{ "id": 5457769, "name": "In re ROLANDIS G., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Rolandis G., Respondent-Appellant)", "name_abbreviation": "People v. Rolandis G.", "decision_date": "2004-10-14", "docket_number": "No. 2-03-0019", "first_page": "776", "last_page": "784", "citations": [ { "type": "official", "cite": "352 Ill. App. 3d 776" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "76 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2982988 ], "year": 1979, "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0289-01" ] }, { "cite": "139 Ill. App. 3d 232", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3568396 ], "year": 1985, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0232-01" ] }, { "cite": "185 Ill. App. 3d 286", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2645905 ], "year": 1989, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0286-01" ] }, { "cite": "249 Ill. App. 3d 750", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5410783 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "760-61" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/249/0750-01" ] }, { "cite": "205 Ill. App. 3d 567", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2569177 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "583" }, { "page": "583" }, { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/0567-01" ] }, { "cite": "193 Ill. 2d 306", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963678 ], "year": 2000, "pin_cites": [ { "page": "342-43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0306-01" ] }, { "cite": "351 Ill. App. 3d 976", "category": "reporters:state", "reporter": "Ill. 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Rolandis G., Respondent-Appellant)." ], "opinions": [ { "text": "JUSTICE GEOMETER\ndelivered the opinion of the court:\nRespondent, Rolandis G., was adjudicated a delinquent juvenile after the trial court found that he committed aggravated criminal sexual assault (720 ILCS 5/12 \u2014 14(b)(i) (West 2002)). Respondent appeals, contending that the trial court erred by admitting, pursuant to section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 \u2014 10 (West 2002)), out-of-court statements the seven-year-old victim made to his mother, a police detective, and a child abuse investigator. Respondent contends that (1) the court erred in finding that the victim was \u201cavailable to testify\u201d where he answered a few preliminary questions but refused to talk about the alleged offense; (2) the State failed to introduce evidence to corroborate the out-of-court statements; and (3) under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), section 115\u201410 violates the confrontation clause of the United States Constitution (U.S. const., amend. VI) to the extent that it permits introduction of a \u201ctestimonial\u201d out-of-court statement where the accused did not have an opportunity to cross-examine the declarant. We agree with respondent\u2019s third argument and hold that the victim\u2019s statements to the officer and the child abuse investigator were inadmissible under Crawford. However, we hold that the victim\u2019s statements to his mother were not testimonial and that the State introduced sufficient corroborating evidence to make them admissible even though the victim was unavailable to testify. Accordingly, we reverse the delinquency adjudication and remand the cause for a new hearing.\nBefore the adjudicatory hearing, the State moved to admit, pursuant to section 115 \u2014 10, three out-of-court statements by the victim. The trial court stated that it would not hold a separate hearing to decide if the statements were reliable, but would consider that issue during the trial.\nThe State\u2019s first witness was the alleged victim, VJ. VJ. testified that he was seven years old, lived with his mother and two siblings in Rockford, attended school, and sometimes played outside with his neighborhood friends. He indicated that he knew respondent but did not respond when asked how he knew respondent or whether he played with him during the summer of 2002. He refused to answer any more questions.\nVJ.\u2019s mother, Jacqueline M., testified that respondent used to live in her neighborhood and often visited her home. Respondent was with VJ. on June 25, 2002, the date of the alleged assault. On that day, VJ. left home at about 11 a.m. to play with friends. He returned about an hour later with respondent. Respondent left after VJ. told him he was going to stay home. Jacqueline thought it was unusual for VJ. to stay in the house on a summer day.