Appeal from the Circuit Court of Cook County. No. 01 JD 2958 Honorable Rodney H. Brooks, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Fitzgerald Smith
Following a bench trial, respondent T.T. was adjudicated delinquent of two counts of aggravated criminal sexual assault and sentenced to five years of probation. On appeal, respondent contends the trial court erred in finding the complaining witness, G.F., unavailable to testify at trial so as to warrant the preclusion of cross-examination. Furthermore, respondent, citing Crawford v. Washington, 541 U.S. 36, 158 L.Ed. 2d 177, 124 S.Ct. 1354 (2004), argues that G.F.'s statements to a police detective, a Department of Children and Family Services (DCFS) investigator, and a physician were testimonial in nature, and that the admission of those statements pursuant to statutory hearsay exceptions in the absence of an opportunity to cross-examine G.F. violated respondent's right to confrontation.
We note at the outset the Illinois Supreme Court has entered a supervisory order (In re T.T., No. 99227 (May 31, 2007)) directing this court to vacate our previous order in this cause (In re T.T., 351 Ill. App. 3d 976 (2004)) and to reconsider our decision in light of People v. Stechly, 225 Ill. 2d 246 (2007). Pursuant to that order, we have vacated our prior decision. However, upon consideration of Stechly, we find that it does not change the analysis or outcome of the instant matter.
Therefore, as we concluded previously, we hold, for the following reasons, the trial court properly determined that G.F. was unavailable. We also find that G.F.'s statements to the police detective and DCFS investigator were testimonial, and her statement to the physician identifying respondent as the perpetrator was testimonial. Because G.F. was not cross-examined at trial, her testimonial statements were not admissible where respondent had no prior opportunity for cross-examination. Because the trial court considered testimonial evidence in the absence of a prior opportunity for cross-examination, we reverse the judgment of the trial court and remand the cause for further proceedings not inconsistent with this opinion.
On May 24, 2001, the State filed a petition for adjudication of wardship of respondent, alleging he was delinquent by reason of committing two offenses of aggravated criminal sexual assault. Prior to trial, the State filed a motion under section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2000)) to admit G.F.'s out-of-court statements through her mother P.F., DCFS investigator Gloria Lewis, and Chicago police detective Patricia Dwyer. Section 115-10 provides, in relevant part, that in a prosecution for a sexual act perpetrated against a child under the age of 13, the testimony of the child's out-of-court statements describing any complaint of such an act or matter or detail pertaining to any act which is an element of the charged offense is admissible as an exception to the hearsay rule. 725 ILCS 5/115-10(a) (West 2000). Such testimony is only admitted if the court finds in a pretrial hearing that the time, content and circumstances of the statement provide sufficient safeguards of reliability and the child either testifies at the trial or is "unavailable as a witness" and there is corroborative evidence of the act which is the subject of the statement. 725 ILCS 5/115-10(b) (West 2000).
At the section 115-10 motion hearing, P.F., Lewis and Detective Dwyer testified generally consistently concerning G.F.'s statements about the events in December 2000, when she stayed for 21/2 days at the home of Denise T., her babysitter and respondent's mother. G.F. was seven years old at the time. Another girl, respondent's niece A.W., age six, was also there. During G.F.'s stay, respondent, then age 14, allegedly penetrated G.F.'s vagina and anus with his penis.
Specifically, P.F. testified she left G.F. at Denise T.'s home for baby-sitting on Monday afternoon, December 18, 2000. G.F. had known respondent for four years and called him "Pooh." G.F.'s sister picked G.F. up on Wednesday and returned her home about 11 a.m. As soon as G.F. entered the home, she told P.F., without prompting or questioning, that "Pooh" had "juiced" her and put his "ding-a-ling" in her "bootie" and her "fannie." Based on G.F.'s prior use of those terms, P.F. understood her to mean that respondent had sexual intercourse with her and put his penis in her buttocks and vagina. G.F. told P.F. that respondent did this to her on Monday and again on Tuesday, that it hurt at the time but not anymore, and that he said he would kill her if she told. G.F. said that respondent also "did" A.W. and that when G.F. told Denise T. and respondent's sister about the incidents, they bathed her. Then, P.F. asked G.F. if respondent put his "ding-a-ling" in her mouth, and G.F. answered no. P.F. did not contact the police or take G.F. for medical treatment. G.F. was not examined by a physician until May 7, 2001, after DCFS contacted P.F. DCFS investigator Lewis went to P.F.'s home on May 4, 2001, and spoke to P.F. and G.F.
