People v. Johnson
Annotate this Case
Fourth Division
April 9, 1998
No. 1-97-0950
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
BILLY L. JOHNSON, ) HONORABLE
) MARY MAXWELL THOMAS,
Defendant-Appellant. ) JUDGE PRESIDING.
)
JUSTICE WOLFSON delivered the opinion of the court:
The rule against hearsay evidence has been a fixed principle
of Anglo-American jurisprudence since the late 1600's, when Lord
Coke, in his Third Institute, denounced "the strange conceit that
one may be an accuser by hearsay." See J. Strong, McCormick On
Evidence, 244 at 425 (4th ed. 1992).
The Sixth Amendment to the United States Constitution,
various State and Federal evidence codes, and common law court
decisions reflect a strong preference that the accuser in a
criminal case be present in open court, under oath, subject to
cross-examination.
There are exceptions to the rule against hearsay, most of
them firmly rooted in evidence law and therefore thought to be
trustworthy enough to excuse the need for personal appearance,
oath, and cross-examination. This appeal concerns an exception
created by the General Assembly in cases where the defendant is
accused of physically or sexually assaulting a child under the
age of 13.
We are called on to define the parameters and application of
section 115-10 of the Code of Criminal Procedure (725 ILCS
5/115-10 (West 1996)). We do so. In the process, we find the
unauthorized admission of hearsay evidence concerning uncharged
conduct requires reversal and remandment of the defendant's
conviction for aggravated criminal sexual assault.
FACTS
Because this case turns on who said what to whom, we set out
the testimony in some detail.
On November 15, 1995, Billy L. Johnson (Johnson) was charged
by indictment with two counts of aggravated criminal sexual
assault, six counts of criminal sexual assault, and three counts
of aggravated criminal sexual abuse, based on allegations made by
C.D., Johnson's 12 year-old stepdaughter.
On December 4, 1996, Johnson's bench trial began. At a
previous hearing, a judge determined C.D. was unavailable to
testify and her out-of-court statements would be admissible under
section 115-10 of the Code.
At trial, the evidence against Johnson was presented through
the testimony of Chicago police youth officer Stanley Richards.
Richards testified he met C.D. at the 18th District police
station on October 20, 1995. Officers Walsh and McMurdo, who
brought C.D. to the station, were present during Richards'
interview with her. C.D. told Richards she had run away from
home because Johnson had been sexually abusing her since she
began living with him in April 1995. Johnson, she said, would
force her to allow him to pull down her panties and lick her
vagina. Recently, while in Ohio for a family funeral, Johnson
came to the bedroom where C.D. was staying, licked her vagina,
and then attempted to have sexual intercourse with her. She
forced him away by biting him on the arm and chest and scratching
him.
After talking with C.D., Richards interviewed Johnson.
Richards informed Johnson of his constitutional rights and then
told him about C.D.'s allegations. Johnson agreed to waive his
rights and speak to Richards.
Johnson admitted to Richards that he had been having sexual
contact with C.D. since she began living with him in April 1995.
He said whenever C.D. wanted her freedom, or to leave the house,
the price she had to pay was to submit to him. He "got down on
all fours like a dog and licked her pussy." When he was a child,
he explained, he had been forced to perform these acts on his
Aunt Bertha.
When asked whether he remembered specific dates when he had
sexual contact with C.D., Johnson told Richards he remembered
having oral sex with C.D. sometime between September 1 and
September 15, 1995. Johnson also admitted that he "grinded on"
C.D. when he was with C.D. in Ohio for a funeral in October 1995.
Because of Johnson's oral admissions, Richards notified
felony review. Assistant State's Attorney (ASA) Guinn came to
the station later that evening to interview Johnson. In
Richards' presence, Johnson repeated his admissions to ASA Guinn.
Again, the admissions were not reduced to writing.
As further corroboration of C.D.'s statements, Richards
testified he observed bite marks and scratches on Johnson's left
arm and chest area. Richards took photographs of these marks and
the photos were submitted as evidence at trial.
After the State presented its evidence, Johnson moved for an
acquittal. The court granted the motion as to seven of the 11
counts because the evidence supporting these charges referred to
conduct which took place in Ohio, outside the jurisdiction of the
court. The court dismissed counts two, six, seven, eight, nine,
10, and 11. The court denied the motion as to counts one, three,
four, and five.
The first witness called by the defense was Corleatha
Thompson. She testified she had known Johnson for five years.
In September and October 1995, Johnson and C.D. lived with
Thompson and her family at 3809 South King Drive.
Because C.D. did not want to go to school, Thompson
testified, Johnson fought with C.D. nearly every school day.