\nAfter respondent left, VJ. went to the bathroom, where he was \u201cspitting in the sink\u201d and rinsing his mouth with water. Jacqueline thought this was unusual, so she asked VJ. whether he was thirsty. He responded that he was not, but that his throat was hot. VJ. then left the bathroom, walked around the house for awhile, then returned to the bathroom and again tried to rinse out his mouth. Jacqueline continued questioning VJ. about his unusual behavior, but he said only that his mouth was \u201chot.\u201d In response to further questioning, he said that he was not going back outside. Finally, about a minute later, VJ. said that respondent made him \u201csuck his dick\u201d in the woods near their home. VJ. said that respondent threatened him with a stick but never hit him with it. Jacqueline called the police.\nOfficer Robert Cure testified that he responded to Jacqueline\u2019s call and spoke to VJ. According to Cure, VJ. told him that respondent made him perform fellatio near some bushes outside his home. He said that respondent carried a stick, that VJ. \u201cchoked on [respondent\u2019s] dick,\u201d that some type of yellow fluid came out, and that he immediately went home to wash his mouth out.\nOne week after the incident, Jackie Weber from the Carrie Lynn Center, a child advocacy center, interviewed VJ. Detective Paul Swan-berg watched the interview through a two-way mirror. Swanberg testified that VJ. told Weber that respondent had threatened him with a stick into performing fellatio while they were in the woods and that a \u201clittle pee\u201d entered VJ.\u2019s mouth. According to Swanberg, VJ. told Weber that respondent made him perform fellatio twice, that respondent made VJ. \u201csuck his nuts,\u201d and that respondent touched VJ.\u2019s penis and buttocks. VJ. also told Weber that he had previously engaged in similar conduct with a friend named Junior.\nAfter a short recess, VJ. again refused to testify about the incident. The State rested its case. The parties then argued whether VJ.\u2019s out-of-court statements to Jacqueline, Cure, and Weber were admissible. Respondent argued that section 115 \u2014 10 requires that, for statements to be admissible, either the declarant must be unavailable to testify or the State must introduce corroborating evidence. Respondent contended that VJ. was unavailable because he did not testify about the alleged abuse. The State argued that VJ. was available because he took the witness stand and gave some testimony. The court agreed with the State and, after considering other factors affecting their reliability, ruled that all of VJ.\u2019s out-of-court statements were admissible. Respondent testified and denied sexually assaulting VJ.\nThe court found that respondent had committed aggravated criminal sexual assault, declared him a delinquent minor, and sentenced him to five years\u2019 probation. Respondent timely appeals.\nRespondent contends that the trial court erred in finding the victim was available to testify where he gave some basic background information but did not talk about the alleged sexual assault. He further argues that, because the victim was unavailable, the State had to introduce evidence corroborating the out-of-court statements but did not do so. In a supplemental brief, respondent argues that under Crawford, \u201ctestimonial\u201d out-of-court statements by an unavailable declarant may not be admitted in a criminal trial unless the declarant was subject to cross-examination when he gave the statements. Respondent argues that section 115 \u2014 10 is unconstitutional to the extent that it allows such statements to be admitted. Because this argument is potentially dispositive, we discuss it first.\nSection 115 \u2014 10 provides that in a prosecution for a physical or sexual act committed against a child less than 13 years old, testimony about an out-of-court statement made by the victim concerning the offense is admissible if:\n\u201c(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and\n(2) The child *** either:\n(A) testifies at the proceeding; or\n(B) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement[.]\u201d 725 ILCS 5/115 \u2014 10(b) (West 2002).\nThe sixth amendment provides that \u201c[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.\u201d U.S. Const., amend. VI. In Crawford, the Court held that the confrontation clause contemplates nothing less than an opportunity for cross-examination. Accordingly, \u201ctestimonial\u201d hearsay is inadmissible unless the declarant is shown to be unavailable and the accused had a prior opportunity for cross-examination. Crawford, 541 U.S. at 52, 68, 158 L. Ed. 2d at 193, 203, 124 S. Ct. at 1364, 1374. In so holding, the Court abrogated the holding in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), that an unavailable witness\u2019s statement may be admitted as long as it bears adequate indicia of reliability. Crawford, 541 U.S. at 62, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370.