Appeal from the Circuit Court of Cook County. No. 08 CR 06996 Honorable John J. Scotillo, Judge Presiding.
The opinion of the court was delivered by: Justice R. Gordon
JUSTICE R. GORDON delivered the judgment of the court, with opinion. Justices Hall and Garcia concurred in the judgment and opinion.
¶ 1 After a jury trial, defendant Baldomero Garcia was convicted of two counts of predatory criminal sexual assault and sentenced to two eight-year consecutive sentences in the Illinois Department of Corrections for his conduct toward L.P. (the victim), the five-year-old daughter of defendant's live-in girlfriend. On appeal, defendant argues: (1) the State did not prove him guilty beyond a reasonable doubt, (2) the trial court erred by admitting the victim's out-of-court statements into evidence, (3) the trial court erred by permitting the State's expert to testify to a medical opinion for which there was no foundation, and (4) defendant's due process rights were violated when he did not receive a fitness hearing and no independent judicial determination of defendant's fitness was made. For the reasons that follow, we affirm.
¶ 3 On April 7, 2008, defendant was charged with multiple counts of predatory criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse, and criminal sexual abuse, for conduct occurring between January 1, 2008, and March 5, 2008. Defendant was charged with a total of 48 counts.
¶ 4 I. Pretrial Proceedings
¶ 5 On October 6, 2008, the State filed a motion seeking a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-10 (West 2006)) in order to admit certain statements made by the victim to several witnesses into evidence.
¶ 6 On November 18, 2008, defendant filed a motion to suppress any statements that defendant made to police, and on January 12, 2009, defendant filed an amended motion to suppress, claiming that he was not advised of his Miranda rights and did not knowingly, intelligently, and voluntarily waive them.
¶ 8 On January 12, 2009, the parties came before Judge John Scotillo in Rolling Meadows*fn1 on both the State's section 115-10 motion and defendant's motion to suppress. Prior to the hearing, Assistant Public Defender (APD) Larry Kugler informed the trial court that he had attempted to speak with defendant several times about the case and had a bona fide doubt of defendant's fitness; consequently, defense counsel requested a fitness evaluation, which the court ordered.
¶ 9 On March 5, 2009, a letter was received by the trial court from Andrew Segovia Kulik, M.D., a forensic psychiatrist with Forensic Clinical Services, stating that Dr. Kulik attempted to evaluate defendant on February 23, 2009, but was unable to render a fitness opinion because defendant was uncooperative during the interview. Dr. Kulik believed that defendant's refusal to cooperate was volitional in nature and not due to any severe psychiatric illness.
¶ 10 On the same day, APD Kugler requested that defendant be reevaluated, since he still had a bona fide doubt of defendant's fitness. After speaking with defendant, APD Calvin Aguilar, APD Kugler's partner on the case, agreed, stating that he also had a bona fide doubt of defendant's fitness based on defendant's responses. The trial court entered another court order for an evaluation of defendant's fitness to stand trial, telling APD Kugler that "[w]e have to have a hearing if you have a bona fide doubt."
¶ 11 On April 23, 2009, the parties returned before the court concerning defendant's fitness evaluation. The trial court read a letter*fn2 dated April 17, 2009, in which Dr. Kulik stated that he attempted to evaluate defendant for a second time and was unable to render an opinion due to defendant's continued refusal to cooperate. The trial court suggested the matter be set for trial, but APD Kugler stated that "I'm unable to represent this defendant. I still have a bona fide doubt as to his fitness. I'm not a psychiatrist. All that I know is that I have a client who is not working with me. I'm unable to work with this client." The State stated that in light of APD Kugler's statement that he had a bona fide doubt of defendant's fitness, the matter needed to be set for a fitness hearing. The trial court entered an order transferring defendant's case to 26th and California for the purpose of a fitness hearing.
