{ "id": 1083879, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY L. MILES, Defendant-Appellant", "name_abbreviation": "People v. Miles", "decision_date": "2004-08-24", "docket_number": "No. 4\u201402\u20140623", "first_page": "857", "last_page": "871", "citations": [ { "type": "official", "cite": "351 Ill. App. 3d 857" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "631 N.E.2d 779", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "782" } ], "opinion_index": 0 }, { "cite": "259 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2870216 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "349" }, { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0344-01" ] }, { "cite": "84 Cornell L. Rev. 1004", "category": "journals:journal", "reporter": "Cornell L. Rev.", "year": 1999, "pin_cites": [ { "page": "1037-38" } ], "opinion_index": 0 }, { "cite": "631 N.E.2d 902", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "905" }, { "page": "904", "parenthetical": "\"Roberts repeatedly asked S.M.C.[,] '[W]hat did Todd do to you the other day?' \"" }, { "page": "906" } ], "opinion_index": 0 }, { "cite": "259 Ill. App. 3d 466", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2869732 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "471" }, { "page": "470" }, { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0466-01" ] }, { "cite": "62 Wash. L. Rev. 705", "category": "journals:journal", "reporter": "Wash. L. Rev.", "year": 1987, "pin_cites": [ { "page": "711" } ], "opinion_index": 0 }, { "cite": "697 N.E.2d 302", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "308" }, { "page": "308" }, { "page": "308" } ], "opinion_index": 0 }, { "cite": "297 Ill. App. 3d 668", "category": "reporters:state", "reporter": "Ill. 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App. 3d 448", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2960446 ], "year": 1993, "pin_cites": [ { "page": "469-73", "parenthetical": "Cook, J., specially concurring" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/251/0448-01" ] }, { "cite": "780 N.E.2d 807", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "813-16", "parenthetical": "Cook, J., dissenting" } ], "opinion_index": 1 }, { "cite": "335 Ill. App. 3d 786", "category": "reporters:state", "reporter": "Ill. 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HENRY L. MILES, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE APPLETON\ndelivered the opinion of the court:\nIn a bench trial, the trial court found defendant, Henry L. Miles, guilty of one count of predatory criminal sexual assault (720 ILCS 5/12 \u2014 14.1(a)(1) (West 1998)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12 \u2014 16(c)(1)(i) (West 1998)). The latter offense merged into the former, and the court sentenced him to six years\u2019 imprisonment.\nDefendant 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.\nI. BACKGROUND\nA. The Charges\nOn 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 \u2014 14.1(a)(1) (West 1998)) \u2014 penetration of the anus and vagina, respectively, with his finger. Count III charged aggravated criminal sexual abuse (720 ILCS 5/12 \u2014 16(c)(l)(i) (West 1998)) in that he touched C.M. for sexual arousal or gratification.\nB. The Section 115 \u2014 10 Hearing\nOn January 31, 2002, the trial court held a section 115 \u2014 10 hearing, in which the State called two witnesses: C.M.\u2019s mother, Shalores M., and a sheriff\u2019s detective, Leah Boston.\nShalores testified that defendant was a friend of the family and her mother\u2019s \u201cboyfriend.\u201d They called him \u201cMr. Mickey.\u201d In the early evening of November 12, 1999, defendant came to Shalores\u2019s house for a visit and told her he was going to the store. After he left in her mother\u2019s 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 \u201ceverybody [knew],\u201d Shalores forbade her children to drink soda. Shalores noticed C.M. \u201chad a sad look on her face. *** [S]he looked bothered.\u201d\nSoon after defendant left for the evening, \u201cC.M. *** complain[ed] about her bottom hurting.\u201d 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 \u201cgenital area\u201d appeared to be \u201creal red and irritated[-]looking.\u201d Shalores asked her, \u201c[\u2018W]hy are you screaming? Why is your butt hurting like this?\u2019 \u201d C.M. replied \u201cthat Mr. Mickey [had] scratched her.\u201d\nShalores denied asking C.M. \u201cany other questions.\u201d She merely \u201cgot her out of the tub and *** waited for a ride\u201d from her friend, Jo Elle Waters. Waters was \u201ccoming by anyway,\u201d and \u201cwhen she showed up,\u201d Shalores asked her to take her and C.M. to the hospital. En route, Shalores refrained from asking C.M. for more information. \u201c[I]f it were *** a fact that something happened, I didn\u2019t want them to think I [had] coaxed my child,\u201d she testified.