Sometimes the fights between C.D. and Johnson became physical
altercations. Thompson said she witnessed one such incident when
C.D. attempted to leave the house. Johnson grabbed C.D., they
struggled, and C.D. bit Johnson on the chest. Other times
Thompson saw C.D. scratch Johnson on his back and arms during
altercations. In the period of time C.D. lived in Thompson's
home, C.D. ran away at least twice.
Johnson testified in his own defense. He said he filed a
missing persons report on October 20, 1995, because his 12-year-
old daughter, C.D., had neither called nor returned home the
previous day. Johnson said C.D., who came to live with him in
April 1995, had a history of running away from home. Johnson
also said he had difficulty disciplining C.D. Sometimes, when he
attempted to restrain C.D. from leaving the house, she would bite
and scratch him.
After the missing persons report was filed, Johnson
testified, he looked for C.D. at an apartment building on North
Burling. Johnson found C.D. on the third floor of this building,
hiding behind some friends. C.D. accompanied Johnson and the
building security guard to the lobby and the police were called.
Two officers arrived. C.D. spoke privately with one of the
police officers in the security office in the building. When the
officer finished speaking to C.D., he told Johnson allegations of
sexual abuse had been made against him. One officer then took
C.D. to the hospital, while the other officer took Johnson to the
18th District police station.
At the station, Johnson said, he first spoke with an
unidentified assistant State's Attorney. Johnson admitted he
freely chose to speak with this State's Attorney, telling him of
the disciplinary problems he was having with C.D. Johnson said
he denied the allegations of sexual abuse made by C.D.
Johnson said he was taken to the "bull pen" after he
finished speaking to the assistant State's Attorney. Johnson
made some vague allegations about being threatened and insulted
by officers while in the "bull pen," but said he was not
questioned further until 6 or 7 p.m. At that time Officer
Richards came to the "bull pen" and asked him if he had any bite
marks. He said he did, showed the marks to the officer, and the
officer took pictures of the marks.
Johnson admitted C.D. was the cause of the bites and
scratches, but denied they occurred because he was abusing C.D.
He said the bites and scratches occurred during disciplinary
altercations. Johnson admitted, too, he had taken C.D. to Ohio,
but denied that he abused her there.
Johnson testified he told the officer and State's Attorney
C.D. was lying, trying to save herself from "going to juvenile."
Johnson said he remarked, "Why is it that you people find it
easier to believe a lie than the truth? What do you think, I am
a dog that I would get down on all fours and lick my own
daughter?"
In rebuttal, the State presented the testimony of Assistant
State's Attorney Guinn. He said he was assigned to the Johnson
case on October 20, 1995. He arrived at District 18 Police
Station at about 8 p.m. At the station ASA Guinn spoke with
several officers and C.D., upon her return from the hospital.
Then he spoke to Johnson.
ASA Guinn said Johnson told him C.D. had always had an
"unnatural love" for him. Johnson told him C.D., even as a young
child, used to "rub up against him." When C.D. was seven years
old Johnson kicked her out of his house because of her "unnatural
love" for him.
ASA Guinn also said Johnson told him when C.D. began living
with him again in April 1995, she began exhibiting her "unnatural
love" again. Johnson spoke to his grandmother about this and she
warned him that "incest ran in the family." A few weeks later,
one night when Johnson came home late, C.D. came to him and told
him she would "do anything to get her freedom." Johnson then
rubbed his penis against her vagina, but stopped because "it
didn't feel like a grown woman's."
Johnson told ASA Guinn of another incident when C.D. agreed
to do anything for her freedom. This time, Johnson told ASA
Guinn, he got down on his knees, like a dog, and licked C.D.'s
vagina. ASA Guinn testified Johnson began to cry after telling
him this and then refused to speak anymore.
After hearing all of the evidence, the court found Johnson
guilty on count one of the indictment. Johnson was convicted of
one count of aggravated criminal sexual assault and sentenced to
six-and-one-half years imprisonment.
Now, on appeal, Johnson raises the following issues: (1)
whether C.D.'s out-of-court statements were properly admitted
under section 115-10 of the Code, (2) whether the section 115-10
hearing held to determine the reliability of C.D.'s statements
encompassed the statements admitted at trial, and (3) whether
C.D.'s statements regarding uncharged conduct in Ohio were
properly admitted at trial.
DECISION
(1) Section 115-10 and child's age at trial
First, the provisions of section 115-10 relevant to this case.
Section 115-10 of the Code of Criminal Procedure, entitled
"Certain hearsay exceptions," states, in relevant part:
"(a) In a prosecution for a physical or sexual act
perpetrated upon or against a child under the age of
13, *** the following evidence shall be admitted as an
exception to the hearsay rule:
(1) testimony by such child *** of an out of
court statement made by such child *** that
he or she complained of such act to another;
and
(2) testimony of an out of court statement
made by such child *** describing any
complaint of such act or matter or detail
pertaining to any act which is an element of
an offense which is the subject of a
prosecution for a sexual or physical act
perpetrated upon or against a child *** .