\nThe Court did not provide an all-inclusive definition of \u201ctestimonial,\u201d but stated that \u201c [statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.\u201d Crawford, 541 U.S. at 52, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364. Later, the Court stated as follows:\n\u201cWe leave for another day any effort to spell out a comprehensive definition of \u2018testimonial.\u2019 Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.\u201d Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.\nThe Court also did not define \u201cinterrogation.\u201d The statement at issue was taken from the defendant\u2019s wife at a time when she was a suspect in the case as well. Thus, it could be argued that \u201cinterrogation\u201d refers only to formal questioning of a suspect in custody. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). However, Crawford made clear that it used \u201cthe term \u2018interrogation\u2019 in its colloquial, rather than any technical legal, sense.\u201d Crawford, 541 U.S. at 54 n.4, 158 L. Ed. 2d at 194 n.4, 124 S. Ct. at 1365 n.4. The common definition of \u201cinterrogate\u201d is \u201cto question formally and systematically.\u201d Merriam-Webster\u2019s Collegiate Dictionary 611 (10th ed. 2001).\nThe First District recently applied Crawford in a case with nearly identical facts. In In re T.T., 351 Ill. App. 3d 976 (2004), the nine-year-old sexual abuse victim testified about some background information, but refused to answer specific questions about the abuse. The trial court declared her unavailable. The court admitted, pursuant to section 115 \u2014 10, the victim\u2019s statements to a police officer and a Department of Children and Family Services (DCFS) investigator.\nOn appeal, the court affirmed the trial court\u2019s ruling that the witness was unavailable (T.T., 351 Ill. App. 3d at 986), but held that, under Crawford, the majority of the victim\u2019s out-of-court statements should not have been admitted (T.T., 351 Ill. App. 3d at 990). On the latter issue, the court noted that although Crawford did not define \u201ctestimonial,\u201d it held that the term applied \u201c \u2018at a minimum to *** police interrogations.\u2019 \u201d T.T., 351 Ill. App. 3d at 987, quoting Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Thus, the witness\u2019s statement knowingly given in response to structured police questioning in Crawford was testimonial under any conceivable definition. T.T., 351 Ill. App. 3d at 989, citing Crawford, 541 U.S. at 53 n.4, 158 L. Ed. 2d at 194 n.4, 124 S. Ct. at 1365 n.4. In light of these definitions, the T.T. court concluded that the victim\u2019s accusatory statements to the officer naming the respondent as the perpetrator qualified as testimonial. T.T., 351 Ill. App. 3d at 989.\nThe court also held that the victim\u2019s statements to a DCFS investigator were testimonial. The investigator interviewed the victim, who accused the respondent of abusing her. The court recognized that child abuse has both criminal and \u201csocial welfare\u201d implications, so that DCFS and the State\u2019s Attorney\u2019s office may share involvement in a given case. T.T., 351 Ill. App. 3d at 990. The court held that in the context of the confrontation clause, \u201cwhere the focus is on whether the declarant is bearing witness against a criminal defendant when making a formal statement to a government officer with an eye toward prosecution,\u201d the victim\u2019s statements are testimonial. T.T., 351 Ill. App. 3d at 991.\nWe agree with T.T.\u2019s analysis of the confrontation clause issues. Accordingly, we are constrained to hold that VJ.\u2019s statements to Officer Cure were testimonial. They were the result of formal and systematic questioning by Cure, who was investigating a report of a sexual assault. Similarly, the statements to Weber, a child advocacy worker, were testimonial. They also came in response to formal questioning, with a police officer watching through a two-way mirror. Needless to say, respondent did not have the opportunity to cross-examine the declarant when he gave these statements. Accordingly, under Crawford, they should not have been admitted. To the extent section 115 \u2014 10 permits the introduction of such statements, it is unconstitutional. We note that section 115 \u2014 10 tracks closely the \u201cindicia of reliability\u201d language from Ohio v. Roberts that Crawford repudiated.