\nAt the hospital, Shalores \u201cjust assumed that [her mother, Trudy Hopkins, had been] giving [C.M.] bubble baths *** and maybe bubbles [were] irritating her.\u201d The doctor \u201cagreedt ] and *** gave her cream.\u201d C.M. had suffered from an irritation like this before. Shalores testified, however, that as the doctor was filling out the discharge papers, she \u201ccalled the doctor \u2014 the nurse outside[,] [into the hallway,] and told them to ask [C.M.] why she was hurting.\u201d They asked C.M. that question, and C.M. replied, \u201c \u2018Mr. Mickey scratched me.\u2019 \u201d\nShalores testified a social worker then came on the scene \u201cand talked to [C.M.] as well.\u201d\nOn cross-examination, Shalores admitted it was possible that the sad expression on C.M.\u2019s face when C.M. returned from the store with defendant was an expression \u201cof guilt in that she knew she wasn\u2019t supposed to have soda.\u201d\nDefense counsel tried to elicit from Shalores a more detailed account of what C.M. had told her. Shalores remembered C.M.\u2019s telling her that defendant had \u201cscratched\u201d her in the backseat of \u201cGrandma\u2019s car,\u201d but Shalores did not recall asking C.M. \u201chow it happened\u201d or any other follow-up questions. Defense counsel asked Shalores:\n\u201cQ. 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, *** \u2018Mr. Mickey would not do it[ ]\u2019 ***?\nA. Yeah.\nQ. So, when did [C.M.] tell you that [\u2018]Mr. Mickey would not do it,[\u2019] referring to hurting her butt?\nA. I can\u2019t 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.\nQ. You blocked that statement of hers out?\nA. I blocked a lot of this out.\n* * *\nQ. What was it that prompted that statement from her [that \u2018Mr. Mickey would not do it\u2019]? In other words, what did you say to her before she made that statement?\nA. I don\u2019t remember. I don\u2019t remember.\u201d\nOn redirect examination, the prosecutor asked Shalores:\n\u201cQ. Do you recall being at the hospital and *** someoneFs] asking [C.M.], \u2018Who would do this to you?\u2019 Do you remember anything like that being said?\nA. I can\u2019t remember if the nurse or the doctor asked her that, but, yes, I do remember that.\nQ. Do you remember how she responded, or her initial response\u2014 her first response was?\nA. I can\u2019t remember, [bejcause they\u2019ve asked her that question so many times. I don\u2019t remember.\u201d\nShalores insisted, however, that C.M. \u201cbrought Mr. Mickey\u2019s name up herself. I never brought his name up to her, she brought the name up.\u201d\nBoston testified she interviewed C.M. on November 16, 1999, but neither audiotaped nor videotaped the interview. Boston asked her \u201cif anyone had done anything bad to her,\u201d and C.M. nodded yes. Boston testified as follows:\n\u201cA. *** I asked her if Mr. Mickey had done anything to her. I asked if Mr. Mickey had touched her.\nQ. All right. How did she respond to that?\nA. She said that he touched her butt. Or, at one point in time, she said, [\u00a3H]e scratched my butt.[\u2019] I don\u2019t recall, specifically, right at this time, which time she said that.\u201d\nUsing a doll, Boston asked her \u201cto show us what had happened.\u201d C.M. \u201cturned 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] [\u00a3]he put it in right here. He stuck it in right here, like this, or he put it in like this. [\u2019] \u201d Because C.M. told her she had a dress and pants on, Boston \u201casked her how he could do that over her underwear.\u201d C.M. merely \u201cleaned forward and pointed to the back waist of her clothing.\u201d\nAccording to Boston, Natalia was unable to corroborate C.M.\u2019s story.\nThe trial court found that \u00a3\u00a3[t]he time[,] content[,] and circumstances of the statements, both to Shalores M[.] and Leah Boston, provide[d] sufficient safeguards of reliability.\u201d The court detected no \u201cmotive of bias on the part of the child\u201d and did not consider the questions Boston asked her to be \u201cimproperly suggestive.\u201d\nB. The Trial\nOn April 8, 2002, the State called five-year-old C.M. as its first witness in the bench trial. The prosecutor asked her:\n\u201cQ. [W]hat was the name that you called Grandma\u2019s friend?\nA. Mr. Mickey.\nQ. Mr. Mickey. Okay. And one time did you go somewhere with Mr. Mickey and something happen[ed]?\n[Objection sustained on the ground of compound question.]\nQ. Do you remember ever going for a ride with Mr. Mickey?\nA. No.\nQ. Do you remember sometimes being with Mr. Mickey?\nA. No.\n* * *\nQ. *** [W]hen you rode in the car sometimes, who drove the car?\nA. Mr. Mickey.