testimony of young children, courts have looked to traditional common-law hearsay exceptions to allow into evidence the out-of-court statements of alleged child victims. Illinois has long accepted both the spontaneous utterance and the prompt corroborative complaint exceptions to the general rule against hearsay. (People v. Damen (1963), 28 Ill. 2d 464, 471-72.) The Illinois legislature codified a slightly altered version of the corroborative complaint hearsay exception when it enacted the original version of section 115-10 of the Code of Criminal Procedure of 1963 in 1983. (Ill. Rev. Stat. 1983, ch. 38, par. 115-10; see People v. Goebel (1987), 161 Ill. App. 3d 113, 118-19.) Unlike the common-law prompt complaint doctrine, the statutory version did not view the promptness of the complaint as an issue of admissibility; rather, any delay in reporting an incident of sexual abuse was to affect the weight given the statement. In re M.M. (1988), 171 Ill. App. 3d 334, 343 (six-month delay in reporting of sexual abuse was an issue of weight, not admissibility, of the evidence).

This original version of section 115 -- 10 required, by its own terms, that the child victim must testify before any out-of-court statements might be brought into evidence. This obviated the issue of the defendant's right to cross-examine the witness. Because any out-of-court statements would only be offered in addition to the victim's own in-court testimony, Illinois courts interpreted the old section 115 -- 10 to allow only corroborative testimony and thus would not allow detailed repetition of the out-of-court statements. (In re M.M., 171 Ill. ...

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