{ "id": 511319, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD E. STEWART, Defendant-Appellant", "name_abbreviation": "People v. Stewart", "decision_date": "1999-03-26", "docket_number": "No. 4\u201497\u20140852", "first_page": "844", "last_page": "854", "citations": [ { "type": "official", "cite": "303 Ill. App. 3d 844" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "482 U.S. 730", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219896 ], "weight": 21, "year": 1987, "pin_cites": [ { "page": "736" }, { "page": "641" }, { "page": "2662" }, { "page": "740" }, { "page": "644" }, { "page": "2664" }, { "page": "740-41" }, { "page": "644" }, { "page": "2664-65" }, { "page": "745-46" }, { "page": "647-48" }, { "page": "2667-68" }, { "page": "745" }, { "page": "647" }, { "page": "2667" }, { "page": "747" }, { "page": "648" }, { "page": "2668" } ], "opinion_index": 0, "case_paths": [ "/us/482/0730-01" ] }, { "cite": "633 N.E.2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "46" } ], "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 1295635 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "26-27", "parenthetical": "Cook, J., specially concurring" }, { "page": "23" }, { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0014-01" ] }, { "cite": "643 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "162 Ill. 2d 314", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477550 ], "year": 1994, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0314-01" ] }, { "cite": "633 N.E.2d 685", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "688" } ], "opinion_index": 0 }, { "cite": "158 Ill. 2d 360", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780285 ], "year": 1994, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0360-01" ] }, { "cite": "478 N.E.2d 262", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "106 Ill. 2d 429", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138526 ], "year": 1985, "pin_cites": [ { "page": "438-39" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0429-01" ] }, { "cite": "600 N.E.2d 1169", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1171-72" } ], "opinion_index": 0 }, { "cite": "151 Ill. 2d 37", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291537 ], "year": 1992, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0037-01" ] }, { "cite": "291 U.S. 97", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1498121 ], "weight": 3, "year": 1934, "pin_cites": [ { "page": "108" }, { "page": "679" }, { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/us/291/0097-01" ] }, { "cite": "687 N.E.2d 892", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "903" } ], "opinion_index": 0 }, { "cite": "178 Ill. 2d 215", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385544 ], "year": 1997, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0215-01" ] }, { "cite": "660 N.E.2d 901", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "907" }, { "page": "907-08" }, { "page": "908" } ], "opinion_index": 0 }, { "cite": "169 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909174 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "12" }, { "page": "11-12" }, { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0001-01" ] }, { "cite": "399 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168934 ], "weight": 6, "year": 1970, "pin_cites": [ { "page": "159" }, { "page": "497" }, { "page": "1935" }, { "page": "162" }, { "page": "499" }, { "page": "1937" } ], "opinion_index": 0, "case_paths": [ "/us/399/0149-01" ] }, { "cite": "699 N.E.2d 577", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "585" }, { "page": "586" } ], "opinion_index": 0 }, { "cite": "183 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209980 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "116" }, { "page": "117-18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0103-01" ] } ], "analysis": { "cardinality": 1060, "char_count": 23442, "ocr_confidence": 0.778, "pagerank": { "raw": 1.34774879752843e-07, "percentile": 0.632653486747683 }, "sha256": "8dce746ee4308470c4de570907e582d3a0b880f11a26246a133987f6e2bc9951", "simhash": "1:b0727e81bb6c0ee7", "word_count": 3894 }, "last_updated": "2023-07-14T16:41:17.679955+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD E. STEWART, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE KNECHT\ndelivered the opinion of the court:\nOn July 17, 1997, a Champaign County jury convicted defendant, Richard E. Stewart, of two counts of predatory criminal sexual assault of a child under the age of 13 (720 ILCS 5/12\u201414.1(a)(1) (West 1996)). In August 1997, the court sentenced defendant to two concurrent 18-year prison terms, granted him 169 days\u2019 credit, and applied the truth-in-sentencing provision, ordering him to serve 85% of his prison term (see 730 ILCS 5/3\u20146\u20143(a)(2)(ii) (West 1996)). Defendant appeals, arguing (1) his attorney provided ineffective assistance, (2) the admission of hearsay evidence violated his confrontation and due process rights, and (3) his judgment of sentence should reflect day-for-day credit. We reverse and remand.