\nQ. Mr. Mickey. Okay. And one time when you rode in the car and Mr. Mickey was driving, did something happen while you were in the car?\nA. I don\u2019t know.\nQ. What does that mean?\nA. No.\nQ. *** Do you remember taking a ride in the car with Mr. Mickey and somebody else?\nA. Natalia.\n* * *\nQ. *** [W]hen you and Natalia and Mr. Mickey were in Grandma\u2019s car, did something bad happen?\n[DEFENSE COUNSEL]: Objection, leading, Your Honor.\nTHE COURT: Overruled.\nA. I don\u2019t know.\n* * *\nQ. You don\u2019t know. You don\u2019t know[,] or you don\u2019t want to tell me?\nA. I just don\u2019t know.\nQ. You don\u2019t know. Okay. After you took the ride with Mr. Mickey and with Natalia, was there something wrong?\nA. I don\u2019t know.\nQ. You don\u2019t know. Did somebody in that car do something?\nDEFENSE COUNSEL: Objection, Your Honor, leading.\nTHE COURT: Overruled.\nA. I don\u2019t know.\nQ. Did somebody in that car do something to hurt you?\n[DEFENSE COUNSEL]: Same objection.\nTHE COURT: Same ruling.\nA. I don\u2019t know.\u201d\nThe prosecutor asked that question two more times, with different wording, and each time received the same answer. She asked:\n\u201cQ. Did you tell your mom some part of you is hurting?\nA. Yeah.\nTHE COURT: Which part?\nTHE WITNESS: My bottom.\n* * *\nQ. Okay. Did somebody hurt your bottom?\n* * *\nA. Yeah.\nQ. Who was it that hurt your bottom?\nA. I don\u2019t know.\u201d\nAfter asking C.M. three times how that unnamed person had hurt her bottom and receiving three \u201cI don\u2019t knows,\u201d the prosecutor handed C.M. a doll and told her to point to the doll\u2019s \u201cbottom.\u201d C.M. pointed to the vaginal area. The prosecutor asked her:\n\u201cQ. [W]ho made that part hurt?\nA. I don\u2019t know.\nQ. Where were you when that part of you got hurt?\nA. At [M]ommy\u2019s house.\nQ. Mommy\u2019s house. It was \u2014 it hurt when you were at your mommy\u2019s house?\nA. (Whereupon the witness shook her head up and down.)\nQ. And where were you before that part of you got hurt?\nA. In my Grandma\u2019s car.\n* * *\nQ. *** When your bottom got hurt somehow, who else was with you?\nA. Natalia.\nQ. *** Did Natalia hurt you?\nA. No.\nQ. Well, who did hurt you then?\n* * *\nA. I don\u2019t know.\n* * *\nQ. *** [WJho was driving Grandma\u2019s car?\nA. Mr. Mickey.\n* * *\nQ. *** [W]ho was it that did something to hurt your bottom?\nA. I don\u2019t know.\n* * *\nQ. *** Has (your bottom] been hurt lots of times or one time?\nA. A lot.\nQ. A lot. It hurt a lot. Can you tell the Q]udge just one time who it was that ever hurt your bottom?\n* * *\nA. Mr. Mickey.\nQ. It was Mr. Mickey. Okay. And where was it? Where were you when Mr. Mickey hurt your bottom?\nA. I don\u2019t know.\u201d\nThe State called Robert Tarr, the physician who examined C.M. in the emergency room on November 12, 1999. He found a rash in the \u201cvaginal and rectal area diffusely\u201d \u2014 a condition that, without any allegation of improper touching, he would have thought was caused by soap. After he went back into the examination room at the urging of Shalores, he heard C.M. say, after \u201crepeated questions,\u201d that \u201cMr. Mickey [had] touched her on the bottom.\u201d\nA nurse, Lisa Liss, testified that during Tarr\u2019s second examination of C.M., she saw \u201ca redness to the vaginal area, and there was a very, very small open site, I guess you would say, like it was either a breakdown of skin or a laceration or tear. But it was very, very small.\u201d\nThe social worker, Mary Beth Miller, could not recall whether she spoke with C.M.\nNichols-Johnson testified she examined C.M. on November 18, 1999, to determine whether C.M. had been sexually abused. She found two areas of irritation or redness near the introitus, on either side of the hymenal ring. She opined the irritation was more likely caused by a finger than by soap or a urinary tract infection. She asked C.M. if anyone had either touched or hurt her, and C.M. named \u201cMr. Mickey.\u201d Juan M. testified that his sister, Shalores, asked him to speak with C.M. and see if he could get her to tell him anything. He asked Shalores \u201cin reference to what,\u201d but Shalores \u201cwould not say.\u201d The morning of November 13, 2001, he spoke with C.M. privately. He described the conversation as follows:\n\u201cQ. And *** what did you talk to her about?\nA. Nothing really specifically. I asked her what she had done yesterday, and she said they had [ridden] around and visited Herb; and that was pretty much it. And I asked her if anything was wrong, and she told me no. And she \u2014 yeah, she said[,] [\u2018]I don\u2019t think so[\u2019] is what she told me.\u201d\nThe record does not seem to reveal who Herb was.