¶ 12 On May 12, 2009, another fitness evaluation was ordered by Judge Joseph Claps at 26th and California. On July 1, 2009, a letter was received from Roni Seltzberg, M.D., a staff forensic psychiatrist with Forensic Clinical Services, that stated that Dr. Seltzberg attempted to evaluate defendant on June 30, 2009, and that defendant responded that he " 'didn't remember' or 'didn't know' " to most of the questions posed to him concerning fitness issues. Dr. Seltzberg stated that "[t]his was in contradistinction from his apparent ability to retain explanations of courtroom terminology that he reported having no previous knowledge of, and further in contradistinction to other information that he did offer upon questioning." Dr. Seltzberg opined that defendant was malingering. Dr. Seltzberg concluded that "[a]t this time, there is no evidence to suggest that Mr. Garcia is unaware of the nature of the charges or purpose of the proceedings against him, nor that he would be unable to assist counsel in his defense if he chose to do so," but stated that she would nevertheless refer him for psychological testing, which could further help to determine defendant's fitness.
¶ 13 On July 23, 2009, another letter from Dr. Seltzberg was received. The letter stated that psychological testing was scheduled for July 22, 2009, but had been canceled because an interpreter was not available. The letter requested a continuance in order to complete the evaluation, and the court granted a continuance. Several additional letters requesting continuances were subsequently received, and on September 18, 2009, a letter from Dr. Seltzberg to the trial court was received in which Dr. Seltzberg concluded within a reasonable degree of medical and psychiatric certainty that defendant was fit to stand trial based on her review of the available records, including psychological testing and clinical examinations.
¶ 14 On the same day, the parties came before the court for the fitness hearing. The court and APD Arthur Willis engaged in the following colloquy:
"APD WILLIS: Your Honor, this matter was transferred to us for fitness testing back in May of this year. We finally have a report from Dr. Seltzberg. The report states that Mr. Garcia is fit to stand trial.
THE COURT: You don't want a hearing?
APD WILLIS: Fitness is presumed, Judge. There's no hearing."
The case was transferred back to Judge Scotillo in Rolling Meadows the same day.
¶ 15 On September 24, 2009, the parties came before Judge Scotillo and discussed the proceedings before Judge Claps:
"APD DANIEL NARANJO: Before this was sent to 26th Street, I believe Mr. Garcia was -- this is Larry Kugler's client. I believe he's a public defender client, Judge.
THE COURT: I don't know. I think maybe that you're right. He was sent for a fitness hearing.
THE COURT: Do you know the outcome of that? APD NARANJO: I don't.
ASSISTANT STATE'S ATTORNEY [(ASA)] LYNN
PALAC: Your Honor, he was found fit.
THE COURT: He was found fit?
¶ 16 On October 14, 2009, the parties came before the trial court to set a date for defendant's motion to suppress and the State's section 115-10 hearing. The trial court recounted the proceedings concerning fitness:
"THE COURT: Okay. The defendant was -- the defense indicated that they had a bona fide doubt as to fitness. A hearing was held, and he was found fit."
¶ 17 On October 26, 2009, the parties again came before the court, and the ASA informed the court that, in reviewing the court file, she noticed that Forensic Clinical Services had found defendant fit to stand trial, but had not examined him for ability to understand his Miranda rights or sanity at the time of the offense. In discussing whether the court should enter another order, the court noted that "because the public defender indicated there was a bona fide doubt as to fitness, a fitness hearing had to be held," and APD Naranjo stated that "now that the fitness hearing has been had, Judge, and he has been found fit, I believe we're in a better position to speak to him regarding the other issues we need evaluated." The court reordered evaluations for the issues of sanity and Miranda.
¶ 18 On January 7, 2010, a letter from Dr. Seltzberg to the trial court was received. In the letter, Dr. Seltzberg stated that she evaluated defendant a number of times, most recently on December 2, 2009, concerning defendant's sanity at the time of the offense and his ability to understand his Miranda rights. Dr. Seltzberg opined, to a reasonable degree of medical and psychiatric certainty, that defendant was legally sane at the time of the offense. Due to defendant's lack of cooperation, Dr. Seltzberg had no opinion as to defendant's ability to understand his Miranda rights.
¶ 19 No other proceedings concerning defendant's fitness were held.
¶ 20 B. Section 115-10 Hearing
¶ 21 On February 11, 2010, the parties came before the trial court for a hearing on the State's section 115-10 motion to admit certain statements made by the victim into evidence. The State's first witness was Elvia G., who was "like a cousin" to Elizabeth, the victim's mother. Elvia testified through an interpreter that on March 14, 2008, she was living in an apartment in Palatine with Carlos, her husband; Elizabeth; defendant; and the victim, who was five years old at the time. Elizabeth, defendant, and the victim had been living with Elvia and Carlos for approximately two weeks. Elvia testified that she had known the victim since she was a year old and would baby-sit her when Elizabeth and defendant were not home.