\nI. BACKGROUND\nIn March 1997, defendant was charged with two counts of predatory criminal sexual assault of a child under the age of 13. 720 ILCS 5/12\u201414.1(a)(1) (West 1996). For approximately IV2 years prior to his arrest, defendant lived with his sister, Christina, and her four children in Urbana, Illinois. The State alleged defendant abused Christina\u2019s 11-year-old daughter, T.N., during this time.\nIn July 1997, prior to defendant\u2019s trial, the court conducted a hearing to consider hearsay testimony pursuant to section 115\u201410 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115\u201410 (West 1996)). At this hearing, T.N. testified during the time defendant lived with her mother he would hug her, kiss her on the neck and cheek, fondle and squeeze her breasts, place his finger in her vagina and move it around, and place his mouth on her vagina. T.N. stated the abuse frequently occurred while family members were in the house. T.N. revealed the abuse to her mother in March 1997. T.N. also told an investigator from the police department and Dr. Kathleen Buetow about the abuse.\nChristina testified defendant began living with her and her children in October 1995. In March 1997, she overheard an argument between T.N. and her brother, D.N. Christina took T.N. aside to discuss sexual matters with her. At this time, T.N. told Christina defendant had sexually molested her. Christina stopped questioning T.N. and contacted the police. On cross-examination, Christina stated she contacted her brother and sister, who came to the house and spoke with T.N. for a few minutes before the police were contacted. Christina also stated she did not hear the substance of T.N.\u2019s argument with TN.\u2019s brother.\nPolice investigator Dan Morgan interviewed T.N. after Christina reported the abuse. Investigator Morgan explained to T.N. why he was called to the house and asked her open-ended questions about the abuse. T.N. told Morgan the last incident occurred two weeks earlier while defendant was helping with her homework. At this time, defendant picked T.N. up and sat her on his lap while he kissed her neck and cheek. He also fondled her breasts, reached his hand in her pants, inserted his finger in her vagina, and attempted to place her hands inside the front of his pants. T.N. told Morgan similar incidents occurred two or three times per week.\nT.N. explained to Morgan one episode in the laundry room when defendant picked her up, placed her on the washing machine, pulled her pants down, and \u201clicked her vagina.\u201d This incident occurred while T.N. was home from school because of illness. On cross-examination, Morgan stated T.N. indicated her mother was home during the laundry room incident and defendant stopped because her brother came home from school. Morgan also stated some of T.N.\u2019s time periods and dates were vague.\nBased on this testimony, the court concluded the time, content, and circumstances surrounding T.N.\u2019s hearsay statements made them reliable. Accordingly, Christina and Investigator Morgan would be permitted to testify at the trial.\nAt the July 1997 trial, T.N. testified to a more detailed account of defendant\u2019s actions. In addition to the facts set forth above, she stated she spent the night at defendant\u2019s apartment before he moved in with her mother. On this night, T.N. slept in defendant\u2019s bed and he slept on the couch. During the night, defendant got into bed with T.N., reached under her pajamas, and inserted his finger into her vagina and moved it around. When T.N. became startled, defendant stated he thought she was someone else.\nT.N. also provided greater detail regarding the laundry room incident. She stated she was taking defendant\u2019s mail to him in the laundry room when he abused her and he stopped because he heard T.N.\u2019s brother come home from school. T.N. did not tell her mother about the abuse because defendant told her he would go back to prison if she told anyone.\nT.N. revealed the abuse after Christina overheard her arguing with D.N. about her involvement with a boy named \u201cMikey.\u201d Christina asked T.N. if she was sexually active. T.N. denied any sexual activity five or six times until Christina stated she would take T.N. to the doctor to determine if she was sexually active. T.N. then asked her brother to leave the room and told Christina about defendant\u2019s abuse.