\nHopkins testified she and defendant had resided together since 1997. She recalled that in late 1999, defendant received a call from the Department of Children and Family Services (DCFS) regarding an investigation of alleged child abuse. He made an appointment to talk with the investigators. Hopkins testified:\n\u201cAfter he got off the phone with the people from DCFS, he just shouted[,] [\u2018]Lord, get me out of this one[!\u2019] And then *** I think it was a Saturday night before we went[.] [W]e were [lying] in bed[,] and *** he said, [\u2018Yjou know, baby,[\u2019] he said, [\u2018]I think I really did something to .hurt you.[\u2019] And I asked him what it was[,] and he said[,] [\u20180]h, nothing.[\u2019]\u201d\nThe trial court directed a verdict of acquittal on count I (penetration of the anus).\nDefendant testified he had no recollection of telling Hopkins he had done anything to hurt her. He denied removing C.M.\u2019s clothing or touching her sexually or anywhere near her bottom.\nII. ANALYSIS\nA. Confrontation Clause\nAccording to the rationale of Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539 (1980), quoting Mancusi v. Stubbs, 408 U.S. 204, 216, 33 L. Ed. 2d 293, 303, 92 S. Ct. 2308, 2315 (1972), the confrontation clause of the sixth amendment (U.S. Const., amend. VI) allowed the admission of an unavailable witness\u2019s statement against a criminal defendant if the statement had \u201cadequate \u2018indicia of reliability,\u2019 \u201d i.e., the statement either fell within a \u201cfirmly rooted hearsay exception\u201d or had \u201cparticularized guarantees of trustworthiness.\u201d Defendant argues that because section 115 \u2014 10 creates a new hearsay exception \u2014 one that is not \u201cfirmly rooted\u201d in the common law \u2014 the confrontation clause requires that any hearsay admitted pursuant to the statute possess \u201c \u2018 \u201cparticularized guarantees of trustworthiness\u201d \u2019 \u201d (People v. Williams, 193 Ill. 2d 306, 350, 739 N.E.2d 455, 478 (2000), quoting Idaho v. Wright, 497 U.S. 805, 816, Ill L. Ed. 2d 638, 653, 110 S. Ct. 3139, 3147 (1990), quoting Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539).\nAfter the parties filed their briefs in this case, the Supreme Court issued its decision in Crawford v. Washington, 541 U.S. 36, 60, 158 L. Ed. 2d 177, 198, 124 S. Ct. 1354, 1369 (2004), which rendered the phrases \u201cindicia of reliability\u201d and \u201cparticularized guarantees of trustworthiness\u201d irrelevant to the confrontation clause. Regardless of \u201creliability,\u201d testimonial statements of witnesses absent from a criminal trial are admissible only if (1) the declarant is unavailable and (2) the defendant had an opportunity to cross-examine the declarant at the time of the statement (Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374) \u2014 cross-examination being the \u201c \u2018greatest legal engine ever invented for the discovery of truth\u2019 \u201d (California v. Green, 399 U.S. 149, 158, 26 L. Ed. 2d 489, 497, 90 S. Ct. 1930, 1935 (1970), quoting 5 J. Wigmore, Evidence \u00a7 1367, at 29 (3d ed. 1940)). Because this change in (or return to) constitutional doctrine enhances the truth-finding function of trials, Crawford applies retroactively. See Williams v. United States, 401 U.S. 646, 653, 28 L. Ed. 2d 388, 395, 91 S. Ct. 1148, 1152 (1971).\nIn the present case, C.M. testified at trial, and defendant cross-examined her. \u201c[W]hen the declarant appears for cross-examination at trial, the [cjonfrontation [c]lause places no constraints at all on the use of his prior testimonial statements.\u201d Crawford, 541 U.S. at 60 n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369 n.9, citing Green, 399 U.S. at 162, 26 L. Ed. 2d at 499, 90 S. Ct. at 1937; see also United States v. Owens, 484 U.S. 554, 560, 98 L. Ed. 2d 951, 958-59, 108 S. Ct. 838, 843 (1988); Delaware v. Fensterer, 474 U.S. 15, 21-22, 88 L. Ed. 2d 15, 21, 106 S. Ct. 292, 295-96 (1985) (per curiam)-, People v. Flores, 128 Ill. 2d 66, 88, 538 N.E.2d 481, 489 (1989).\nB.Hearsay\nThe confrontation clause and hearsay rules are designed to protect similar values, but the overlap is not complete. Green, 399 U.S. at 155, 26 L. Ed. 2d at 495, 90 S. Ct. at 1933. A violation of hearsay rules is not necessarily a violation of the confrontation clause or vice versa. Green, 399 U.S. at 155-56, 26 L. Ed. 2d at 495-96, 90 S. Ct. at 1934. For example, testifying to one\u2019s own or someone else\u2019s out-of-court statement can be hearsay, regardless of the declarant\u2019s presence in court (People v. Lawler, 142 Ill. 2d 548, 557, 568 N.E.2d 895, 899 (1991)), but if the defendant has an opportunity to cross-examine the declarant, the hearsay does not violate the confrontation clause (Crawford, 541 U.S. at 58-59, 158 L. Ed. 2d at 197, 124 S. Ct. at 1369).