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The People of the State of Illinois v. Robert Becker

December 2, 2010

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
ROBERT BECKER, APPELLEE.



JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.

OPINION

The principal issue presented for review in this appeal is whether the trial court abused its discretion when it excluded, at trial, the expert testimony of Dr. Katherine Okla, concerning the reliability/credibility of hearsay statements made by O.B., the alleged child victim of a sexual assault. The court had deemed the statements "reliable"--and thus admissible at trial--following a pretrial hearing conducted pursuant to the provisions of section 115--10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115--10 (West 2006)). Okla provided extensive testimony at that hearing. A secondary issue is whether statements of the victim, made five months after the alleged abuse, were sufficiently reliable to be admissible at trial.

On appeal below, with one justice dissenting, the appellate court reversed the judgment of the circuit court and remanded for a new trial, holding that the trial court had erred in excluding the defense expert's testimony on the ground that it would usurp the jury's role as the arbiter of the victim's credibility. Although the appellate court found it was unnecessary to decide the remaining issues raised by defendant in light of the foregoing determination, the court nonetheless addressed "the admission of hearsay statements and the closed courtroom during [the victim's] testimony since both issues are likely to arise again on remand." No. 3--07--0660 (unpublished order under Supreme Court Rule 23). The appellate court discerned no error in closure of the courtroom, nor in admission of most of the hearsay statements at issue; however, the appellate court majority did conclude that the trial court abused its discretion in allowing evidence of the victim's belated statements of September 19, 2003, and the court "preclude[d] their admission on remand." No. 3--07--0660 (unpublished order under Supreme Court Rule 23). Justice Holdridge dissented from that finding and from the majority's determination that Okla's testimony was improperly excluded at trial. For the reasons that follow, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

BACKGROUND

Defendant, Robert Becker, was charged by indictment in the circuit court of Peoria County with predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 2002)) and criminal sexual assault (720 ILCS 5/12--13(a)(3) (West 2002)). The alleged victim was defendant's three-year-old daughter, O.B. Defendant was initially found guilty after a bench trial and was sentenced to 14 years in prison. On appeal, his convictions were overturned, the appellate court having found that defendant had received ineffective assistance of counsel. People v. Becker, No. 3--05--0106 (2005) (unpublished order under Supreme Court Rule 23).

Prior to retrial, the State sought to introduce four hearsay statements made by O.B: (1) an April 21, 2003, statement she made to her mother, Amy Becker, immediately after returning from her father's house; (2) a statement made to her mother in May of 2003, about a "blue microphone"; (3) a July 1, 2003, videotaped interview with Detective Michael Eddlemon; and (4) a September 19, 2003, statement she made to her mother in the presence of her mother's friend, Olga Reyes.

The court scheduled a hearing, pursuant to section 115--10 of the Code (725 ILCS 5/115--10 (West 2006)), to determine whether the statements in question should be admitted at trial. Pertinent to our present inquiry, section 115--10 provides for admission of evidence and testimony concerning a statement of a child victim of sexual abuse, relating to the abuse, where the court finds, after a hearing, "that the time, content, and circumstances of the statement provide sufficient safeguards of reliability." 725 ILCS 5/115--10(a), (b)(1) (West 2006). If the statement is admitted at trial, "the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, *** the nature of the statement, the circumstances under which the statement was made, and any other relevant factor." 725 ILCS 5/115--10(c) (West 2006). Prior to the section 115--10 hearing, the State moved in limine to exclude Okla from testifying at both the section 115--10 hearing and the trial. The trial court admitted Okla's testimony for purposes of the section 115--10 hearing, but ultimately excluded it for purposes of trial.

At the section 115--10 hearing, Amy Becker testified regarding the statements made by O.B. in April and May of 2003. Amy stated that she picked her children up from defendant's Peoria residence on April 21, 2003, after visitation. On the way home from defendant's house, O.B. threw up in the car. When they arrived in Chicago, Amy put O.B. in the bathtub. As Amy tried to wash O.B., O.B. stood up, cried, and backed away. She told Amy that her "front bottom" hurt. Amy asked O.B. what happened, and O.B. responded, "Daddy hurt my front bottom." When Amy asked her what she meant, O.B. pulled her genitals apart and pointed to her vagina.

Amy removed O.B. from the bathtub and dressed her. Amy testified she then suggested that she be O.B. and O.B. be her father, and that they act out what happened. Amy stated: "I laid down on the floor and I think she must have told me to lay down, mommy, lay down. She said, now you pretend like you're asleep. She started kind of moving my hips and she said, now you say, no, daddy, please stop, you're waking me up. So I said, no, daddy, please stop, you're waking me up. And then she shook my shoulders and said, you woke yourself up, now go back to sleep."

Amy testified that approximately two weeks later, she was in the bathroom when O.B. came in and asked her if she knew about "dad's special blue microphone." Amy said, "No." O.B. then described it to her as blue and shiny at the top, and she said sometimes daddy poked her with it. O.B. told Amy it "hurt sometimes." Amy testified she had not been asking O.B. any questions or talking about defendant when O.B. made the statements.

On cross-examination, Amy admitted that, at a proceeding in July 2003, she had testified that when O.B. became upset in the bathtub she had asked "Is daddy hurting you?" and O.B. responded affirmatively. On redirect, Amy denied that she had initially told investigators that she had asked O.B. if defendant was hurting her.

