Appeal from the Circuit Court of Marion County. No. 98-CF-1 Honorable Steven P. Seymour, Judge, presiding.
The opinion of the court was delivered by: Justice Hopkins
Defendant appeals from his conviction of the offense of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1996)). Defendant contends that his right to a fair trial was violated (1) when the trial judge read a transcript of the complaining witness's testimony to the jury during deliberations and (2) when the court admitted a highly prejudicial and irrelevant statement made by defendant. For reasons we will more fully explain, we reverse and remand.
On New Year's Day 1998, Tanya Harmon took her daughter, B.C., then six years old, to the emergency room of St. Mary's Hospital in Centralia, Illinois. The emergency room nurse, Judy Smith, testified at defendant's trial that she was on duty when B.C. and her mother arrived. B.C. told Judy that someone put his hand down her pants. Judy examined B.C. and noticed redness in B.C.'s vaginal area but no trauma that exclusively indicated sexual abuse. Judy testified that redness could result from poor hygiene, insufficient wiping after urination, or someone rubbing the area.
While Tanya and B.C. were at the hospital, officer James Ramsey, a Centralia police department patrolman, interviewed B.C. and Tanya. According to Ramsey, at first B.C. would not talk to him, but later B.C. said that she wished defendant would die because he hurt her by digging his fingers up into her. Ramsey testified that B.C. indicated where defendant hurt her by pointing to her vaginal area rather than by saying anything. After Ramsey questioned her further, she indicated that defendant did this to her "under her clothes."
Prior to trial, in response to one of defendant's motions in limine, the trial court allowed the State to conduct an offer of proof outside the presence of the jury. Ramsey testified in the offer of proof that after interviewing B.C., Ramsey arrested defendant, transported him to the police station, gave him his Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), and told defendant that someone reported that defendant touched B.C. inappropriately. Ramsey described what defendant said when he asked defendant if he had touched B.C. inappropriately:
"His response was he was arrested in Maine when he was thirteen for gross sexual misconduct [and] that he had done a lot of bad things in the past."
"[I wanted to] clarify exactly what[--]if he was answering my question or whether he was trying to lead with that. I asked him if he was talking about [B.C.] or if he meant he had been touching [B.C.] inappropriately, what he meant by that statement. At that point, he said [']I think I need to speak to a lawyer.[']"
Ramsey terminated the interview at that point.
Defendant's attorney asked Ramsey if defendant ever told him that he sexually assaulted B.C. Ramsey responded that defendant had not.
The trial court granted defendant's motion to bar evidence about defendant's arrest in Maine, since that occurred when defendant was a juvenile and is inadmissible under the Juvenile Court Act of 1987 (705 ILCS 405/1-10 (West 1986)). The State argued, however, that the portion of defendant's statement referring to doing a "lot of bad things" was admissible as a direct response to Ramsey's question about touching B.C. inappropriately. The State argued that the statement was admissible because it was just as likely that defendant was admitting to the charge against him as it was that he was referring to his juvenile problems. The State argued that any interpretation of the statement or the determination of what weight to give it should be made by the jury.
Defendant argued that the statement was inadmissible because defendant could not clarify it without divulging his juvenile conviction.
The trial court denied defendant's motion in limine to keep the statement out. The trial court found that the statement was "a specific response to a direct question."
Prior to the trial, the State filed a motion to allow the complaining witness, B.C., to testify via closed circuit television, based upon a letter from her therapist, Jean Nosbisch, to the Marion County State's Attorney. In the letter, Nosbisch stated that B.C. should be allowed to testify via closed circuit television because it was "necessary to prevent any further trauma to the six-year-old child," in that she was fearful of defendant and was having nightmares and "other symptoms of Post Traumatic Stress Syndrome [sic]." Defendant objected to the motion on the ground that it violated his sixth amendment right to confront the witnesses against him. The trial court granted the State's motion.
The State called B.C. as its first witness. In the courtroom, without the jury present, defendant's attorney informed the court that, "for strategy reasons," defendant requested not to be present in the courtroom while the jury viewed and listened to B.C.'s televised testimony. The record indicates that defendant waited in the law library, but it is not clear if defendant had a television available for viewing B.C.'s testimony.
When B.C. testified, the trial judge, the State's Attorney, defendant's attorney, the court reporter, B.C., and her mother were all present in one courtroom and the jury was in another courtroom watching B.C. on the television. B.C.'s testimony began as follows:
"THE COURT: [B.C.], I need to ask you a few questions. First of all, you remember last week we talked about telling the truth? Remember that?
THE COURT: And you know the difference between the truth and a lie? Correct?
B.C.: (The witness nodded her head.)"
At this point, the circuit clerk apparently came into the room where B.C. was testifying and commented that the "camera went static." There is nothing in the record to indicate whether the circuit clerk came from the courtroom in which the jury was watching B.C.'s testimony, there is nothing to indicate exactly what the clerk meant by "static," and there is nothing to indicate what anyone did to correct the problem. The trial judge responded by saying, "Thank you," and resumed questioning B.C.
"THE COURT: Okay, [B.C.], you remember last week, last Friday, and I talked to you a few minutes, and you are going to have to speak loud enough so that Officer Ramsey can hear you. Could you do that?
THE COURT: You remember you told me you would tell the truth?
THE COURT: And you remember we talked about the difference between the truth and a lie. Remember?
THE COURT: *** You told me you would ...