\nChristina testified T.N. had a good relationship with defendant when he first moved into her home. However, T.N. became belligerent with defendant, stating she hated him and wished he would move out, and their relationship deteriorated throughout January and February 1997.\nInvestigator Morgan\u2019s testimony was similar to his testimony during the section 115\u201410 hearing.\nDr. Kathleen Buetow testified on behalf of the State. At the time, Dr. Buetow was a pediatrician with Carle Clinic and a member of the child protection team, a group of professionals organized to evaluate abused or neglected children. Dr. Buetow examined T.N. and found no physical injuries. She stated her findings were consistent with the type of sexual abuse alleged. Dr. Buetow\u2019s description of defendant\u2019s abuse as related to her by T.N. was consistent with T.N.\u2019s testimony.\nDefendant denied sexually abusing T.N. He stated he had a good relationship with T.N. Character witnesses testified defendant was a good uncle and had a good relationship with T.N. The court also informed the jury about defendant\u2019s prior felony conviction; however, the court instructed the jury this conviction only affected defendant\u2019s credibility. The jury found defendant guilty on both counts.\nIn August 1997, the court denied defendant\u2019s posttrial motion for a new trial, which alleged (1) the State failed to reveal Christina threatened T.N. with a trip to the doctor before she disclosed the abuse; (2) the court erred in allowing evidence of his prior conviction; (3) the State\u2019s use of hearsay violated his right to confront the witnesses; and (4) the State failed to prove his guilt beyond a reasonable doubt. Thereafter, the court sentenced defendant. This appeal followed.\nII. ANALYSIS\nA. Right To Be Present\nDefendant asserts his absence from the section 115\u201410 hearing violated his constitutional right to be present. He contends the section 115\u201410 hearing was a critical stage of the trial; thus, his failure to knowingly waive his right to be present requires reversal of his conviction. See People v. Collins, 184 Ill. App. 3d 321, 334-35, 539 N.E.2d 736, 744-45 (1989).\nThe State contends defendant\u2019s failure to raise this issue before the trial court and in his posttrial motion forfeited his right to raise it on appeal. See People v. Pasch, 152 Ill. 2d 133, 168, 604 N.E.2d 294, 307 (1992). Further, the State asserts plain error did not occur because the fairness of defendant\u2019s trial was not undermined by his absence from the section 115\u201410 hearing. See People v. Bean, 137 Ill. 2d 65, 80, 560 N.E.2d 258, 264-65 (1990).\nAt the outset of the section 115\u201410 hearing, the following dialogue took place:\n\u201cTHE COURT: *** Mr. Barnes is here on behalf of the [djefendant. Do we anticipate the [d]efendant\u2019s presence, counsel?\nMR. BARNES: No your Honor. I didn\u2019t ask him to be brought over.\u201d\nHowever, defense counsel may not waive defendant\u2019s right to be present unless evidence shows defendant voluntarily, knowingly, and intelligently waived his right. See Collins, 184 Ill. App. 3d at 335, 539 N.E.2d at 745. Here, the record does not support a finding of valid waiver. In fact, defense counsel\u2019s response implies he did not give defendant a choice to appear at the hearing. Under these circumstances, defendant did not provide an effective waiver. See People v. Mallett, 30 Ill. 2d 136, 142, 195 N.E.2d 687, 690 (1964).\nA defendant is not denied a constitutional right every time he is not present during his trial; rather, his rights are violated when his absence results in a denial of an underlying substantial right, for example, the right to (1) confront the witness, (2) present a defense, or (3) an impartial jury. See Bean, 137 Ill. 2d at 81, 560 N.E.2d at 265. Here, defendant asserts his absence during the section 115\u201410 hearing violated his right to confront the witnesses (U.S. Const., amend. VI; Ill. Const. 1970, art. I, \u00a7 8) and his due process right (U.S. Const., amend. XIV, \u00a7 1). Consequently, we review this case under the plain error doctrine. See People v. Stack, 261 Ill. App. 3d 191, 196, 633 N.E.2d 42, 46 (1994).\n1. Confrontation Right\nThe confrontation clause preserves defendant\u2019s right to cross-examine the witness. Cross-examination is the principal means for testing the veracity of witness testimony and is the \u201cgreatest legal engine ever invented for the discovery of truth.\u201d Kentucky v. Stincer, 482 U.S. 730, 736, 96 L. Ed. 2d 631, 641, 107 S. Ct. 2658, 2662 (1987). Thus, the court\u2019s objective is to strike a balance between the accuracy and integrity of the truth-seeking process versus the strong interest in effective law enforcement. See People v. Bowen, 183 Ill. 2d 103, 116, 699 N.E.2d 577, 585 (1998).