(b) Such testimony shall only be admitted if:
(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
(2) The child *** either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is
corroborative evidence of the act which is
the subject of the statement."
C.D. did not testify. A court determined she was unavailable
and that decision is not challenged on appeal. Her accusations
against Johnson were presented to the trial court through Officer
Richards, under paragraphs (a)(2) and (b)(2)(B) of section
115-10. C.D. was under the age of 13 at the time of the alleged
sexual abuse and when she talked to Richards at the police
station.
Our Supreme Court has held child outcry statements
are admissible under section 115-10(a)(2) only if the victim was
under the age of 13 when the physical or sexual act occurred and
when the outcry statement was made. People v. Holloway, 177 Ill. 2d 1, 682 N.E.2d 59 (1997). Here, the defendant, relying on
Holloway, asks us to find an additional age requirement in the
statute -- that the child victim must be under the age of 13 at
the time the hearsay statements are admitted at trial.
The State contends the issue has been waived. The defendant
did not make that specific objection at trial, nor did he raise
it in his post-trial motion.
We note that the rule of waiver, or, more accurately,
procedural default, limits parties, not courts, and reviewing
courts may address the issue where justice requires. People v.
Hoskins, 101 Ill. 2d 209, 219, 461 N.E.2d 941 (1984). We choose
to address the defendant's contention because C.D.'s hearsay
statements were indispensable to the State's case.
Holloway did not address the issue raised by Johnson. In
this appeal Johnson seizes on the court's statement that the
legislature was concerned about "the ability of the victim to
understand and articulate what happened during the incident and
the reluctance many victims have relating the details of the
incident at trial." Holloway, 177 Ill. 2d at 9. The importance
of allowing the outcry hearsay, said the court, "***is dictated
by the victim's ability to adequately testify to the alleged
incident." Holloway, 177 Ill. 2d at 10.
Johnson contends, given the Supreme Court's statements in
Holloway, section 115-10 should be read to mean the phrase
"The child" in subsection (b)(2) of the statute is defined by the
phrase "a child under the age of 13" in subsection (a). The
conclusion Johnson reaches is that the child must be under the
age of 13 when her statements are introduced at trial and C.D.
was not.
We do not share Johnson's view of the Supreme Court's
meaning in Holloway or of the General Assembly's intent in
passing the statute. The statutory ambiguity found by the court
in Holloway related to the issue of the child's age at the time
the outcry statement was made, not the child's age at trial.
While the court referred to difficulties young children may have
in testifying to details of an assault, the statement had to do
with the legislative determination that the need for a specially-
created hearsay exception in child assault cases does not
outweigh traditional notions of confrontation when the declarant
is 13 or more at the time the outcry is made.
We see no ambiguity in the statute concerning the age of the
child victim at the time of trial. The fact that C.D. was 13 at
the time of trial does not effect the reliability of her outcry
statements one way or the other. Nothing in the statute
indicates a legislative intent to add the restriction urged on us
by Johnson. When there is no ambiguity in the statute, we look
no further than its plain words. See Nottage v. Jeka, 172 Ill. 2d 386, 392, 667 N.E.2d 91 (1996).
We have gone further, anyway. We have examined transcripts
of the legislative hearings held in regard to the enactment of
section 115-10 in 1995 (see 89th Ill. Gen. Assem., House Bill
160, 1995 Sess.) and its predecessor (see 82d Gen. Assem.,
Senate Bill 1077, 1982 Sess.), and we find nothing to indicate
the legislative bodies ever considered the child's age at time of
trial.
The reading urged by Johnson would add nothing to the
reliability of the hearsay, and, in fact, would invite
grave mischief. In cases where the child victim is approaching
13, delay of trial, inadvertent or not, justified or not, would
defeat admissibility. The State, on the other hand, would race
to the courthouse. An offender could benefit by fleeing the
jurisdiction before arrest, returning when the child reaches 13.
Flight, then, would trump the statute, which, understandably,
contains no provision for dealing with delay of trial.
While our view of the statute applies to subsections (a)(1),
when the child testifies at trial, and (a)(2), when the child
does not testify, the defendant's argument falls by its own
weight in this case, where the child did not testify. We cannot
see why the age of a non-testifying child at time of trial would
have any relevance to the admissibility of the child's hearsay.
One of the cases the Holloway court relied on was People
v. E.Z., 262 Ill. App 3d 29, 633 N.E.2d 1022 (1994). In that
case the court reversed the defendant's conviction because the
trial judge allowed the child victim and the child's mother to
testify to outcry statements the child made when she was more
than 13.
The case was remanded for a new trial, the court observing that
other outcry statements made when the child was under 13 could be
admitted if found reliable under the provisions of section
115-10. Since the child would have been more than 13 at the time
of a second trial, the court was inferring, without holding, that
the child's age at time of trial made no difference.