DCFS investigator Lewis testified that she worked for the child protection unit for several years. Lewis estimated that 95% of her cases involved investigations of allegations of sexual abuse, and she had investigated hundreds of such cases. In March 2001, she received G.F.'s case based on a hotline report indicating G.F. told the reporter that her vagina had been penetrated with a finger. On March 8, 2001, Lewis spoke by telephone with the reporter and learned G.F. told the reporter that respondent put his finger in G.F.'s vagina. Lewis attempted to contact G.F. within 24 hours to assess her safety, but was not able to locate her. On March 12, 2001, Lewis was interviewed by a Ms. Bates, to whom Lewis conveyed the reporter's March 8 statement. Lewis went to P.F. and G.F.'s home several times and left letters, but never made contact with either of them until she drove to their home on May 4, 2001, and saw them leaving the residence. Lewis interviewed G.F. in Lewis's car while P.F. sat in the backseat. Lewis introduced herself to G.F. and asked her several general questions regarding her age, school and the color of clothing to determine how credible she was in her statements. Lewis determined that G.F. knew the difference between telling the truth and a lie. G.F. was talkative, quickly volunteered information, and gave detailed accounts.
Lewis testified that G.F. said she was at Denise T.'s house and playing with A.W. During the daytime, Denise T. went to the store and left G.F. and A.W. in the care of respondent's older sister, but she stayed in her bedroom with the door closed. Respondent entered the living room and told G.F. and A.W. that they were going to play wrestling. Respondent took G.F. into Denise T.'s bedroom and removed G.F.'s one-piece pajama outfit. When respondent pulled her panty down, G.F. tried to pull it back up. Respondent wore pajama bottoms and pulled them down to his thighs. G.F. told Lewis "Pooh" stuck his "thing" in her "fannie" and in her, pointing to indicate her vaginal area. G.F. said a "thing" was a "ding-a-ling." Respondent also took G.F. into the bathroom and stuck his "thing" in her "bootie." On another occasion, respondent had G.F. and A.W. in Denise T.'s bedroom. Respondent had A.W. in a closet and put G.F. on the bed and kissed her on both cheeks. Then, respondent put G.F. in the closet and A.W. on the bed. When G.F. tried to peek to see what respondent was doing to A.W., he threw a cover on her head so she could not see. Respondent told G.F. that if she told anybody, he would kill them, but G.F. told Denise T. and respondent's sister and told her mother as soon as she saw her. Lewis testified that P.F. did not participate in anyway when G.F. made her statement to Lewis. Moreover, Lewis never told G.F. what to say and never had to prompt her.
Detective Dwyer testified that she was investigating the sex crime involving respondent and met G.F. and P.F. at headquarters on May 23, 2001. Detectives Dwyer and Collins interviewed G.F. while P.F. sat right outside the open door of the conference room. The detectives told G.F. that they were police officers and were assigned to investigate sex crime cases. They asked G.F. general questions and determined she was credible, articulate and knew why she was there. The detectives asked G.F. what happened at Denise T.'s house, and G.F. said that respondent brought her into Denise T.'s bedroom and pulled her pants and panty down. When G.F. pulled them back up, respondent pulled them down again, put G.F. on the bed, and put his "thing" in her "privates." G.F. said a "thing" is what boys pee from and "privates" are what girls pee from, and she pointed to indicate her vaginal area. G.F. said that respondent then brought her into the bathroom and put his "thing" in her "bootie" and in her "privates." G.F. pointed to her behind to indicate what a "bootie" was. When the detectives asked how G.F. felt after that, she responded that it hurt her. G.F. said the next day respondent did it to her again in his bedroom and caused pain, and that A.W. was there in the closet. G.F. said respondent threatened to kill her if she told anybody, but she told Denise T. and respondent's sister. Dwyer testified that the detectives asked G.F. specific questions and she answered them very matterof-factly.
At the conclusion of the section 115-10 motion hearing, the State informed the court that it anticipated that G.F. would testify at trial. The trial court held that G.F.'s statements to P.F., Lewis, and Detective Dwyer would be admissible at trial because the time, content and circumstances of the statements provided sufficient safeguards of reliability.
At the trial in August 2002, Dr. Michelle Lorand testified as an expert in the area of pediatric medicine and child abuse and neglect. Dr. Lorand was an attending pediatrician and the chair, since 1992, of the division of child protective services in the pediatric department of Cook County Hospital. Also, she was currently the medical director of the medical clinic at the Chicago Children's Advocacy Center, which was run by Cook County. Dr. Lorand met G.F., who was accompanied by P.F., on May 7, 2001, in the emergency room. They had been referred by DCFS for a medical evaluation of alleged sexual abuse. Dr. Lorand introduced herself and explained she would conduct a physical exam of G.F., including everything that is generally incorporated into a pediatric physical exam and a careful examination of the genital and rectal areas. Dr. Lorand spoke first to P.F. alone, then spoke to G.F. alone to hear in her own words what, if anything, happened to her, and then examined G.F. with P.F. in the room.