\nRather than attempting to characterize a section 115\u201410 hearing as a critical stage, the court considers whether excluding defendant from the section 115\u201410 hearing interferes with his opportunity for effective cross-examination. See Stincer, 482 U.S. at 740, 96 L. Ed. 2d at 644, 107 S. Ct. at 2664. The ability to cross-examine prior to trial is not of \u201ccrucial significance\u201d provided defendant has the opportunity for cross-examination during the trial. See California v. Green, 399 U.S. 149, 159, 26 L. Ed. 2d 489, 497, 90 S. Ct. 1930, 1935 (1970). As long as defendant\u2019s right to cross-examination at trial is secured, his confrontation right is not violated. See People v. Keene, 169 Ill. 2d 1, 12, 660 N.E.2d 901, 907 (1995).\nIn Keene, codefendant Hoover agreed to testify against codefendant Keene as part of a plea bargain. However, prior to testifying, Hoover moved to withdraw his guilty plea. As a result, the State sought, and was allowed, to question Hoover about his testimony outside the jury\u2019s presence to ensure he would testify as promised. Keene was excluded from the voir dire, but defense counsel was present. The supreme court held Keene\u2019s opportunity to cross-examine Hoover at trial was not interfered with; thus, Keene\u2019s confrontation right was not violated. See Keene, 169 Ill. 2d at 11-12, 660 N.E.2d at 907-08.\nHere, defendant\u2019s absence from the section 115\u201410 hearing did not interfere with his right to cross-examine the hearsay witnesses at trial. Christina, Investigator Morgan, and T.N. all appeared and testified during the trial. When \u201cthe declarant is not absent, but is present to testify and to submit to cross-examination, *** the admission of his out-of-court statements does not create a confrontation problem.\u201d Green, 399 U.S. at 162, 26 L. Ed. 2d at 499, 90 S. Ct. at 1937. Defendant\u2019s opportunity to cross-examine these witnesses satisfied his confrontation right. See People v. Thomas, 178 Ill. 2d 215, 239, 687 N.E.2d 892, 903 (1997).\nDefense counsel could have repeated any question heard during the section 115\u201410 hearing. See Stincer, 482 U.S. at 740-41, 96 L. Ed. 2d at 644, 107 S. Ct. at 2664-65. In fact, the section 115\u201410 hearing gave defendant the opportunity to review the witnesses\u2019 testimony prior to trial, thereby providing him with the chance for more effective cross-examination at trial. Thus, defendant\u2019s confrontation right was not violated.\n2. Due Process Right\nDefendant next asserts his absence from the section 115\u201410 hearing violated his due process right. See Stincer, 482 U.S. at 745-46, 96 L. Ed. 2d at 647-48, 107 S. Ct. at 2667-68. He argues the section 115\u201410 hearing bore a substantial relationship to his opportunity to defend himself. Cf. Collins, 184 Ill. App. 3d at 335, 539 N.E.2d at 745. Consequently, his absence from this critical stage affected the fairness of the trial. See Bean, 137 Ill. 2d at 83, 560 N.E.2d at 265.\nDue process requires the defendant be present \u201c \u2018to the extent that a fair and just hearing would be thwarted by his absence.\u2019 \u201d Stincer, 482 U.S. at 745, 96 L. Ed. 2d at 647, 107 S. Ct. at 2667, quoting Snyder v. Massachusetts, 291 U.S. 97, 108, 78 L. Ed. 674, 679, 54 S. Ct. 330, 333 (1934). The right to be present originates in the due process clause and is not an absolute right. \u201cThus, as long as a defendant\u2019s absence from a portion of his trial does not deprive him of due process, there is no violation of [his] *** right of presence ***\u201d Bean, 137 Ill. 2d at 83, 560 N.E.2d at 266.\nDefendant argues the section 115\u201410 hearing involved the admission of substantive evidence; therefore, his presence at the hearing was necessary. See Collins, 184 Ill. App. 3d at 335, 539 N.E.2d at 745. In Collins, the court heard defendant\u2019s motion to suppress evidence, during which defendant was excused from the courtroom. Before he was excused, the court informed defendant no further evidence would be heard. However, the court heard evidence, including defense counsel\u2019s cross-examination of the police officer who investigated defendant, questioned him, and obtained his partial confession. See Collins, 184 Ill. App. 3d at 334-35, 539 N.E.2d at 744-45.\nThe Collins court held the hearing involved important evidence for the State\u2019s case against defendant, thereby involving defendant\u2019s substantial rights. Further, defendant\u2019s waiver of his right to be present was invalid due to the court\u2019s misleading statement. Thus, his absence from the hearing violated his right to be present. See Collins, 184 Ill. App. 3d at 335-36, 539 N.E.2d at 745.