¶ 22 Elvia testified that on the morning of March 14, 2008, she asked the victim if she wanted eggs for breakfast, and the victim began talking about defendant's "eggs." The victim told Elvia that defendant "put his eggs in her parts" and that he did so both "[i]n the front" and "from the back." When the victim discussed her "part," she touched her vaginal area and her buttocks. The victim told Elvia that she was facedown when defendant touched her and that it hurt her; the victim told Elvia that she would cry and defendant would place his hand over her mouth so that she would not scream. The victim told Elvia that defendant was clothed and forced the victim to take her clothes off.
¶ 23 The victim told Elvia that the incidents occurred on the bed in the bedroom where Elizabeth slept at the apartment they lived in prior to moving in with Elvia. The victim told Elvia that this occurred during the day "[a]ll the time while her mother was working," but could not tell Elvia the number of times it occurred because she did not know; Elvia testified that the victim did not know how to count. She also told Elvia that if she did not remove her clothes, defendant would hit her.
¶ 24 Elvia testified that after the victim told her about the incidents, Elvia called Carlos, her husband, who told her to call the victim's aunt, Maria Elena P. When Elvia called Maria, Maria came to the apartment and spoke with the victim.
¶ 25 Elvia testified that her conversation with the victim lasted between 20 and 30 minutes. She further testified that she had never heard the victim call male private parts "eggs" before, nor had she ever heard the victim use any word to describe male genitalia. She testified that she did not ask the victim any questions but that the victim simply told her everything.
¶ 26 The State's next witness was Maria Elena P., Elizabeth's sister-in-law, who also testified through an interpreter. Maria testified that she had known the victim all her life and that Elvia was her cousin's wife. Maria testified that she did not visit the victim at all when the victim lived with defendant, but that when the victim had lived with her father, Maria's brother,*fn3 she saw her every day, since Maria lived there as well.
¶ 27 Maria testified that on March 14, 2008, she received a phone call from Elvia and went to Elvia's home. On the phone, Elvia told Maria that "the girl was telling her things," but did not tell Maria what the victim had told Elvia. When she arrived, Maria spoke to the victim in the living room with Elvia present; Maria did not speak with Elvia prior to talking to the victim. Maria asked the victim "what was happening with her" and the victim told Maria that defendant "put his eggs on her parts." The victim pointed to her vaginal area as the area where defendant "put his eggs." The victim told Maria that defendant told her to take off her clothes and that one evening, defendant came to her room to turn off the heater and touched her. The victim indicated that defendant would touch her in the vaginal area and in the chest area. Maria did not ask the victim any other questions but was angry and called the police.
¶ 28 Maria testified that she did not ask the victim what an "egg" was, because in Mexico, where Maria was from, "we know what the eggs are. *** That's how they call the man's part, eggs." Maria testified that in Mexico, both adults and children refer to a man's penis as "eggs," but that she had never previously heard the victim use that term. Maria testified that the victim told her the incidents occurred in the bedroom of their previous home.
¶ 29 The State's next witness was Ninfi Martinez, a forensic interviewer and therapist at the Children's Advocacy Center (the CAC) of North and Northwest Cook County. Martinez testified that on March 14, 2008, she interviewed the victim at the CAC; the interview was conducted in Spanish. Martinez met the victim in the waiting room and introduced herself to Elizabeth, then walked the victim to the interview room reserved for small children, known as the "Mickey Mouse" room. The room contained a one-way mirror, behind which were several individuals observing the interview, including a detective from the Palatine police department and an assistant State's Attorney; the room did not contain any recording devices. Prior to the interview, Martinez had been given the names of the child, Elizabeth, and defendant, and knew that there had been some inappropriate contact, but had no additional information.