To sum, we find no principled reason to hold that the victim's
age at the time of trial has anything to do with admissibility of
outcry hearsay under the provisions of section 115-10.
(2) C.D.'s statements and the section 115-10 reliability
hearing
Johnson contends his Sixth Amendment right of confrontation
was violated because the trial court never determined the
reliability of the hearsay admitted at trial -- C.D.'s statements
to Officer Richards at the 18th District police station. He asks
us to apply a de novo standard of review to his contention.
The State first responds the defendant never made that
objection at trial, nor did he raise it in his post-trial motion.
The State's claim of waiver has merit, because the objections
raised for the first time in this appeal are the kind that should
be brought to the trial judge's attention for timely
consideration. However, because application of the statute
implicates serious constitutional protections, we decline to find
a procedural default and we will decide the issue. See
People v. Hobley, 159 Ill. 2d 272, 310, 637 N.E.2d 992 (1994).
There are two sets of hearsay statements in this case. The
first took place at the apartment building on North Burling
Street at about 2 p.m. on October 20, 1995. C.D. had run away
from home. Johnson was looking for her. He called the police to
report his daughter missing. When Johnson tried to find her, she
hid behind some friends. Reluctantly, at the urging of her
friends, C.D. informed Officer McMurdo of the sexual abuse by
Johnson she had been enduring for the past several months.
The second statement by C.D., to Officers McMurdo and
Richards, took place about four hours later, at the 18th District
police station. During those four hours, C.D. had been taken to
the hospital, examined, and released. There is no testimony
concerning anything that might have been said to her during those
four hours.
The two statements were almost identical. There is no
evidence of manipulation or intervention by any adult. Nor is
there any indication C.D. suffered from a faulty memory. Once
she began speaking, she showed no reluctance. Her statement was
specific, not vague or faltering. She made no prior or
subsequent inconsistent statements. She was old enough to
understand and relate the events she described.
A problem is created because C.D.'s statement to McMurdo at
the North Burling Street building was the subject of the section
115-10 reliability hearing, while C.D.'s statement to McMurdo and
Richards at the police station was the hearsay introduced at
trial. McMurdo did not testify at the trial. The judge who
presided at the section 115-10 hearing was not the trial judge.
The abuse of discretion standard is used to review
admissibility of outcry hearsay under section 115-10. People v.
Zwart, 151 Ill. 2d 37, 44, 600 N.E.2d 1169 (1992). We use that
standard. Here, the hearing judge examined the circumstances
surrounding C.D.'s statement to McMurdo at North Burling Street,
concluding the State carried its burden of proving that the
"time, content, and circumstances" of C.D.'s statement provided
sufficient safeguards of reliability to satisfy the statute.
Although this statutory hearsay exception is not firmly rooted in
the law, the statute and the Sixth Amendment will be satisfied
when the totality of circumstances surrounding the making of the
statement provides a particularized guarantee of trustworthiness.
Idaho v. Wright, 497 U.S. 805, 820-21, 111 L. Ed. 2d 638, 655-56,
110 S. Ct. 3139, 3149-50 (1990); People v. Zwart, 151 Ill. 2d at
43.
After reviewing the record in this case, we cannot say the
hearing court abused its discretion when it found C.D.'s
statement to McMurdo at North Burling Street satisfied the
statute.
That, of course, does not answer the question raised by the
defendant. Was it reversible error to qualify one statement
under section 115-10 and use another statement at trial? We do
not think it was. The statements were substantially the same,
within hours of each other, without any intervening circumstances
that would taint the second statement. Reliability was
unchanged. In fact, it was enhanced by similarity.
While a technical error may have been committed, we cannot
see how, in this bench trial, it caused any prejudice to the
defendant. See People v. Burnett, 239 Ill. App. 3d 582, 607 N.E.2d 317 (1993); People v.Roy, 201 Ill. App. 3d 166, 558 N.E.2d 1208 (1990). In People v. Mitchell, 155 Ill. 2d 344, 614 N.E.2d 1213 (1993), relied on by the defendant for his claim of
reversible error, there never was a hearing on the reliability of
the outcry hearsay. We see no abuse of discretion in this case.
(3) Hearsay concerning uncharged conduct
This final issue concerns the admission of C.D.'s
statements to Richards about Johnson's conduct in Ohio, during
October 1995. She told Richards the defendant licked her vagina
and then attempted to have sexual intercourse with her. She said
she forced him away by biting him on the arm and chest and by
scratching him.