\nAlthough the \u201creliability\u201d test in Roberts and Wright is defunct as far as the confrontation clause is concerned (Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370), it remains a part of the statutory exception to the hearsay rule (725 ILCS 5/115 \u2014 10 (West 1998); People v. Peck, 285 Ill. App. 3d 14, 23, 674 N.E.2d 440, 447 (1996)). The child victim\u2019s hearsay statement is admissible under section 115 \u2014 10(b)(1) only if \u201cthe time, content, and circumstances of the statement provide sufficient safeguards of reliability\u201d (725 ILCS 5/115 \u2014 10(b)(1) (West 1998)), a phrase we have interpreted as \u201cincorporat[ing] the Wright criteria\u201d (Peck, 285 Ill. App. 3d at 23, 674 N.E.2d at 447). The State has the burden of proving reliability. People v. Zwart, 151 Ill. 2d 37, 43, 600 N.E.2d 1169, 1171-72 (1992).\nDefendant contends that the \u201ccircumstances\u201d of C.M.\u2019s statement to Boston and Shalores lack \u201csufficient safeguards of reliability.\u201d Keeping in mind that our standard of review is deferential (Zwart, 151 Ill. 2d at 44, 600 N.E.2d at 1172), we do not see how any reasonable trier of fact could find that the State carried its burden under section 115 \u2014 10. We are mindful of the Supreme Court\u2019s comment that \u201c[r]eliability is an amorphous, if not entirely subjective, concept.\u201d Crawford, 541 U.S. at 63, 158 L. Ed. 2d at 200, 124 S. Ct. at 1371. The concept becomes more definite and more meaningful to the extent that courts invest it with some rigor. In light of Illinois decisions interpreting section 115 \u2014 10, we do not believe one could reasonably find \u201csufficient safeguards of reliability\u201d in the content and circumstances of C.M.\u2019s statement to Shalores or in the circumstances of CM.\u2019s statement to Boston.\nMore than a year before Boston interviewed C.M., we put the State \u201con notice of the risk it takes by not recording interviews of alleged child victims.\u201d People v. Simpkins, 297 Ill. App. 3d 668, 678, 697 N.E.2d 302, 308 (1998). We held that the lack of such a verbatim recording could give cause for skepticism that the interview was free of \u201cadult prompting or manipulation.\u201d Simpkins, 297 Ill. App. 3d at 677, 697 N.E.2d at 308. The State chose not to record C.M.\u2019s interview.\nRecording interviews is important because children, especially younger children, are \u201cparticularly susceptible\u201d to suggestion by adults. Zwart, 151 Ill. 2d at 45, 600 N.E.2d at 1172; see also J. Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and the Influence of Pretrial Interviews, 62 Wash. L. Rev. 705, 711 (1987).\nLeading questions are, by definition, suggestive. A \u201cleading question\u201d is one \u201cthat suggests the answer to the person being interrogated; especially] a question that may be answered by a mere \u2018yes\u2019 or \u2018no.\u2019 \u201d Black\u2019s Law Dictionary 897 (7th ed. 1999). \u201c[A] suggestive manner of questioning by the witness to a hearsay statement (conduit of the statement) is a circumstance negating reliability of the statement.\u201d People v. Ware, 259 Ill. App. 3d 466, 471, 631 N.E.2d 902, 905 (1994). Leading questions can have varying degrees of suggestiveness. T. Lyon, The New Wave in Children\u2019s Suggestibility Research: A Critique, 84 Cornell L. Rev. 1004, 1037-38 (1999). Without a recording of Boston\u2019s interview of C.M., one cannot know whether her leading questions, either in their individual or collective potency, crossed the line into improper suggestion. Boston herself admitted she could not remember many of the questions she asked C.M. Some of the questions that she had written down were troubling in their focus on defendant: \u201c T asked her if Mr. Mickey had done anything to her. I asked if Mr. Mickey had touched her.\u2019 \u201d See Ware, 259 Ill. App. 3d at 470, 631 N.E.2d at 904 (\u201cRoberts repeatedly asked S.M.C.[,] \u2018[W]hat did Todd do to you the other day?\u2019 \u201d).\nMiller spoke with C.M. before Boston, and we have no record whatsoever of Miller\u2019s questions or C.M.\u2019s answers. Without any evidence of the substance of a previous interview, courts normally consider the circumstances of the subsequent interview to be unreliable. See Zwart, 151 Ill. 2d at 44, 600 N.E.2d at 1172; Simpkins, 297 Ill. App. 3d at 677, 697 N.E.2d at 308.\nWe recommend the recording of interviews because to assess the reliability of the circumstances under which the child made the statement, one must know what those circumstances are \u2014 including (as a rule) the questions that led to the statement. Perhaps because the State waited a year and seven months to file a charge, Shalores could not remember the question that elicited C.M.\u2019s statement to her in the bathroom. Shalores had an uncertain memory of the statement itself. Initially, she testified that C.M. had said \u201cMr. Mickey scratched her.