\nIn contrast to Collins, the State bore the burden of proof during the section 115\u201410 hearing. See People v. Zwart, 151 Ill. 2d 37, 43, 600 N.E.2d 1169, 1171-72 (1992). Further, unlike the defendant in Collins, defendant was not present when T.N.\u2019s allegations were made to her mother and the police investigator; therefore, the impact his presence may have had on the outcome of the hearing is speculative. Here, the record fails to show what effect, if any, defendant\u2019s presence would have had on the accuracy and integrity of the truth-seeking process. See Stincer, 482 U.S. at 747, 96 L. Ed. 2d at 648, 107 S. Ct. at 2668; Keene, 169 Ill. 2d at 13, 660 N.E.2d at 908.\nBecause of the importance of section 115\u201410 hearings, however, we conclude defendants have a due process right to be present at these hearings. In some child sex abuse cases, hearsay testimony may be the only evidence supporting the victim\u2019s allegations. The outcome of the section 115\u201410 hearing is potentially the most important determination during the case and bears a substantial relationship to defendant\u2019s ability to establish a defense. While we acknowledge defendant\u2019s presence during this hearing may have had no effect on the outcome of this case, the significance of the hearing warranted his presence, unless he voluntarily, knowingly, and intelligently waived this right. See People v. Martine, 106 Ill. 2d 429, 438-39, 478 N.E.2d 262, 266 (1985).\nIn rare circumstances not present in this case, the absence of a defendant at a section 115\u201410 hearing may be permissible. Occasionally, in child sex abuse cases, the trauma suffered by the child-victim is too great for the child to testify in front of the defendant without causing additional harm. However, the intent behind a section 115\u201410 hearing is to test the reliability of a child-victim\u2019s hearsay statements, and the most persuasive evidence may be his or her own testimony. Because defendant\u2019s right to be present arises under the due process clause, the trial court must balance defendant\u2019s role in assisting in his defense against the risk of identifiable and substantial injury to the child. See Stincer, 482 U.S. at 746 n.20, 96 L. Ed. 2d at 648 n.20, 107 S. Ct. at 2668 n.20.\nUnlike defendant\u2019s confrontation right at trial under the Illinois Constitution (see Ill. Const. 1970, art. I, \u00a7 8; People v. Fitzpatrick, 158 Ill. 2d 360, 367, 633 N.E.2d 685, 688 (1994)), defendant\u2019s due process right to be present is not unequivocal during section 115\u201410 hearings. If the State, as the proponent of the hearsay statement\u2019s reliability, establishes by a preponderance of the evidence the trauma to the child-victim outweighs the defendant\u2019s ability to assist counsel, then the defendant may be excused from the courtroom during the child\u2019s testimony without violating the defendant\u2019s due process right.\nHere, the court did not weigh defendant\u2019s right and defendant did not waive his right to be present during the section 115\u201410 hearing. Accordingly, defendant\u2019s absence violated his due process right (U.S. Const., amend. XIV( \u00a7 1), thereby amounting to plain error (134 Ill. 2d R. 615(a)). We conclude the evidence was sufficient to find defendant guilty beyond a reasonable doubt; therefore, defendant faces no risk of double jeopardy on retrial. See People v. Cruz, 162 Ill. 2d 314, 374, 643 N.E.2d 636, 664 (1994).\nBecause we reverse based on a violation of defendant\u2019s due process right, we need not address the argument he received ineffective assistance of counsel. Nevertheless, we address several of defendant\u2019s arguments based on the likelihood they will be raised during the new trial.\nB. Hearsay Evidence\nDefendant contends the admission of T.N.\u2019s hearsay statements violated his right to confront the witness (U.S. Const., amend. VI; Ill. Const. 1970, art. I, \u00a7 8). He asserts section 115\u201410 is not a firmly rooted exception to the hearsay rule; so, admission of T.N.\u2019s out-of-court statements denied him his right to confront the witness. See People v. Peck, 285 Ill. App. 3d 14, 26-27, 674 N.E.2d 440, 449 (1996) (Cook, J., specially concurring), citing Idaho v. Wright, 497 U.S. 805, 816, 111 L. Ed. 2d 638, 652, 110 S. Ct. 3139, 3147 (1990).\nIn Wright, the court held incriminating hearsay statements must bear adequate indicia of reliability to be admitted. Reliability can be demonstrated through a firmly established hearsay exception or by showing particularized guarantees of trustworthiness. See Wright, 497 U.S. at 816, 111 L. Ed. 2d at 653, 110 S. Ct. at 3147. Thereafter, this court held section 115\u201410 incorporates the Wright criteria, thereby allowing courts to admit hearsay statements under section 115 \u2014 10 without violating defendant\u2019s confrontation right. See Peck, 285 Ill. App. 3d at 23, 674 N.E.2d at 447.