¶ 30 Martinez testified that the victim was five years and nine months old at the time of the interview and appeared "somewhat scared" and timid. Martinez asked the victim her name and age, which the victim gave; when the victim said she was five years old, she held up five fingers. Martinez asked if she could count her fingers, and the victim was able to count them correctly from one to five. The victim told Martinez that she was not attending school because she had moved. Martinez asked the victim who she was living with and the victim answered that she lived with Elvia, Carlos, and Elizabeth. Martinez asked the victim where she lived before, and she said that she lived in another house with Elizabeth and nobody else. The victim stated that there were no beds in the previous home and that they slept on blankets; the victim told Martinez that Elizabeth only slept with her and nobody else. The victim testified that she had no siblings or cousins, but only friends.*fn4 Martinez asked if anyone was behaving badly with her, and the victim replied only that a girl at school had bitten her chest.
¶ 31 Martinez asked the victim if she knew the difference between the truth and a lie, and the victim did not answer. Martinez then explained that she gave the victim three examples and the victim was required to tell her if the example was the truth or a lie. First, Martinez said that Elizabeth was sitting in the room, and the victim stated that was the truth. Next, Martinez said that the victim's name was L.P., and the victim stated that was the truth. Finally, Martinez said that it was raining inside the interview room, and the victim stated that was the truth. They then took a break from the interview, which lasted approximately 10 minutes.
¶ 32 After the break, Martinez asked the victim if she liked to draw, and they began drawing pictures of Mickey Mouse. After they began drawing, the victim suddenly and quietly told Martinez not to tell Elizabeth, but defendant was putting his "huevos," or "eggs,"*fn5 "[r]ight here," pointing to her vaginal area. She further stated that when he put his "eggs" there, he moved back and forth. She told Martinez that when Elizabeth was not at home, defendant would remove the victim's clothes and his pants. Martinez asked the victim what happened after defendant removed her clothes and his pants, and the victim did not respond. Martinez asked the victim if she had actually seen defendant's "eggs," and the victim said yes; she grabbed a crayon and made a long u-shape on the paper and said that those were defendant's "eggs."
¶ 33 Martinez testified that the victim told her that the incidents occurred when Elizabeth went to work and defendant stayed home with the victim. Martinez asked the victim why she did not mention that defendant lived with her earlier, but the victim did not answer. Martinez also asked the victim why she said not to tell Elizabeth, and the victim replied that Elizabeth would be angry.
¶ 34 Martinez then gave the victim an anatomically correct drawing of a male child, explaining to the victim that "it is a special drawing and not for playing because it has all the body parts."
Martinez asked the victim to mark on the drawing the parts of the body that the victim called the "eggs." The victim took a crayon and made a mark on the drawing's penis; Martinez testified that the victim specifically made a mark on the penis and not the testicles. Martinez asked the child how many times she saw that part of defendant's body, and the victim told her "[m]any, many, many times."
¶ 35 Martinez then gave the victim an anatomically correct drawing of a female child, again explaining to the victim that it was a special drawing because it had all of its body parts. She asked the victim to mark the parts of the body that defendant had touched with his "eggs." The victim marked the drawing's vagina and buttocks. Martinez pointed to the mark that the victim had made on the drawing's vagina and asked the victim what defendant did with his "eggs" on that part of her body. The victim replied that he "put them in there" and moved her hips back and forth. The victim said that defendant did that to her "many, many, many times." Martinez then pointed to the mark that the victim had made on the drawing's buttocks and asked how defendant had touched that part of her body. The victim replied that he had touched it with his "eggs." Martinez asked the victim how she felt about it and the victim replied that she "felt bad," but was unable to explain what "bad" meant. Martinez asked the victim how many times defendant had put his "eggs" on her buttocks, and the victim replied, "many, many, many times, 1, 2, and 3" and wrote numbers on a piece of paper. The victim later said that defendant touched her buttocks "more times, many times and she said eight and nine. And then she wrote eight and nine on the piece of paper." The victim said that nobody else had ever done anything like that to her.
¶ 36 Martinez asked the victim where she was when defendant put his "eggs" in those parts of her body, and the victim stated that it was in Elizabeth's bedroom and that defendant laid her down on the floor, then lay on top of her and began moving back and forth. Martinez asked the victim if she told anyone about what defendant was doing to her, but the victim said "nobody." Martinez testified that the interview lasted approximately an hour, after which Martinez took the victim back to Elizabeth.