\u201d Later, on cross-examination, she admitted that C.M. had said the opposite: that \u201cMr. Mickey wouldn\u2019t do it.\u201d In a section 115 \u2014 10 hearing, the issue is not whether the child actually made the statement; that issue is for trial. Ware, 259 Ill. App. 3d at 472, 631 N.E.2d at 906. As a practical matter, however, one cannot find \u201csufficient safeguards of reliability\u201d in the \u201ccontent\u201d of an alleged hearsay statement (725 ILCS 5/115 \u2014 10(b)(1) (West 1998)) unless one has a reasonably distinct idea of what that content is.\nIf C.M. told Shalores that \u201cMr. Mickey wouldn\u2019t do it,\u201d one would naturally infer C.M. was responding to a suggestion: either a question specifically naming defendant or an outright accusation of him. Shalores, however, could not remember what she said to C.M. that prompted the statement. In fact, Shalores testified she had \u201cblocked a lot of this out.\u201d Only through Shalores could the trial court have learned the circumstances of C.M.\u2019s statement in the bathroom. If Shalores \u201cblocked a lot of [those circumstances] out,\u201d including the question that elicited the statement in the bathroom, we do not see how the court could have reasonably found those circumstances to be reliable. For a court to deem the \u201ccircumstances\u201d of a statement as providing \u201csufficient safeguards of reliability\u201d (725 ILCS 5/115\u2014 10(b)(1) (West 1998)), those circumstances must surely, at a minimum, be available to the court.\nThe remedy for erroneous admission of hearsay is reversal unless the record clearly shows the error was harmless. People v. Bridgewater, 259 Ill. App. 3d 344, 349, 631 N.E.2d 779, 782 (1994). The error \u201cis harmless only if properly admitted evidence is so overwhelming that no fair-minded trier of fact could reasonably have acquitted.\u201d Bridgewater, 259 Ill. App. 3d at 349, 631 N.E.2d at 782.\nWe do not find the properly admitted evidence to be overwhelming. Tarr found no physical evidence of sexual abuse; Nichols-Johnson did. C.M. told Juan nothing was wrong. Defendant denied touching her. Again and again at trial, C.M. testified she did not know who had hurt her bottom. Only after the prosecutor repeatedly and laboriously directed her attention to \u201cMr. Mickey\u201d did C.M. finally catch the hint and say \u201cMr. Mickey.\u201d Such questioning could be considered suggestive. Defendant\u2019s alleged \u201cadmission\u201d to Hopkins was ambiguous.\nIII. CONCLUSION\nFor the foregoing reasons, we reverse the trial court\u2019s judgment and remand this case for a new trial.\nReversed and remanded.", "type": "majority", "author": "JUSTICE APPLETON" }, { "text": "JUSTICE COOK,\nspecially concurring:\nI concur in the decision to reverse and remand. Even assuming that section 115 \u2014 10 has some continuing validity, the statements to Boston and Shalores lack \u201csufficient safeguards of reliability.\u201d 725 ILCS 5/115 \u2014 10(b)(1) (West 1998); see People v. Cookson, 335 Ill. App. 3d 786, 794-98, 780 N.E.2d 807, 813-16 (2002) (Cook, J., dissenting); People v. Barger, 251 Ill. App. 3d 448, 469-73, 624 N.E.2d 405, 418-20 (1993) (Cook, J., specially concurring).\nI disagree, however, that section 115 \u2014 10 has any continuing validity. Crawford was certainly critical of \u201csufficient safeguards of reliability\u201d hearings. Crawford, 541 U.S. at 63, 158 L. Ed. 2d at 200, 124 S. Ct. at 1371 (\u201camorphous,\u201d \u201cunpredictable,\u201d \u201cdemonstrated capacity to admit\u201d statements that should be excluded). We should not try to pick out pieces of section 115 \u2014 10 that might survive Crawford. The legislature should decide whether it wants a new section 115 \u2014 10, one which will be very different from the one it enacted.\nSection 115 \u2014 10 may be summarized as follows. The hearsay statement is substantively admissible whether or not the child testifies. The only restriction is that the State must call the child as a witness, unless the child is \u201cunavailable.\u201d If the child is unavailable, there must be \u201ccorroborative evidence of the act.\u201d In any case, there must be a section 115 \u2014 10 hearing to establish \u201csufficient safeguards of reliability.\u201d 725 ILCS 5/115 \u2014 10(b)(1) (West 1998). Crawford substantially undercuts section 115 \u2014 10. The admission of testimonial hearsay violates the confrontation clause even if the witness is legitimately unavailable, unless there was a prior opportunity for cross-examination. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The idea that \u201csufficient safeguards of reliability\u201d are of some help is rejected. Crawford, 541 U.S. at 62, 158 L. Ed. 2d at 199, 124 S. Ct. at 1371. