Appeal from Circuit Court of McLean County. Nos. 94CF95, 93CF1106. Honorable Ronald C. Dozier, Judge Presiding.
Released for Publication December 9, 1996. As Corrected February 24, 1997.
Honorable Robert J. Steigmann, P.j., Honorable James A. Knecht, J. - Concur, Honorable Robert W. Cook, J. - Special Concurrence. Presiding Justice Steigmann delivered the opinion of the court.
The opinion of the court was delivered by: Steigmann
PRESIDING JUSTICE STEIGMANN delivered the opinion of the court:
A jury convicted defendant, Amasa M. Peck, of four counts of aggravated criminal sexual assault, committed upon his two daughters under 13 years of age (720 ILCS 5/12-14(b) (West 1992)). He was sentenced to concurrent 15-year prison terms on three counts, and eight years on the last count, to run consecutively to the others. Defendant appeals, arguing the trial court erroneously (1) admitted hearsay testimony in violation of section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 1992)); (2) spoke to the jurors after they returned the guilty verdicts and discussed the credibility of certain evidence prior to ruling on the post-trial motion; and (3) admitted an audiotape of an interview with one victim. We reverse and remand for a new trial.
The material in this section is not to be published pursuant to Supreme Court Rule 23. Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.
[The following material is not to be published pursuant to Supreme Court Rule 23.]
[The preceding material is not to be published pursuant to Supreme Court Rule 23.]
II. HEARSAY STATEMENTS ADMITTED PURSUANT TO SECTION 115-10
Defendant argues the trial court erred by admitting out-of-court statements made by J.P. regarding defendant's acts involving H.P. and an out-of-court statement made by H.P. regarding defendant's acts involving J.P. We agree.
Section 115-10(a)(2) of the Code provides as follows:
"(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, ***, the following evidence shall be admitted as an exception to the hearsay rule:
(2) testimony of an out[-]of[-]court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child." (Emphasis added.) 725 ILCS 5/115-10(a)(2) (West 1992).
In People v. Embry, 249 Ill. App. 3d 750, 763, 619 N.E.2d 246, 255, 188 Ill. Dec. 882 (1993), this court construed section 115-10(a)(2) of the Code as "limiting the admission of out-of-court statements to those pertaining to an act, matter, or detail of a sexual offense committed upon the declarant child victim." However, this court also held that an exception exists where statements of a child about defendant's acts involving another child are "components of the contemporaneous and ongoing series of events constituting a matter or detail pertaining to the offense perpetrated against [the declarant] herself. " (Emphasis in original.) Embry, 249 Ill. App. 3d at 763, 619 N.E.2d at 255.
A. Burden of Establishing Admissibility of Hearsay
Statements Pursuant to Section 115-10
Initially, we address the State's argument that the out-of-court statements at issue are admissible even though--the State concedes--it is unclear whether defendant's acts on the other child occurred contemporaneously with the acts perpetrated against the declarant. The State contends defendant bears the burden to show the statements concerned separate occurrences. We disagree.
In People v. Zwart, 151 Ill. 2d 37, 43, 600 N.E.2d 1169, 1171, 175 Ill. Dec. 711 (1992), the supreme court held that the State, as the proponent of statements sought to be admitted pursuant to section 115-10 of the Code, bears the burden of establishing that they were reliable and not the result of adult prompting or manipulation. Similarly, we conclude the State, as the proponent of the statements here, bears the burden of establishing that the statements made by a child regarding defendant's acts against another child involve "components of the contemporaneous and ongoing series of events constituting a matter or detail pertaining to the offense perpetrated against [the declarant] herself. " (Emphasis in original.) See Embry, 249 Ill. App. 3d at 763, 619 N.E.2d at 255. Whether the statement qualifies as such depends on the particular circumstances in a given case. Some relevant considerations are the following: (1) the relationship of the declarant to the child upon whom the witnessed sexual act is perpetrated; (2) the proximity of such act--in time and place--to the act allegedly performed upon the declarant; (3) the similarity of the two acts; and (4) the existence of a common perpetrator. These considerations may be significant in explaining the declarant's willingness to submit to similar sexual acts, as well as her reluctance to resist, cry out, or complain to others.