¶ 37 Martinez testified that the purpose of a forensic interview such as the one she conducted with the victim is not to determine whether or not a child has been sexually abused but to "conduct a fact finding interview." Martinez further testified that the questions she asked the victim were open-ended and that it was not normal for a five-year-old to have knowledge of the acts that the victim described; Martinez testified that the victim had age-appropriate use of the terminology that she used. She further testified that the victim did not have any names for her vaginal area or her buttocks.
¶ 38 Martinez testified that the term "huevos," or "eggs," is widely used in Mexico, including in movies, television, and songs. The term is not used to describe the breakfast food, but is used to describe the penis and testicles, "in the same way that [Martinez had] heard the word balls used in the U.S.A. to describe the male parts." It is an adult term, "but if the children listen to them they will use those words." Martinez testified that "it is very common" to hear other Spanish-speaking children the victim's age use the word to describe the penis.
¶ 39 After the three witnesses had testified, the trial court found their testimony as to the victim's statements about the charged offenses admissible pursuant to section 115-10 of the Code.
¶ 40 C. Suppression Hearing
¶ 41 On March 11, 2010, the parties came before the court for a
hearing on defendant's motion to suppress any statements he made to
police. The defense's first witness was Detective Carlos Gonzalez of
the Palatine police department. Gonzalez testified that he interviewed
defendant at approximately 10 p.m. on March 14, 2008, along with
Detective Art Delgadillo, the lead detective on the case. Prior to
interviewing defendant, Gonzalez read defendant his Miranda rights.
Gonzalez interviewed defendant again just after midnight on March 15,
2008, in the presence of Delgadillo and ASA Heightross.*fn6
Gonzalez testified that he is fluent in both English and
Spanish, and he often assisted in interpreting between Spanish and
English in the course of the 10 years he had been with the Palatine
police department. Gonzalez testified that he was present during the
interviews of defendant to serve as a witness as well as to serve as
¶ 42 Gonzalez testified that the 10 p.m. interview was conducted mostly by Delgadillo and was conducted entirely in Spanish. Prior to the interview, Delgadillo read defendant his Miranda rights in Spanish from a preprinted form. Gonzalez testified that the preprinted form had a top portion that was in English and a bottom portion in Spanish. Defendant indicated that he understood each right, after which Delgadillo asked him to sign and print his name, which he did, and Delgadillo and Gonzalez signed the form as witnesses.
¶ 43 During the midnight interview, ASA Heightross was present along with Gonzalez and Delgadillo; Heightross did not speak Spanish, so Gonzalez served as an interpreter while Heightross asked questions in English. Gonzalez testified that he read defendant his Miranda rights, again in Spanish. As he read defendant each right, defendant indicated that he understood, then initialed the paper next to what was being interpreted. After Gonzalez had read defendant all of his rights, defendant printed his name on the top portion of the preprinted form, and Gonzalez, Delgadillo, and Heightross signed as witnesses. After defendant's second interview, Heightross prepared a handwritten statement. The statement was placed on the table and Gonzalez translated it from English to Spanish; defendant signed each page after it was translated.
¶ 44 The defense's second witness was defendant, who testified through an interpreter. Defendant testified that he was born in Guatemala and did not speak or understand English. Defendant testified that on March 14, 2008, he was interviewed at the Palatine police department. He testified that he was informed that he had the right to remain silent and that anything that he said could be used against him in a court of law, but was not informed that he had the right to consult an attorney, to have an attorney present during the interrogation, or to have an attorney provided if he could not afford one. Defendant testified that before being questioned by the police officers, he told them that he wished to call his friends so that they could look for an attorney to represent him, and the police officers agreed, but later told him that there was no time for that. Defendant testified that he did not sign any documents concerning his Miranda rights and testified that he was interviewed in English by a woman; he did not recall being interviewed in Spanish. Defendant testified that he could not read or write and was unable to sign even his name.
¶ 45 The trial court denied defendant's motion to suppress.
¶ 47 Defendant's first trial began on April 26, 2010, and ended on April 29, 2010, when the trial court declared a mistrial because of a hung jury.
¶ 48 Defendant's retrial began on August 9, 2010. The State proceeded on two counts of predatory criminal sexual assault, one for contact between defendant's penis and the victim's vagina and the other for contact between defendant's penis and the victim's anus; the remaining counts were nol-prossed.