A photograph of the bite and scratch marks was introduced
at trial. Johnson and one of his witnesses testified C.D. bit
and scratched him when he tried to stop her from leaving the
house. While Richards testified the defendant told him he
"grinded on" C.D. when they were in Ohio, the officer does not
quote the defendant as having said anything about bite and
scratch marks being caused by a sexual attack. Neither does ASA
Guinn. The only connection between a sexual attack in Ohio and
the bite and scratch marks is contained in C.D.'s statements to
Richards at the 18th District.
The State concedes Johnson could not be and was not charged
with the Ohio conduct. It contends, however, the Ohio sexual
attack evidence was properly admitted as corroborative evidence
of C.D.'s actions and her credibility.
The defendant does not dispute the well-established
principle that evidence of a defendant's prior sexual activity
with the same child is admissible to prove a course of conduct
and to corroborate the victim's testimony. People v. Jahn, 246
Ill. App. 3d 689, 705, 615 N.E.2d 1270 (1993). He does dispute
the way in which the other crimes evidence was admitted --
through section 115-10(a)(2).
Here, again, defense counsel at trial did not make the
specific hearsay objection now being raised on appeal. But his
hearsay objection to all of Richards' testimony had been
overruled, and when Richards testified to C.D.'s statement about
events in Ohio, defense counsel made a timely objection and
motion to strike, saying: "It goes beyond the scope of
jurisdiction. She's trying to testify to something that didn't
even happen in Cook County."
We believe the objection was close enough to raise the
issue. Even if it weren't, the interests at stake in this close
case justify our consideration of the issue under the plain error
rule. People v. Mitchell, 155 Ill. 2d 344, 614 N.E.2d 1213
(1993); People v. E.Z., 262 Ill. App. 3d 29, 33, 633 N.E.2d 1022
(1994).
C.D.'s statements to Richards were introduced for their
truth. They are hearsay. They would have no relevance if
offered for any purpose other than their truth. The State
treated them as truthful accusations at trial and the trial judge
considered them for their truth. See People v. E.Z., 262 Ill.
App. 3d at 34. It is too late for the State to say, as it did
during oral argument, that the evidence had a non-hearsay
purpose.
The question is whether section 115-10(a)(2) permits
admission of hearsay concerning uncharged conduct when the
declarant does not testify. We conclude it does not.
Section 115-10(a)(2) provides that testimony about the
child's out of court statement must describe a complaint of an
"act or matter or detail pertaining to any act which is an
element of an offense which is the subject of a prosecution for a
sexual or physical act perpetrated upon or against a child***."
(Emphasis added.) 725 ILCS 5/115-10(a)(2) (1996).
Clearly, events in Ohio were not part of the elements of
the offenses charged in Illinois. The prosecutor said so when
she offered the testimony:
"Your Honor, this is not an allegation that we have
charged within this document. It's only offered to
show the corroboration for what actually did happen
within this jurisdiction."
With that understanding, the trial judge admitted the
testimony over objection.
Two appellate decisions support our conclusion that the
hearsay evidence concerning uncharged conduct was not authorized
by section 115-10(a)(2). No other hearsay exception is proposed
by the State; none could apply.
In People v. Kinnett, 287 Ill. App 3d 709, 679 N.E.2d 481
(1997), the court affirmed a trial judge's pretrial ruling
excluding a child's section 115-10 hearsay concerning the
defendant's uncharged sexual conduct. There, the uncharged
conduct evidence was deemed relevant, but was barred by the
hearsay rule. The court held section 115-10 did not extend to
conduct occurring at times and places not contained in the
charging document. In the instant case, the Ohio conduct related
by C.D. occurred in October. The charged conduct occurred during
the first two weeks of September, in Chicago.
Kinnett relied on People v. Anderson, 225 Ill. App. 3d 636,
587 N.E.2d 1050 (1992). There, the court held hearsay evidence
of uncharged sexual conduct should not have been admitted at the
defendant's sexual abuse trial:
"While section 115-10 creates an exception to the
hearsay rule, it does not abrogate the rule nor remove
its effect other than in the area of the exception.
The plain language of the statute limits the exception
to complaints of, or details about, sexual acts which
are the subject of a prosecution." Anderson, 225 Ill.
App. 3d at 650-51.
Erroneous admission of the hearsay was harmless error in
Anderson because the child victim testified to the uncharged
events and was available for cross-examination.
We agree with the reasoning of Kinnett and Anderson. Those
cases, and ours, are distinguishable from People v. Rushing, 192
Ill. App. 3d 444, 548 N.E.2d 788 (1989)(hearsay testimony that
defendant threatened to kill victim's family if she told of
sexual assault was admissible where spoken contemporaneously with
the sexual acts); People v. Edwards, 224 Ill. App. 3d 1017, 586 N.E.2d 1326 (1992)(evidence of other forms of penetration
occurring at same time as charged conduct was mere surplusage);
and People v. Schmitt, 204 Ill. App. 3d 820, 562 N.E.2d 377
(1990)(objection to uncharged conduct statements waived, no
plain error to admit evidence of uncharged conduct that may have
taken place at same time and place as charged conduct).
