The opinion of the court was delivered by: Chief Justice Harrison
Docket Nos. 87382, 87434 cons.-Agenda 10-May 2000.
In both of these cases, consolidated here, the defendant was convicted of predatory criminal sexual assault of a child. In one, cause No. 87382, we consider the right of confrontation granted by the United States Constitution and the Illinois Constitution (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8). In the other, cause No. 87434, we consider the right of due process granted by the United States Constitution (U.S. Const., amend. XIV, §1). We address each cause separately.
In cause No. 87382, the defendant, Anthony W. Lofton, was charged by indictment in Kane County with two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1996)), arising out of an incident that occurred early in September 1996. The defendant, a friend of the mother of the child, was alleged to have placed his finger in and on the vagina of M.H., five years old at the time. On the morning of defendant's trial by jury in February 1997, the State was heard on its motion that M.H. be permitted to testify by way of closed-circuit television, which motion the defendant resisted. Section 106B-5 (725 ILCS 5/106B-5 (West 1996)), concerning testimony by a child victim and commonly known as the Child Shield Act (People v. Van Brocklin, 293 Ill. App. 3d 156, 166 (1997)), provides in part,
"(a) In a proceeding in the prosecution of an offense of *** predatory criminal sexual assault of a child ***, 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:
(1) the testimony is taken during the proceeding; and
(2) 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.
(b) Only the prosecuting attorney, the attorney for the defendant, and the judge may question the child.
(d) Only the following persons may be in the room with the child when the child testifies by closed circuit television:
(1) the prosecuting attorney;
(2) the attorney for the defendant;
(4) the operators of the closed circuit television equipment; and
(5) any person or persons whose presence, in the opinion of the court, contributes to the well-being of the child, including a person who has dealt with the child in a therapeutic setting concerning the abuse, a parent or guardian of the child, and court security personnel.
(e) During the child's testimony by closed circuit television, the defendant shall be in the courtroom and shall not communicate with the jury if the cause is being heard before a jury.
(f) The defendant shall be allowed to communicate with the persons in the room where the child is testifying by any appropriate electronic method.
(g) The provisions of this Section do not apply if the defendant represents himself pro se.
(h) This Section may not be interpreted to preclude, for purposes of identification of a defendant, the presence of both the victim and the defendant in the courtroom at the same time.
(i) This Section applies to prosecutions pending on or commenced on or after the effective date of this amendatory Act of 1994." 725 ILCS 5/106B-5 (West 1996).
At the hearing on this motion, the child's mother testified on direct examination that M.H. said of her feelings about seeing Anthony Lofton again "that [M.H.] was afraid and she doesn't want to have to look at him [defendant]." Her mother compared the child's altered behavior immediately after the incident with her much improved behavior at the time of trial. Immediately after the incident, the child's mother stated,
"[M.H.] wouldn't eat. She wasn't sleeping. If someone would knock on the door, she was real jumpy. When she would go in the bathroom to do normal body functions she took her feces and spread it all over the walls. She colored all over the walls with crayons. Withdrawn. She is usually friendly and talkative. She wouldn't open her mouth to anyone."
M.H.'s mother said that after Christmas of 1996 the child was her "normal self." However, after her mother informed her two days before trial began that she would have to testify about this matter, her mother said, M.H. had "been having nightmares again. Not eating really. Not sleeping, and she said she didn't want to come. She didn't want to see him [defendant]." The child's mother answered in the affirmative the question posed to her by the State as to whether she felt that her daughter "would suffer some trauma if she were forced to come into the courtroom and testify about what Mr. Lofton did to her in his presence." Responding to a question on cross-examination, she stated, "I think she will have some trauma if she has to testify and look at your client, yes." Ray Bramel, a sexual assault coordinator at the Community Crisis Center in Elgin, testified likewise about the child's extreme withdrawal shortly after the incident occurred and her dramatic improvement since that time. This witness testified that on the morning of the hearing M.H.'s "words were to please keep us safe from Anthony" but that in all other respects she was "assertive, full of affect, lively."
In ruling on this motion, the trial court stated,
"Now, in order for this closed circuit television testimony to occur the Court must make a finding either that the child's testimony in the courtroom will result in the suffering of 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. Thus far, the testimony that I have heard is all focused on the child's fear of the defendant and the effect that seeing the defendant will have. I have heard nothing thus far that would suggest that testifying in the presence of a jury would have such an adverse effect. That was the opinion in the case cited by the State, People v. Scott, [284 Ill. App. 3d 336 (1996)], where the child's mother opined that the child could not testify in the courtroom in front of the jurors because she was shy and embarrassed. The setup of this courtroom is such that we can-some accommodation I believe is called for here. We can position the child in front of the jury with her back to the defendant. We can move these podiums behind her, and we can bring her into the room before the jury comes in and before the defendant comes in. I am willing to allow an individual, whether it be Miss Bramel or the child's mother, to sit in close proximity to the child during her testimony so long as they do not communicate with the child or in any way impede the questioning of the child. In this way the child will not see the defendant yet she will be testifying in front of the jury so that they can observe her. She may be questioned and cross-examined in front of the jury and never have to see the defendant. This would require, Mr. McCulloch [defense counsel], that you position yourself away from the counsel table during your questioning. I would, of course, permit you to make frequent trips back to your client to confer with him during the course of the testimony.
Now, if it proves that the child cannot communicate in front of the jury and if that showing is made in-by her inability to communicate then, of course, I would consider and that would give me a basis upon which to make a necessary finding, but I would like to try this in this modified courtroom setup before we move to the closed circuit television. That's how I will rule.
Let's take a moment then to position a chair and to position the podiums. We will take a recess, and we'll have the child brought in before the defendant comes back."
After M.H. was seated as a witness, the trial court stated outside the presence of the jury, "We are in open court. The defendant is present with his attorney, Mr. McCulloch. Both prosecutors are present. And the alleged victim is seated in a chair directly in front of the jury box. Behind her are two podiums that are placed together, and seated next to her is our court reporter, Miss Hogan." Thereupon the following colloquy ensued between defense counsel and the trial court:
"MR. McCULLOCH: So the record is accurate, I don't want my silent assent to appear as an agreement to this procedure because I think that this is very peculiar. From where we sit we cannot see the witness. I'm not suggesting that the Chinese wall approach is what we sought nor do we think it's appropriate. Everything-
THE COURT: Mr. McCulloch, you are free to reposition yourself by all means so that you can see the witness. And I will not obstruct you in any way in doing that. I stated the purpose for this arrangement, and I think it is the least obtrusive way of accomplishing a needed result and based on the testimony I heard. If you want to move your chair you are free to do so.
MR. McCULLOCH: You would agree that it is peculiar in that it isolates the witness, and the jury gets the sense of being isolated, us being isolated from her, and anything I do to reposition it just sort of reinforces that problem.
THE COURT: I will give you an option here. Do you prefer the closed ...