\nThis court specifically rejected the proposition the confrontation clause permits hearsay testimony only if it (1) falls within a firmly rooted exception or (2) is necessary because the declarant is unavailable to testify. See Peck, 285 Ill. App. 3d at 23, 674 N.E.2d at 447. Rather, so long as section 115\u201410\u2019s safeguards of reliability are satisfied, the hearsay statements are admissible without violating defendant\u2019s confrontation right. See also Bowen, 183 Ill. 2d at 117-18, 699 N.E.2d at 586.\nHere, the court found sufficient indicia of reliability during the section 115\u201410 hearing. Accordingly, defendant\u2019s confrontation right was not violated and T.N.\u2019s hearsay statements were properly admitted.\nC. Truth-In-Sentencing Provision\nDefendant argues the trial court erred in applying the truth-in-sentencing provision to his sentence (see 730 ILCS 5/3\u20146\u20143(a)(2)(ii) (West 1996)). See People v. Pitts, 295 Ill. App. 3d 182, 190, 691 N.E.2d 1174, 1179 (1998). In Pitts, this court found Public Act 89\u2014404 (Pub. Act 89\u2014404, eff. August 20, 1995 (1995 Ill. Laws 4306, 4323-27)), which enacted section 3\u20146\u20143(a)(2)(ii) of the Unified Code of Corrections, violated the single subject rule of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, \u00a7 8(d)). See Pitts, 295 Ill. App. 3d at 190, 691 N.E.2d at 1179. Thus, he asserts the court may not apply section 3\u20146\u20143(a)(2)(ii) to his sentence, if he should be convicted again.\nRecently, the Supreme Court of Illinois also found Public Act 89\u2014404 violated the single subject rule (Ill. Const. 1970, art. IV, \u00a7 8(d)). See People v. Reedy, 186 Ill. 2d 1, 12 (1999). The court further stated Public Act 90\u2014592 (Pub. Act 90\u2014 592, \u00a7 5, eff. June 19, 1998 (1998 Ill. Legis. Serv. 1429, 1430 (West))), which both deleted and recodified the entire truth-in-sentencing legislation, was the only curative legislation enacted by the General Assembly (Reedy, 186 Ill. 2d at 16), thus overruling sub silentio People v. Nicholson, 299 Ill. App. 3d 256, 267-68, 701 N.E.2d 517, 525-26 (1998) (concluding Public Act 89\u2014462, \u00a7 280, eff. May 29, 1996 (1996 Ill. Laws 588, 655-58) was curative legislation). Accordingly, because defendant\u2019s crime was allegedly committed before June 19, 1998, the court may not apply the truth-in-sentencing provision. See Reedy, 186 Ill. 2d at 17.\nIII. CONCLUSION\nFor the reasons stated, we reverse defendant\u2019s conviction and remand for a new trial.\nReversed and remanded.\nMYERSCOUGH, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE KNECHT" }, { "text": "JUSTICE COOK,\nspecially concurring:\nI disagree with the dicta that in some cases the absence of a defendant at a section 115\u201410 hearing may be permissible (303 Ill. App. 3d at 848-49). In my view, the defendant is entitled to be present at a section 115\u201410 hearing to the same extent that he is entitled to be present during the taking of evidence at a trial. In many child sex abuse cases, section 115\u201410 hearsay may be the only evidence supporting the victim\u2019s allegations. At the section 115\u201410 hearing, no one can know with certainty whether the alleged victim will be called or be able to testify at trial. The section 115\u201410 hearing is an important stage of the case against the defendant, .unlike a pretrial hearing where only legal arguments are made. In Stincer, defendant was excluded from a pretrial competency hearing for two child victims of sex abuse, but the court there stressed that the questions asked did not relate to the crime itself, but to general capacity to tell the truth. See W. LaFave & J. Israel, Criminal Procedure \u00a7 24.2, at 1011-12 (2d ed. 1992).\nFinally, I stand by my special concurrence in Peck, that compliance with section 115\u201410 does not automatically satisfy constitutional requirements.", "type": "concurrence", "author": "JUSTICE COOK," } ], "attorneys": [ "Daniel D. Yuhas, John M. McCarthy (argued), Catherine K. Hart, and Dino Hyssen, all of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "John C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Kathy Shepard (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD E. STEWART, Defendant-Appellant.\nFourth District\nNo. 4\u201497\u20140852\nArgued September 22, 1998.\nOpinion filed March 26, 1999.\nCOOK, J., specially concurring.\nDaniel D. Yuhas, John M. McCarthy (argued), Catherine K. Hart, and Dino Hyssen, all of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJohn C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Kathy Shepard (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0844-01", "first_page_order": 862, "last_page_order": 872 }