\nThe State contends that VJ.\u2019s statements to Cure and Weber were not testimonial under Crawford. The State cites the Court\u2019s reference to the historical definition of \u201ctestimony\u201d as \u201c \u2018[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.\u2019 \u201d Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364, quoting 1 N. Webster, An American Dictionary of the English Language (1828). The State also cites the Court\u2019s statement that testimonial statements are those \u201c \u2018that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.\u2019 \u201d Crawford, 541 U.S. at 52, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364, quoting Brief for National Association of Criminal Defense Lawyers as Amici Curiae 3. Noting the victim\u2019s young age, the State argues that these definitions \u201cimpl[y] a thought process and level of intent that is not consistent with the statements of very young children.\u201d We disagree.\nAs the State acknowledges, Crawford concludes its discussion of the definition of \u201ctestimonial\u201d by stating that \u201c[wjhatever else the term covers, it applies at a minimum to *** police interrogations.\u201d Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. It is apparent that the Court\u2019s further attempts at defining the term are meant to expand the definition of what is a testimonial statement, not to limit or qualify the specific examples given. The phrasing of the statement the State quotes, referring to \u201ccircumstances that would lead an objective witness reasonably to believe\u201d that the statement would later be used at a trial, show that the Court\u2019s focus was on the objective circumstances surrounding the statement, not on the declarant\u2019s subjective understanding.\nMoreover, the focus of the opinion is on a defendant\u2019s right to confront the witnesses against him. Accordingly, a defendant\u2019s confrontation right should not depend on whether the maker of an out-of-court statement subjectively understood that the statement might be used at a later trial. A definition of \u201ctestimonial\u201d that turned solely on the subjective knowledge or intent of the declarant would be both unfair and unworkable. Given that the declarant must be unavailable for the confrontation clause issue to come into play, how would the speaker\u2019s subjective understanding be determined? Indeed, the State does not point to any specific facts to show what VJ. understood about the purpose of the interviews. The State merely speculates about the \u201cthought process\u201d of young children generally. The objective circumstances surrounding VJ.\u2019s statements to Cure and Weber show that they were testimonial.\nThis does not end our inquiry, however. Although the victim\u2019s statements to Cure and Weber should have been excluded, his statements to his mother were not testimonial. These statements were more in the nature of a \u201ccasual remark to an acquaintance\u201d that the Court implied would not be testimonial. Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364. Jacqueline merely noticed that her son was behaving strangely and attempted to ascertain what was wrong. There is no indication that she suspected he had been the victim of a crime and that she was attempting to elicit evidence for a future prosecution.\nRespondent concedes that the victim\u2019s statements to his mother were not testimonial. He nonetheless maintains that they should have been excluded under section 115 \u2014 10 because the declarant was unavailable and the State did not present corroborating evidence. A decision to admit evidence under section 115 \u2014 10 will not be reversed unless the trial court abused its discretion. People v. Williams, 193 Ill. 2d 306, 342-43 (2000).\nWe agree with respondent that the declarant was unavailable, even though he gave some preliminary testimony. In People v. Coleman, 205 Ill. App. 3d 567, 583 (1990), the court held that a child witness became unavailable for purposes of section 115 \u2014 10 when she testified that the defendant had given her a \u201cbad touch\u201d but then she \u201cfroze up\u201d and refused to discuss details of the incident. The court stated, \u201cOnce a child witness is unable to proceed with his or her testimony, whether that point occurred prior to taking the stand or subsequently, he or she is properly considered unavailable.