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02/17/94 PEOPLE STATE ILLINOIS v. GEORGE P.

February 17, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
GEORGE P. FITZPATRICK, APPELLEE.



Bilandic, Freeman, Miller

The opinion of the court was delivered by: Bilandic

JUSTICE BILANDIC delivered the opinion of the court:

The defendant, George P. Fitzpatrick, was charged by information in the circuit court of Clinton County with seven counts of aggravated criminal sexual assault against his four minor grandchildren in violation of section 12-14(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12-14(b)(1)). Section 12-14(b)(1) states: "The accused commits aggravated criminal sexual assault if: the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed." The information in this case alleged that between June 1, 1989, and June 1, 1991, the defendant knowingly committed acts of sexual penetration against four of his grandchildren, all of whom were under 13 years of age when the acts were committed. A violation of section 12-14(b)(1) is a felony offense. See Ill. Rev. Stat. 1989, ch. 38, par. 12-14(d).

Next, the State moved pursuant to section 106B-1 of the Code of Criminal Procedure of 1963 (the Child Shield Act) (Ill. Rev. Stat. 1991, ch. 38, par. 106B-1) for an order allowing the testimony of the four grandchildren to be presented at trial outside the courtroom by means of closed circuit television. The motion alleged that the children would suffer serious emotional or other severe adverse effects, or might be unable to reasonably communicate, absent an order allowing their testimony to be presented solely by closed circuit television.

The defendant moved to declare the Child Shield Act unconstitutional pursuant to the confrontation clause of the Illinois Constitution. (Ill. Const. 1970, art. I, § 8.) Specifically, the defendant argued that the Child Shield Act, which allows for a child to testify outside the presence of the defendant, but subject to contemporaneous cross-examination by the defendant's counsel, violated the confrontation clause of the Illinois Constitution because the defendant is not permitted to meet the witness "face to face." The circuit court held that the Child Shield Act violated article I, section 8, of the Illinois Constitution and, therefore; was unconstitutional. The State appealed directly to this court pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603).

The issue now before this court is whether the Child Shield Act (Ill. Rev. Stat. 1991, ch. 38, par. 106B-1) violates the confrontation clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 8). The Child Shield Act provides in pertinent part:

"§ 106B-1. (a)(1) In a proceeding in the prosecution of an offense of criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse or aggravated criminal sexual abuse, a court may order that the testimony of a child victim under the age of 18 years be taken outside the courtroom and shown in the courtroom by means of a closed circuit television if:

(i) The testimony is taken during the proceeding; and

(ii) The Judge determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate or that the child will suffer severe emotional distress that is likely to cause the child to suffer severe adverse effects.

(2) Only the prosecuting attorney, the attorney for the defendant, and the Judge may question the child." Ill. Rev. Stat. 1991, ch. 38, pars. 106B-1(a)(1), (a)(2).

The only persons allowed in the room with the child when the child testifies by closed circuit television are the prosecuting attorney, defense counsel, the Judge, operators of the closed circuit television equipment, and any person whose presence contributes to the well-being of the child. (Ill. Rev. Stat. 1991, ch. 38, par. 106B-1(b)(1).) Although the defendant remains in the courtroom while the child testifies by closed circuit television, the defendant is permitted to communicate with the persons in the room where the child is testifying by any appropriate electronic method. (Ill. Rev. Stat. 1991, ch. 38, pars. 106B-1(b)(2), (b)(3).) Despite the protection afforded a child under this Act, the provisions of this Act do not apply if the defendant represents himself pro se. Ill. Rev. Stat. 1991, ch. 38, par. 106B-1(c).

The defendant contends that the Child Shield Act is unconstitutional because it violates the confrontation clause of the Illinois Constitution by denying a defendant's right to face a witness during testimony. Accordingly, we must determine whether or not the Illinois Constitution entitles a defendant to a face-to-face encounter with a witness.

Our inquiry is guided by long-standing principles of statutory construction. We begin by noting that, in general, the rules of statutory construction are applicable to the construction of constitutional provisions. ( People ex rel. Chicago Bar Association v. State Board of Elections (1990), 136 Ill. 2d 513, 526, 558 N.E.2d 89, citing Coalition for Political Honesty v. State Board Of Elections (1976), 65 Ill. 2d 453, 464, 359 N.E.2d 138.) This court has long held that the primary rule of statutory construction is to ascertain and give effect to legislative intent. ( Business & Professional People for the Public Interest v. Illinois Commerce Comm'n (1991), 146 Ill. 2d 175, 207, 585 N.E.2d 1032; People v. Hare (1988), 119 Ill. 2d 441, 447, 519 N.E.2d 879.) Legislative intent is best evidenced by the language used in the statute. ( Business & Professional People, 146 Ill. 2d at 207; Kraft, Inc. v. Edgar (1990), 138 Ill. 2d 178, 189, 561 N.E.2d 656; Hare, 119 Ill. 2d at 447.) Where the statutory language is clear and unambiguous, it will be given effect without resorting to other aids for construction (e.g., this court need not refer to the legislative history). People ex rel. Baker v. Cowlin (1992), 154 Ill. 2d 193, 197, 607 N.E.2d 1251; Business & Professional People, 146 Ill. 2d at 207; People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174.

Applying these basic principles of law, we conclude that the confrontation clause of the Illinois Constitution provides that a defendant is entitled to a face-to-face confrontation with a witness. The language of the Illinois confrontation clause is not ambiguous. The confrontation clause in article I, section 8, of the Illinois Constitution unequivocally states: "In criminal prosecutions, the accused shall have the right * * * to meet the witnesses face to face." (Emphasis added.) (Ill. Const. 1970, art. I, ยง 8.) The language in the Illinois Constitution confers an express and unqualified right to a face-to-face confrontation with witnesses. Clearly, a witness who is examined by closed circuit television does not provide the defendant with the face-to-face encounter envisioned by ...


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