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the constitution actually prescribes: confrontation. Crawford, 541 U.S. at 69, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Certainly the statements to the sheriffs detective and to Dr. Nichols-Johnson were testimonial hearsay, and their admission was prejudicial to defendant.\nCrawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197 n.9, 124 S. Ct. at 1369 n.9, went on to hold that when the declarant appears for cross-examination at trial, the confrontation clause places \u201cno constraints at all\u201d on the use of his prior testimonial statements. \u201cThe [c]lause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.\u201d Crawford, 541 U.S. at 60 n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369 n.9. C.M., who basically answered \u201cI don\u2019t know\u201d to every question asked her, did not appear for cross-examination in this case. Placing a witness on the stand who is unable to understand what happened, cannot remember what happened, cannot understand the questions asked, or is unable to answer them does not afford an opportunity for cross-examination.\nChildren\u2019s hearsay cases are unique. In many such cases the effect of section 115 \u2014 10 was to get the supposed testimony of an incompetent child before the trial court, often through the testimony of an interested witness who was given free rein to interpret what the child had said or done. Under section 115 \u2014 10, the child usually could not be cross-examined. In Crawford, in contrast, there were no concerns whether the statement had actually been made and there would have been no problem cross-examining the wife at trial and allowing her to defend or explain the statement.\nDid Crawford mean what it said, that the declarant must appear for cross-examination to defend or explain the hearsay statement? Is it sufficient that a declarant who is unable to understand or answer questions is simply placed in the witness chair? The issue was touched on in Green, where a co-accused\u2019s testimony at preliminary hearing was admitted substantively, despite the fact that when called at trial he was evasive and uncooperative, claiming a lapse of memory. The testimony was admitted, however, because defense counsel had been afforded (and exercised) a full opportunity to cross-examine at the preliminary hearing. Green, 399 U.S. at 162, 26 L. Ed. 2d at 499, 90 S. Ct. at 1937. Green is no support for dispensing with cross-examination here.\nThe majority justifies its decision to admit C.M.\u2019s statements, despite her inability to testify, by citing some unusual cases, Owens (where the victim at trial could not remember the attack but could remember identifying the defendant to the police) and Fensterer (where an expert witness at trial could not remember some of the details of his expert opinion). Crawford, of course, did not cite either one of these cases. I disagree that the Crawford requirement is only illusory. There is a difference between a lack of memory and an inability to testify. A witness\u2019s concession that he has no memory of an event is often the very result of effective cross-examination. Flores, 128 Ill. 2d at 90, 538 N.E.2d at 490, quoting Owens, 484 U.S. at 561-62, 98 L. Ed. 2d at 959, 108 S. Ct. at 844. The same cannot be said of an inability to testify.\nI have no quarrel with the proposition that the hearsay statement can be admitted so long as the declarant testifies, even though the declarant denies making the statement. It is true that sometimes the probative value of the hearsay statement will greatly outweigh any statement made on cross-examination. See Crawford, 541 U.S. at 60 n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369 n.9 (discussing statements made by a coconspirator during the course of the conspiracy). Nevertheless, when the declarant is subjected to cross-examination and is present to defend or explain the statement, the constitutional requirement is satisfied. That did not happen here.", "type": "concurrence", "author": "JUSTICE COOK," }, { "text": "JUSTICE McCULLOUGH,\ndissenting:\nI respectfully dissent. The trial court\u2019s finding of guilt beyond a reasonable doubt and the six-year sentence of imprisonment should be affirmed.\nAs stated by the majority, when a declarant is subject to cross-examination at trial, the confrontation clause places no restraints on the use of prior testimonial statements. Defendant\u2019s objection that C.M.\u2019s statement to Boston and Shalores lacks safeguards of reliability should not be the basis for reversing the trial court\u2019s judgment.\nThis was a bench trial. The trial court made it clear that defendant would have the opportunity at trial to argue \u201cthe reliability of the statements [and] the weight to be given to those statements at the time of hearing\u201d at trial.