Detective Michael Eddlemon testified that he was assigned to the juvenile division of the Peoria police department and had been with the department for 15 years. On July 1, 2003, he conducted a videotaped interview of O.B., who was four years old at the time. Eddlemon testified that the copy of the videotape presented in court fairly and accurately depicted the interview he conducted.

On cross-examination, Eddlemon acknowledged that he did not interview O.B. using any specific protocol for interviewing child abuse victims. He testified that Pam Coates, an investigator for the Department of Children and Family Services (DCFS), was also present for the interview. Both he and Coates asked O.B. questions. During the interview, O.B. stated, "My dad hurt me." Eddlemon asked, "Did your dad touch your front bottom?" O.B. responded affirmatively and whispered into Eddlemon's ear, "He put the blue microphone there." When Eddlemon asked O.B. if people were supposed to touch her there, O.B. responded in the negative. Eddlemon admitted there were numerous inconsistencies in O.B.'s answers during the course of the interview. He acknowledged that O.B. had stated the "blue microphone" came from defendant's head and that Amy had also touched her with the blue microphone. He did not ask O.B. to resolve the inconsistencies. He did, however, ask her if she understood the difference between the truth and a lie, and she stated she did. The circuit court then viewed the video.

The final statements at issue were uttered on September 19, 2003, when Amy had some friends over, one of whom was Olga Reyes. Reyes testified, as the adults talked after dinner, O.B. crawled into Amy's lap and said, "I miss my daddy, but he hurt my front bottom." Reyes indicated O.B.'s statement had nothing to do with the conversation the adults were having at the time. O.B. had never said anything to Reyes about the incident before. Later, when Amy was getting the children ready for bed, Reyes overheard O.B. say, "Don't go, I'm afraid daddy is going to hurt me. I'm afraid daddy is going to come."

Dr. Okla testified that she specializes in child and adolescent psychology and forensic evaluation, treatment and questioning in child abuse cases. Okla evaluated all of O.B.'s out-of-court statements by reviewing interview notes, transcripts and videos. She did not interview O.B. Based on her review of those materials, Okla testified that O.B. "may have been influenced" by "post-event information and improper techniques." With regard to O.B.'s statements to her mother, Okla underscored the significance of the impending divorce and O.B.'s desire to please her primary caregiver. Okla found the statements in the bathtub troubling because defendant's involvement was first suggested by Amy. She thought Amy also may have suggested the action by lying on the floor and asking O.B. to re-enact the event. As for O.B.'s interviews with various professionals, Okla testified that O.B.'s psychologist used suggestive and coercive questioning during counseling. Okla suggested that those actions may have undermined the reliability of the detective's interview and "likely" impacted O.B.'s ability to accurately report the event. Okla opined that O.B.'s ongoing psychotherapy may also have affected her ability to accurately report as it was a method of "rehearing."

Okla testified that Detective Eddlemon may have intimidated O.B. in his interview with her, by telling her that he had already spoken with her mother and brother. Okla also noted the lack of ground rules at the beginning of the interview: "[S]o we don't have any way of knowing whether or not this child understood that she wasn't supposed to guess; that she was not supposed to talk about pretend; that she was supposed to ask questions if she didn't understand; that she was supposed to correct the interviewer if they [sic] made a misstatement." Okla stated that Eddlemon should have questioned O.B. further on the issue of the "blue microphone" rather than accepting her terminology and moving on. In Okla's opinion, the most troubling part of the interview was the detective's failure to ask follow-up questions when O.B. changed her story and told Eddlemon that defendant pulled the blue microphone out of his head, that Amy tried to pull it out of defendant's head, and that Amy touched O.B.'s front bottom with the blue microphone as well.

Okla believed there was no reason for her to interview O.B. because "[t]here's no clean evidence left to get." Okla opined it was likely that O.B.'s memory and answers were tainted. She stated: "Now, it's too late for us to go back and say which of these things are true or false because she's heard it so many times. *** [I]t does educate you hopefully about all the reasons why you should or should not put weight on her credibility one way or the other." Although Okla did not give an ultimate opinion as to O.B.'s credibility, when asked directly by the court, Okla frankly stated her belief that O.B. could not give a "reliable" statement in person on the stand.

In a thorough 18-page order, the circuit court set forth its reasons for excluding Okla's testimony from trial and admitting the hearsay statements in question. With respect to the former ruling, the court noted, inter alia, defendant's response to the State's motion in limine wherein defendant indicated that Okla would testify "based upon the specific facts as reflected in the documented questioning and treatment of [O.B.], that [O.B.]'s ability to testify accurately as to the subject matter of the questioning has been significantly impaired." (Emphasis in original.) The court emphasized the mandate of section 115--10, that it is for the jury to determine the weight and credibility given to any statement admitted pursuant to that section, considering "the age and maturity of the child, *** the nature of the statement, the circumstances under which the statement was made, and any other relevant factor." The circuit court stated its belief that "the law in the State of Illinois" is expressed in People v. Wilson, 246 Ill. App. 3d 311 (1993), and quoted the following passage in that opinion:

"In refusing to allow defendant's expert to testify, the trial court noted that the expert testimony would unduly emphasize the children's testimony at trial, would reveal only general information about children as opposed to information about the child victims in this case, and would only provide common knowledge that defendant could argue to the jury without the aid of an expert. We agree. The limited cognitive abilities of children are well known, and any jury can be expected to take that factor into account when determining a child's ...


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