B. Admissibility of Section 115-10 Hearsay
In this case, the trial court conducted a hearing and determined that statements J.P. and H.P. made to their aunt (Foley), their mother (Annette), Smith (the girls' former school principal), Pochel (foster mother), Devall (DCFS investigator), and Deerwester (deputy sheriff), including the audiotaped statements of the January 25, 1994, interview of J.P. at the sheriff's department, were admissible.
The jury heard, through the audiotape, one statement by J.P. that constituted double hearsay--namely, that H.P. told J.P. that H.P. had seen "white sticky stuff" coming out of defendant's penis. Such double hearsay does not come within the exception set forth in Embry. See Embry, 249 Ill. App. 3d at 763, 619 N.E.2d at 255; see also People v. Petitt, 245 Ill. App. 3d 132, 142, 613 N.E.2d 1358, 1367, 184 Ill. Dec. 766 (1993).
Further, the trial court admitted three hearsay statements by J.P. that clearly did not involve a matter or detail pertaining to an act committed contemporaneously against J.P. Devall testified that during his initial interview of H.P. and J.P. in October 1993, J.P. told him she watched from a tree as defendant touched H.P. with his hand. The audiotape contained a substantially similar hearsay statement by J.P. Finally, Smith testified that during Devall's January 25, 1994, interview of H.P. and J.P. at school, J.P. stated that, as she watched from a tree, defendant touched H.P. with his penis.
The trial court also admitted five hearsay statements by J.P. and one hearsay statement by H.P. which were unclear as to whether they constituted a matter or detail pertaining to an act committed contemporaneously against the declarant child. Devall testified that during the interview at school, J.P. stated she had seen defendant touch H.P. with his penis. The audiotape contained four hearsay statements by J.P. which were similarly unclear: (1) J.P. stated she had seen defendant touch H.P. with his hand, but no other part of his body; (2) she had seen "it" happen to H.P. in her grandmother's living room; (3) she saw defendant's "private" touch H.P.; and (4) she saw defendant's "private" go inside H.P.'s mouth "a little bit." Devall also testified that during the interview at school, H.P. told him she had seen defendant touch J.P. "in a bad way" in her maternal grandmother's kitchen.
Under the interpretation of section 115-10 as set forth in Embry (249 Ill. App. 3d at 763, 619 N.E.2d at 255), we conclude the trial court erred by admitting (1) one double hearsay statement by J.P., (2) three hearsay statements by J.P. that clearly did not involve a detail pertaining to an act committed against J.P., and (3) five hearsay statements by J.P. and one by H.P. that were unclear regarding whether they constituted a matter or detail pertaining to an act committed contemporaneously against the declarant child victim.
The State maintains that any error in admitting the hearsay statements at issue was harmless. We disagree. The trial court erred by admitting 10 hearsay statements by J.P. and H.P. through two trial witnesses and the audiotape. The evidence against defendant was not overwhelming. Both Foley and Peck testified that H.P.'s vagina becomes red and sore when H.P. drinks too much soda. Peck also stated that J.P. never has vaginal redness. Also, the statements by J.P. and H.P. contained inconsistencies. H.P. blamed both defendant and J.P. for her sore vagina; during the two interviews on January 25, 1994, J.P.'s statements about the incident she watched from the tree were inconsistent as were those regarding whether she saw "white sticky stuff" coming from defendant's penis. (At one point, J.P. stated that H.P. told her about the "white sticky stuff"). In addition, the medical testimony indicated that Dr. Patel's findings were inconsistent with full vaginal penetration and inconclusive as to "slight penetration."
Although we reverse, we conclude that the remaining evidence was sufficient to support a finding of guilt beyond a reasonable doubt. Thus, defendant faces no risk of double jeopardy on retrial. See People v. Cruz, 162 Ill. 2d 314, 374, 643 N.E.2d 636, 664, 205 Ill. Dec. 345 (1994).
We now consider issues likely to arise ...