We believe section 115-10(a)(2), which by legislative fiat
creates a previously non-existent hearsay exception, must be
strictly construed where the defendant has no opportunity to
confront and cross-examine his accuser. See People v.
Bridgewater, 259 Ill. App. 3d 344, 349, 631 N.E.2d 779 (1994)("In
light of the principles surrounding the admission of a statement
as an exception to the hearsay rule, section 115-10 of the Code
should be narrowly construed.").
We believe the legislature understood the inherent danger
to cherished principles of confrontation when unexamined hearsay
is allowed in a criminal trial. Confining the outcry hearsay to
acts which are an element of the offense charged was a considered
judgment, created from a perceived necessity in a narrow class of
cases. If the legislature intended any broader application of
the hearsay exception, beyond the elements of the offense
charged, it could easily have said so. Other hearsay exceptions
in the Code do not contain similar limitations. See 725 ILCS
5/115-10.1 and 5/115-10.2. We have no desire to broaden the
terms of the statute by judicial fiat, lest the exception swallow
a rule that has served so well for so long.
Finally, all else failing, the State urges us to find
admission of the hearsay about the Ohio events was harmless
error. We do not believe it was.
The trial record tells us C.D.'s statement to Richards about
biting and scratching Johnson during an Ohio sexual attack played
a crucial role in this trial. Neither Richards nor Guinn
testified the defendant admitted receiving the scratch and bite
marks in the process of "grinding on" C.D. in Ohio. On the other
hand, Johnson and his witness, Corleatha Thompson, testified C.D.
bit and scratched Johnson when he tried to stop her from running
away. Without C.D.'s hearsay, the defense testimony concerning
bites and scratches would be uncontradicted.
The trial judge rejected the defense version of how the
bites and scratches were received. Referring to C.D.'s hearsay
account of the Ohio assault, the judge said:
"This is corroborative of [C.D.'s] testimony as well as
the testimony of the officers as to what the defendant
said."
Since C.D.'s outcry hearsay and Richards' and Guinn's
accounts of Johnson's oral statements were just about the State's
entire case, we cannot see how the erroneous admission of the
uncharged conduct hearsay could be characterized as harmless.
Given the testimony in this bench trial, we cannot say "the
properly admitted evidence was so overwhelming, without the
erroneously admitted hearsay statements, that no fair-minded
trier of fact could reasonably have acquitted the defendant."
People v. Bridgewater, 259 Ill. App. 3d at 349. Admission and
use of C.D.'s hearsay concerning uncharged conduct was reversible
error.
We are not making a finding as to Johnson's guilt or
innocence. Retrial of Johnson, without the inadmissible
uncharged conduct hearsay, would not constitute double jeopardy.
CONCLUSION
Because inadmissible hearsay evidence of uncharged conduct was
admitted and relied on by the trial judge, we reverse the
defendant's conviction and remand this cause for a new trial.
REVERSED AND REMANDED.
CERDA, P.J. and McNAMARA, J., concur.
April 9, 1998
No. 1-97-0950
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
BILLY L. JOHNSON, ) HONORABLE
) MARY MAXWELL THOMAS,
Defendant-Appellant. ) JUDGE PRESIDING.
)
JUSTICE WOLFSON delivered the opinion of the court:
The rule against hearsay evidence has been a fixed principle
of Anglo-American jurisprudence since the late 1600's, when Lord
Coke, in his Third Institute, denounced "the strange conceit that
one may be an accuser by hearsay." See J. Strong, McCormick On
Evidence, 244 at 425 (4th ed. 1992).
The Sixth Amendment to the United States Constitution,
various State and Federal evidence codes, and common law court
decisions reflect a strong preference that the accuser in a
criminal case be present in open court, under oath, subject to
cross-examination.
There are exceptions to the rule against hearsay, most of
them firmly rooted in evidence law and therefore thought to be
trustworthy enough to excuse the need for personal appearance,
oath, and cross-examination. This appeal concerns an exception
created by the General Assembly in cases where the defendant is
accused of physically or sexually assaulting a child under the
age of 13.
We are called on to define the parameters and application of
section 115-10 of the Code of Criminal Procedure (725 ILCS
5/115-10 (West 1996)). We do so. In the process, we find the
unauthorized admission of hearsay evidence concerning uncharged
conduct requires reversal and remandment of the defendant's
conviction for aggravated criminal sexual assault.
FACTS
Because this case turns on who said what to whom, we set out
the testimony in some detail.
On November 15, 1995, Billy L. Johnson (Johnson) was charged
by indictment with two counts of aggravated criminal sexual
assault, six counts of criminal sexual assault, and three counts
of aggravated criminal sexual abuse, based on allegations made by
C.D., Johnson's 12 year-old stepdaughter.