When Dr. Lorand asked G.F. if she knew why she was at the hospital, G.F. said to be checked. Dr. Lorand asked if anybody had ever hurt her in her private parts or in the butt or buttocks area, and G.F. said yes. Over the defense's objection, Dr. Lorand testified that when she asked G.F. who hurt her, she responded "Pooh" and explained that he was the son of her mother's friend. Dr. Lorand asked what happened, and G.F. responded that he pulled her pants down to her knees and stuck his "thing" in front and in back, pointing to indicate her genital and rectal areas. G.F. said he put baby oil on his "thing," that it happened one time, that she told her mother when it happened, and she had not seen the person since then. G.F. said it hurt worse when he stuck it in back than in front. G.F. and her mother reported that G.F. never complained of any hard stool or bowel movement problems, and there was no bleeding or discharge from her vagina or anus.
Dr. Lorand then performed the physical exam. G.F.'s vaginal exam was normal, but her rectal exam revealed two scars, which indicated some tearing or laceration highly suspicious for penetrating-type trauma. Dr. Lorand explained that the vaginal area healed more quickly than the rectum, and some children healed completely from penetrating injuries to the vagina. Based on G.F.'s statement to Dr. Lorand and the physical exam, Dr. Lorand concluded that the injuries were older than two weeks and that G.F. was sexually abused.
When trial resumed in November 2002, the parties stipulated to the testimony of P.F., Lewis, and Detective Dwyer from the section 115-10 motion hearing. G.F. testified that she was nine years old. On direct examination, she answered general questions about her address, school, and family members and demonstrated she knew the difference between the truth and a lie. G.F. identified respondent in court and explained she had known him for some time as the son of her mother's friend, Denise T. In December 2000, G.F.'s mother took her by bus to Denise T.'s house. Although G.F. was supposed to stay there only one day, she stayed three days, sleeping in the living room with A.W.
G.F. testified that when she, A.W. and respondent were play-wrestling in Denise T.'s bedroom, respondent tried to unbutton G.F.'s pants. G.F. remembered how respondent did that, but then said "No," when the prosecutor asked her to tell the judge how respondent did that. When the prosecutor asked G.F. what happened next, G.F. did not respond. The prosecutor told G.F. that it was "okay to tell the judge exactly what happened," but G.F. said, "Nothing."
G.F. testified that the next day she and A.W. were sleeping in the living room, respondent was behind her but did "Nothing," and then the three went into Denise T.'s bedroom. G.F. did not respond when asked what happened next, but said "Yes," when asked if she wanted to take a break. The judge admonished the parties not to speak to G.F. regarding the case, but stated that G.F.'s mother could comfort her during the break. Before resuming, the prosecutor relayed G.F.'s request to testify from the witness stand, explaining G.F. "prefers to be behind here as long as she can be heard and seen." The trial court granted the request.
G.F. testified that respondent unbuttoned her pajama suit in Denise T.'s bedroom, but G.F. would not respond when asked what happened next. Several times during direct questioning, the court sustained defense counsel's objections to the prosecutor's leading questions or comments to G.F. that it was "okay to talk about it," and to "be honest." G.F. testified that something happened after respondent unbuttoned her pajama suit, but she would not respond when asked what happened next. During a sidebar, the prosecutor argued that he was entitled to lead the witness, but the trial court, acknowledging the sensitive nature of the proceedings, stated that G.F. must present the evidence without being led. Upon resumption of questioning, the following occurred:
"MR. HARVATH [Assistant State's Attorney]: Did anything else happen in Denise's room?
MR. HARVATH: Can you tell the judge what happened? It's okay.
MS. DAGO [defense counsel]: Judge, again I would object to comments by counsel.
MR. HARVATH: Can you tell the judge what happened? Can you tell the judge yes or no? Judge, I'm going to ask this witness be deemed and declared unavailable at this time." Defense counsel argued G.F. was responsive, said that nothing happened, and "her demeanor was one of kind of giggling at times or smiling." The trial court found that G.F. was unavailable where she "froze," noting she would not say anything after she testified that respondent unbuttoned her pajama suit. Defense counsel then sought clarification that G.F.'s responses "that nothing happened" would stand in the record. Initially, the trial court responded that none of G.F.'s testimony would be considered, but when the State argued there was no basis to strike G.F.'s testimony where it ...