\nThe trial court made detailed findings concerning the testimony and arguments of counsel. The findings do not refer to Shalores\u2019s testimony, and in reference to the statements of Boston, the court indicated that testimony was of little help.\nThe trial court found the testimony of Nurse Liss to be persuasive. The court stated:\n\u201cThe testimony in this case necessarily starts with the testimony of [C.M.]. It is the opinion of the [c]ourt that in the context of her age and the amount of time that has passed since the offense occurred, the manner in which she testified and identified Mr. Miles was credible. If that was the only testimony that I had heard, that would not have been sufficient to convict Mr. Miles beyond a reasonable doubt. However, I am persuaded beyond a reasonable doubt that Mr. Miles did commit the offense charged in [c]ount II and the offense charged in [c]ount III. And I am persuaded beyond a reasonable doubt.\nThere is credible testimony that Mr. Miles had the opportunity to be with this child on November 12th, 1999. There is credible testimony that when she \u2014 when the child was returned to her home, her demeanor was different; that that evening she began to complain of an injury to what she characterized as her [\u2018]bottom[\u2019]; that she was, in fact, in a [sic] pain. That pain was exacerbated by a bath that was given to her that night.\nI did not find Dr. Tarr\u2019s testimony particularly persuasive. I don\u2019t, quite frankly, think that he recalls what happened that night.\nI was, however, very persuaded by Nurse Liss\u2019s testimony in several regards. First, she clearly did remember that incident that night. As an experienced emergency room nurse, she is sensitive to the problems that are created by coaching of children. Her observation was that [C.M.] was not coached. She heard [C.M.] identify the person known to her as a Mr. Mickey as the person who hurt her bottom. At that time, the [c]ourt finds that there was no motive to warrant the conclusion that the child was coached into making that \u2014 those statements to Nurse Liss.\nParenthetically, I understand that those statements were repeated later to Leah Boston. Again, if it was only the statements to Leah Boston, I would not be persuaded because of the method of examination that was conducted by Ms. Boston. However, the method \u2014 it was not Ms. Boston who elicited the comments that I find to be most persuasive. It was Nurse Liss who did that.\nThose conclusions are further corroborated by Dr. Victoria Nichols-Johnson\u2019s testimony. Based upon her examination on November 18th of 1999 which at that period of time found excoriation within the hymenal ring, and she, to any satisfaction, discounted other causes for that excoriation, her observation of excoriation is consistent with Nurse Liss\u2019s observation that she, in fact, on November, late hours of November 12th, early hours of November 13th, in the course of the second examination of [C.M.], observed a redness to the vaginal area where she saw a small open site, either a laceration or a tear.\nThe [c]ourt is further persuaded by Mr. Miles\u2019 statements to Trudy Hopkins, which the court concludes were statements of a recognition of a guilty conscious [sic]. The [c]ourt believes those statements were made. The [c]ourt disbelieves Mr. Miles\u2019 statement that he \u2014 actually, all he said was that he doesn\u2019t remember having made those statements. The [c]ourt does believe that those statements were made, and the [c]ourt does believe that those were evidence of a guilty conscious [sic].\u201d\nThe testimony of Boston and Shalores did little to help the trial court in its job as fact finder. At the most, any asserted error as set forth by the majority was harmless. This is especially true when put in context with the court\u2019s findings.\nThe trial court\u2019s judgment should be affirmed.", "type": "dissent", "author": "JUSTICE McCULLOUGH," } ], "attorneys": [ "Daniel D. Yuhas and Gary R. Peterson (argued), both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "John E Schmidt, State\u2019s Attorney; of Springfield (Norbert J. Goetten, Robert J. Biderman, and Charles F. Mansfield (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. HENRY L. MILES, Defendant-Appellant.\nFourth District\nNo. 4\u201402\u20140623\nArgued May 11, 2004.\nOpinion filed August 24, 2004.\nDaniel D. Yuhas and Gary R. Peterson (argued), both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJohn E Schmidt, State\u2019s Attorney; of Springfield (Norbert J. Goetten, Robert J. Biderman, and Charles F. Mansfield (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0857-01", "first_page_order": 875, "last_page_order": 889 }