On December 4, 1996, Johnson's bench trial began. At a
previous hearing, a judge determined C.D. was unavailable to
testify and her out-of-court statements would be admissible under
section 115-10 of the Code.
At trial, the evidence against Johnson was presented through
the testimony of Chicago police youth officer Stanley Richards.
Richards testified he met C.D. at the 18th District police
station on October 20, 1995. Officers Walsh and McMurdo, who
brought C.D. to the station, were present during Richards'
interview with her. C.D. told Richards she had run away from
home because Johnson had been sexually abusing her since she
began living with him in April 1995. Johnson, she said, would
force her to allow him to pull down her panties and lick her
vagina. Recently, while in Ohio for a family funeral, Johnson
came to the bedroom where C.D. was staying, licked her vagina,
and then attempted to have sexual intercourse with her. She
forced him away by biting him on the arm and chest and scratching
him.
After talking with C.D., Richards interviewed Johnson.
Richards informed Johnson of his constitutional rights and then
told him about C.D.'s allegations. Johnson agreed to waive his
rights and speak to Richards.
Johnson admitted to Richards that he had been having sexual
contact with C.D. since she began living with him in April 1995.
He said whenever C.D. wanted her freedom, or to leave the house,
the price she had to pay was to submit to him. He "got down on
all fours like a dog and licked her pussy." When he was a child,
he explained, he had been forced to perform these acts on his
Aunt Bertha.
When asked whether he remembered specific dates when he had
sexual contact with C.D., Johnson told Richards he remembered
having oral sex with C.D. sometime between September 1 and
September 15, 1995. Johnson also admitted that he "grinded on"
C.D. when he was with C.D. in Ohio for a funeral in October 1995.
Because of Johnson's oral admissions, Richards notified
felony review. Assistant State's Attorney (ASA) Guinn came to
the station later that evening to interview Johnson. In
Richards' presence, Johnson repeated his admissions to ASA Guinn.
Again, the admissions were not reduced to writing.
As further corroboration of C.D.'s statements, Richards
testified he observed bite marks and scratches on Johnson's left
arm and chest area. Richards took photographs of these marks and
the photos were submitted as evidence at trial.
After the State presented its evidence, Johnson moved for an
acquittal. The court granted the motion as to seven of the 11
counts because the evidence supporting these charges referred to
conduct which took place in Ohio, outside the jurisdiction of the
court. The court dismissed counts two, six, seven, eight, nine,
10, and 11. The court denied the motion as to counts one, three,
four, and five.
The first witness called by the defense was Corleatha
Thompson. She testified she had known Johnson for five years.
In September and October 1995, Johnson and C.D. lived with
Thompson and her family at 3809 South King Drive.
Because C.D. did not want to go to school, Thompson
testified, Johnson fought with C.D. nearly every school day.
Sometimes the fights between C.D. and Johnson became physical
altercations. Thompson said she witnessed one such incident when
C.D. attempted to leave the house. Johnson grabbed C.D., they
struggled, and C.D. bit Johnson on the chest. Other times
Thompson saw C.D. scratch Johnson on his back and arms during
altercations. In the period of time C.D. lived in Thompson's
home, C.D. ran away at least twice.
Johnson testified in his own defense. He said he filed a
missing persons report on October 20, 1995, because his 12-year-
old daughter, C.D., had neither called nor returned home the
previous day. Johnson said C.D., who came to live with him in
April 1995, had a history of running away from home. Johnson
also said he had difficulty disciplining C.D. Sometimes, when he
attempted to restrain C.D. from leaving the house, she would bite
and scratch him.
After the missing persons report was filed, Johnson
testified, he looked for C.D. at an apartment building on North
Burling. Johnson found C.D. on the third floor of this building,
hiding behind some friends. C.D. accompanied Johnson and the
building security guard to the lobby and the police were called.
Two officers arrived. C.D. spoke privately with one of the
police officers in the security office in the building. When the
officer finished speaking to C.D., he told Johnson allegations of
sexual abuse had been made against him. One officer then took
C.D. to the hospital, while the other officer took Johnson to the
18th District police station.
At the station, Johnson said, he first spoke with an
unidentified assistant State's Attorney. Johnson admitted he
freely chose to speak with this State's Attorney, telling him of
the disciplinary problems he was having with C.D. Johnson said
he denied the allegations of sexual abuse made by C.D.
Johnson said he was taken to the "bull pen" after he
finished speaking to the assistant State's Attorney. Johnson
made some vague allegations about being threatened and insulted
by officers while in the "bull pen," but said he was not
questioned further until 6 or 7 p.m. At that time Officer
Richards came to the "bull pen" and asked him if he had any bite
marks. He said he did, showed the marks to the officer, and the
officer took pictures of the marks.
