Appeal from Circuit Court of Sangamon County. No. 01CF628. Honorable Steven H. Nardulli, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
In a bench trial, the trial court found defendant, Henry L. Miles, guilty of one count of predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 1998)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 1998)). The latter offense merged into the former, and the court sentenced him to six years' imprisonment.
Defendant appeals on the ground that the trial court erred in admitting hearsay statements of the alleged child victim, C.M. Despite our deferential standard of review, we agree with that contention. Because the verdict depended so heavily on the credibility of witnesses, the error was not harmless. We therefore reverse the judgment and remand this case for a new trial.
On June 29, 2001, the State filed a criminal complaint and on August 23, 2001, a superseding indictment. All three counts of the indictment charged defendant with sexually violating C.M. on November 12, 1999. Counts I and II charged predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 1998))--penetration of the anus and vagina, respectively, with his finger. Count III charged aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 1998)) in that he touched C.M. for sexual arousal or gratification.
B. The Section 115-10 Hearing
On January 31, 2002, the trial court held a section 115-10 hearing, in which the State called two witnesses: C.M.'s mother, Shalores M., and a sheriff's detective, Leah Boston.
Shalores testified that defendant was a friend of the family and her mother's "boyfriend." They called him "Mr. Mickey." In the early evening of November 12, 1999, defendant came to Shalores's house for a visit and told her he was going to the store. After he left in her mother's car, Shalores learned he had taken along three-year-old C.M. and another child, Natalia. He returned an hour later with the children, and C.M. had a can of soda in her hand. As "everybody [knew]," Shalores forbade her children to drink soda. Shalores noticed C.M. "had a sad look on her face. *** [S]he looked bothered."
Soon after defendant left for the evening, "C.M. *** complain[ed] about her bottom hurting." Shalores testified she put C.M. in the bathtub, and as soon as her bottom touched the water, C.M. began screaming. Her buttocks and "genital area"- 1 -appeared to be "real red and irritated[-]looking." Shalores asked her, "['W]hy are you screaming? Why is your butt hurting like this?'" C.M. replied "that Mr. Mickey [had] scratched her."Shalores denied asking C.M. "any other questions." She merely "got her out of the tub and *** waited for a ride" from her friend, Jo Elle Waters. Waters was "coming by anyway," and "when she showed up," Shalores asked her to take her and C.M. to the hospital. En route, Shalores refrained from asking C.M. for more information. "[I]f it were *** a fact that something happened, I didn't want them to think I [had] coaxed my child," she testified.
At the hospital, Shalores "just assumed that [her mother, Trudy Hopkins, had been] giving [C.M.] bubble baths *** and maybe bubbles [were] irritating her." The doctor "agreed and *** gave her cream." C.M. had suffered from an irritation like this before. Shalores testified, however, that as the doctor was filling out the discharge papers, she "called the doctor--the nurse outside[,] [into the hallway,] and told them to ask [C.M.] why she was hurting." They asked C.M. that question, and C.M. replied, "'Mr. Mickey scratched me.'"
Shalores testified a social worker then came on the scene "and talked to [C.M.] as well."
On cross-examination, Shalores admitted it was possible that the sad expression on C.M.'s face when C.M. returned from the store with defendant was an expression "of guilt in that she knew she wasn't supposed to have soda."
Defense counsel tried to elicit from Shalores a more detailed account of what C.M. had told her. Shalores remembered C.M.'s telling her that defendant had "scratched" her in the backseat of "Grandma's car," but Shalores did not recall asking C.M. "how it happened" or any other follow-up questions. Defense counsel asked Shalores:
"Q: Do you recall telling Dr. [Victoria] Nichols-Johnson that you asked [C.M.] who would do such a thing[,] that is, *** make her bottom hurt, and that [C.M.] responded, *** 'Mr. Mickey would not do it' ***?
Q: So, when did [C.M.] tell you that [']Mr. Mickey would not do it,['] referring to hurting her butt?
A: I can't remember if it was before *** I put her in the tub or when I got her out, but I actually forgot about that, blocked it out.
Q: You blocked that statement of hers out?
A: I blocked a lot of this out.
Q: What was it that prompted that statement from her [that 'Mr. Mickey would not do it']? In other words, what did you say to her before she made that statement?
A: I don't remember. I don't remember."
On redirect examination, the prosecutor asked Shalores:
"Q: Do you recall being at the hospital and *** someone['s] asking [C.M.], 'Who would do this to you?' Do you remember anything like that being said?
A: I can't remember if the nurse or the doctor asked her that, but, yes, I do remember that.
Q: Do you remember how she responded, or her initial response--her first response was?
A: I can't remember, [be]cause they've asked her that question so many times. I don't remember."
Shalores insisted, however, that C.M. "brought Mr. Mickey's name up herself. I never brought his name up to her, she brought the name up."
Boston testified she interviewed C.M. on November 16, 1999, but neither audiotaped nor videotaped the interview. Boston asked her "if anyone had done anything bad to her," and C.M. nodded yes. Boston testified as follows:
"A: *** I asked her if Mr. Mickey had done anything to her. I asked if Mr. Mickey had touched her.
Q: All right. How did she respond to that?
A: She said that he touched her butt. Or, at one point in time, she said, ['H]e scratched my butt.['] I don't recall, specifically, right at this time, which time she said that." Using a doll, Boston asked her "to show us what had happened."
C.M. "turned the female doll over on its stomach and inserted an index finger into the anus of the female doll, up to the second knuckle. *** She said something to the effect [of] [']he put it in right here. He stuck it in right here, like this, or he put it in like this.[']" Because C.M. told her she had a dress and pants on, Boston "asked her how he could do that over her underwear." C.M. merely "leaned forward and pointed to the back waist of her clothing."
According to Boston, Natalia was unable to corroborate C.M.'s story.
The trial court found that "[t]he time[,] content[,] and circumstances of the statements, both to Shalores M[.] and Leah Boston, provide[d] sufficient safeguards of reliability." The court detected no "motive of bias on the part of the child" and did not consider the questions Boston asked her to be "improperly suggestive."
On April 8, 2002, the State called five-year-old C.M. as its first witness in the bench trial. The prosecutor asked her:
"Q: [W]hat was the name that you called Grandma's friend?
Q: Mr. Mickey. Okay. And one time did you go somewhere with Mr. Mickey and something happen[ed]? [Objection sustained on the ground of compound question.]
Q: Do you remember ever going for a ride with Mr. Mickey?
Q: Do you remember sometimes being with Mr. Mickey?
Q: *** [W]hen you rode in the car sometimes, who drove the car?
Q: Mr. Mickey. Okay. And one time when you rode in the car and Mr. Mickey was driving, did something ...