\u201d Coleman, 205 Ill. App. 3d at 583. A similar situation occurred in People v. Embry, 249 Ill. App. 3d 750 (1993), where a young victim took the stand and answered some preliminary questions before he froze up. The court implicitly found that the young witness was unavailable, but found that the State had introduced sufficient corroborating evidence. Embry, 249 Ill. App. 3d at 760-61.\nWe agree with these cases. The obvious purpose of the distinction between an available and an unavailable witness is that in the former case the defendant is able to cross-examine the witness, which is sufficient to test the reliability of the statements. In the latter case, the defendant has no chance to cross-examine, so the State must introduce evidence to corroborate the statements in order to enhance their reliability. From the standpoint of the defendant\u2019s ability to cross-examine the witness, it makes no difference whether he becomes \u201cunavailable\u201d before or after he takes the witness stand. See Coleman, 205 Ill. App. 3d at 583. Therefore, VJ. should have been found to be unavailable after he was unable to continue his testimony.\nAlthough VJ. was unavailable, his out-of-court statements to his mother were still admissible if the State introduced corroborating evidence. 725 ILCS 5/115 \u2014 10(b) (West 2002). We agree with the State that it did so here.\nAs respondent concedes, to corroborate means only \u201c \u2018to add weight or credibility to a thing by additional and confirming facts or evidence\u2019 \u201d (People v. Alba, 185 Ill. App. 3d 286, 290 (1989), quoting In re Custody of Brunken, 139 Ill. App. 3d 232, 239 (1985)). Thus, corroborating evidence need not prove the commission of the crime beyond a reasonable doubt or make it overwhelmingly probable; it need only \u201cadd weight or credibility\u201d to the out-of-court statements. Here, Jacqueline\u2019s testimony corroborated her son\u2019s account of the incident.\nInitially, Jacqueline corroborated the fact that VJ. was with respondent on the day in question. (Respondent\u2019s testimony confirmed as much.) Further, Jacqueline testified that immediately after parting company with respondent, VJ. behaved strangely. He did not want to go back outside on a summer day, which was unusual. He tried several times to rinse out his mouth and was evasive when asked to explain this conduct. Thus, Jacqueline\u2019s testimony about her own observations corroborated V.J.\u2019s account that respondent forced him to perform fellatio.\nRespondent\u2019s argument that other possible explanations exist for Jacqueline\u2019s observations is beside the point. The question is whether the evidence tends to corroborate VJ.\u2019s statements. Respondent cites no authority for the premise that the corroborating evidence must be inconsistent with any other explanation.\nWe find that the victim\u2019s statements to his mother were properly admitted under section 115 \u2014 10 and do not raise any confrontation clause issues. Moreover, the properly admitted evidence was sufficient to prove beyond a reasonable doubt that respondent committed the offense. See People v. Taylor, 76 Ill. 2d 289, 309 (1979). Therefore, we reverse the delinquency adjudication and remand the cause to the circuit court of Winnebago County for a new hearing.\nReversed and remanded.\nO\u2019MALLEY, EJ., and CALLUM, J., concur.\nOf course, a declarant\u2019s subjective understanding might be relevant in some cases, such as where the circumstances surrounding the statement are ambiguous. A statement made during an informal conversation with a police officer might be such a case. However, the State does not suggest that this case presents such a situation.", "type": "majority", "author": "JUSTICE GEOMETER" } ], "attorneys": [ "Michael J. Pelletier and Elizabeth A. Botti, both of State Appellate Defender\u2019s Office, of CMcago, for appellant.", "Paul A. Logli, State\u2019s Attorney, of Rockford (Martin E Moltz and Mary Beth Burns, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Steven J. Biagi, of Rockford, for the People." ], "corrections": "", "head_matter": "In re ROLANDIS G., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Rolandis G., Respondent-Appellant).\nSecond District\nNo. 2\u201403\u20140019\nOpinion filed October 14, 2004.\nMichael J. Pelletier and Elizabeth A. Botti, both of State Appellate Defender\u2019s Office, of CMcago, for appellant.\nPaul A. Logli, State\u2019s Attorney, of Rockford (Martin E Moltz and Mary Beth Burns, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Steven J. Biagi, of Rockford, for the People." }, "file_name": "0776-01", "first_page_order": 794, "last_page_order": 802 }