¶ 49 The State's first witness was the victim, who was eight years old at the time of trial. The victim testified that she spoke both Spanish and English, and mostly spoke Spanish when she was at home. The victim testified that she was currently living with her aunt, but before that, she lived with Elizabeth and Elvia. The ASA asked the victim several questions to test whether the victim knew the difference between the truth and a lie, and the victim answered appropriately. The victim then identified several body parts, such as the nose and mouth, then was shown a picture of an unclothed female child. The victim identified the part of the body used to go to the bathroom as the "[p]rivate part" and identified another part used to go to the bathroom as the "[b]utt," which was located "[o]n the back." The victim testified that both the front private part and the butt "have an inside and an outside part."
¶ 50 The victim was then shown a picture of an unclothed male child. The victim identified the part of the body that a boy uses to go to the bathroom as the "[p]rivate part," but explained that it was different than a girl's private part, and testified that a boy also has a "butt."
¶ 51 The victim testified that when she was five years old, she lived with Elizabeth and Elvia, her aunt. She also lived with Carlos, Elvia's boyfriend, and defendant, Elizabeth's boyfriend. Prior to living with Elvia, she lived in a different apartment with Elizabeth and defendant. When Elizabeth went to work, defendant would stay home and baby-sit the victim; defendant did not have a job. The victim testified that defendant abused her by hitting her and "touching [her] private parts" with his "private part." In response to questions asking where defendant touched her, the victim marked the picture of the unclothed female child on the places she had identified as the "private part" and the "butt." The victim testified that when defendant touched her private part with his private part, it went inside her private part, which she knew because she "feeled it"; the victim testified that "[i]t hurts a lot." She further testified that when defendant touched her butt with his private part, it went inside her butt, which she knew because she "feeled it"; the victim again testified that "[i]t hurts."
¶ 52 The victim testified that she told defendant to stop but he did not. She further testified that both she and defendant were unclothed when defendant touched her; defendant took her clothes off, as well as his own. When defendant touched her private part with his private part, the victim was "laying down" on a bed "on [her] tummy." She could not recall the number of times that defendant had touched her, but testified that it was more than three times; each time, it was in the apartment and the victim was lying on her "tummy" or on her back.
¶ 53 The victim testified that once they moved in with Elvia, she told Elvia about what defendant had done. After she told Elvia, she told her Aunt Maria and another aunt; she told them what had occurred in Spanish. The victim testified that she did not say anything earlier because she was "scared" of defendant. After she told her aunts what had occurred, she was taken to a place to talk to another woman about what had happened. She talked to the woman in Spanish and told her what defendant had done to her.
¶ 54 The victim testified that approximately a year later, she spoke to the same woman again about Elizabeth. She told the woman that Elizabeth had touched her private part with her finger, and showed her on a picture what she meant by "private part." Several years after that, the victim came to a courtroom and was asked about Elizabeth touching her. On that day, Elizabeth was in the courtroom, and it had been a long time since the victim had seen her. When she was asked whether Elizabeth had touched her, the victim had testified that she had not; the victim testified that she had missed Elizabeth then. The victim testified that she had not seen Elizabeth since then and that she still missed her and wanted to see her again.
¶ 55 On cross-examination, the victim testified that she could not recall how long they lived in the apartment, but knew it was through the spring and summer, but not the winter. The victim testified that she and Elizabeth had separate bedrooms. The victim testified that she could not recall the time of day when defendant first touched her, but knew that it was during the spring and not during a school day, so she was home all day. The victim testified that she was in her room and Elizabeth's room when defendant touched her. She was sleeping on a bed when defendant first approached her; the victim testified that she never told the woman that she spoke to that she did not have a bed in her room. The victim testified that she was sleeping in her school clothes, which defendant removed. She woke up when she heard the door open, but defendant did not say anything; the victim testified that she was afraid of defendant. When he came into the room, he turned off a fan, and then climbed "on top of" the victim, which hurt her. He grabbed the victim and carried her to Elizabeth's room, where he placed her on the bed. He took the victim's clothes off and touched her. The victim testified that he hit her in her private part with his private part and ...