Johnson admitted C.D. was the cause of the bites and
scratches, but denied they occurred because he was abusing C.D.
He said the bites and scratches occurred during disciplinary
altercations. Johnson admitted, too, he had taken C.D. to Ohio,
but denied that he abused her there.
Johnson testified he told the officer and State's Attorney
C.D. was lying, trying to save herself from "going to juvenile."
Johnson said he remarked, "Why is it that you people find it
easier to believe a lie than the truth? What do you think, I am
a dog that I would get down on all fours and lick my own
daughter?"
In rebuttal, the State presented the testimony of Assistant
State's Attorney Guinn. He said he was assigned to the Johnson
case on October 20, 1995. He arrived at District 18 Police
Station at about 8 p.m. At the station ASA Guinn spoke with
several officers and C.D., upon her return from the hospital.
Then he spoke to Johnson.
ASA Guinn said Johnson told him C.D. had always had an
"unnatural love" for him. Johnson told him C.D., even as a young
child, used to "rub up against him." When C.D. was seven years
old Johnson kicked her out of his house because of her "unnatural
love" for him.
ASA Guinn also said Johnson told him when C.D. began living
with him again in April 1995, she began exhibiting her "unnatural
love" again. Johnson spoke to his grandmother about this and she
warned him that "incest ran in the family." A few weeks later,
one night when Johnson came home late, C.D. came to him and told
him she would "do anything to get her freedom." Johnson then
rubbed his penis against her vagina, but stopped because "it
didn't feel like a grown woman's."
Johnson told ASA Guinn of another incident when C.D. agreed
to do anything for her freedom. This time, Johnson told ASA
Guinn, he got down on his knees, like a dog, and licked C.D.'s
vagina. ASA Guinn testified Johnson began to cry after telling
him this and then refused to speak anymore.
After hearing all of the evidence, the court found Johnson
guilty on count one of the indictment. Johnson was convicted of
one count of aggravated criminal sexual assault and sentenced to
six-and-one-half years imprisonment.
Now, on appeal, Johnson raises the following issues: (1)
whether C.D.'s out-of-court statements were properly admitted
under section 115-10 of the Code, (2) whether the section 115-10
hearing held to determine the reliability of C.D.'s statements
encompassed the statements admitted at trial, and (3) whether
C.D.'s statements regarding uncharged conduct in Ohio were
properly admitted at trial.
DECISION
(1) Section 115-10 and child's age at trial
First, the provisions of section 115-10 relevant to this case.
Section 115-10 of the Code of Criminal Procedure, entitled
"Certain hearsay exceptions," states, in relevant part:
"(a) In a prosecution for a physical or sexual act
perpetrated upon or against a child under the age of
13, *** the following evidence shall be admitted as an
exception to the hearsay rule:
(1) testimony by such child *** of an out of
court statement made by such child *** that
he or she complained of such act to another;
and
(2) testimony of an out of court statement
made by such child *** describing any
complaint of such act or matter or detail
pertaining to any act which is an element of
an offense which is the subject of a
prosecution for a sexual or physical act
perpetrated upon or against a child *** .
(b) Such testimony shall only be admitted if:
(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
(2) The child *** either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is
corroborative evidence of the act which is
the subject of the statement."
C.D. did not testify. A court determined she was unavailable
and that decision is not challenged on appeal. Her accusations
against Johnson were presented to the trial court through Officer
Richards, under paragraphs (a)(2) and (b)(2)(B) of section
115-10. C.D. was under the age of 13 at the time of the alleged
sexual abuse and when she talked to Richards at the police
station.
Our Supreme Court has held child outcry statements
are admissible under section 115-10(a)(2) only if the victim was
under the age of 13 when the physical or sexual act occurred and
when the outcry statement was made. People v. Holloway, 177 Ill. 2d 1, 682 N.E.2d 59 (1997). Here, the defendant, relying on
Holloway, asks us to find an additional age requirement in the
statute -- that the child victim must be under the age of 13 at
the time the hearsay statements are admitted at trial.
The State contends the issue has been waived. The defendant
did not make that specific objection at trial, nor did he raise
it in his post-trial motion.
We note that the rule of waiver, or, more accurately,
procedural default, limits parties, not courts, and reviewing
courts may address the issue where justice requires. People v.
Hoskins, 101 Ill. 2d 209, 219, 461 N.E.2d 941 (1984). We choose
to address the defendant's contention because C.D.'s hearsay
statements were indispensable to the State's case.
Holloway did not address the issue raised by Johnson. In
this appeal Johnson seizes on the court's statement that the
legislature was concerned about "the ability of the victim to
understand and articulate what happened during the incident and
the reluctance many victims have relating the details of the
incident at trial." Holloway, 177 Ill. 2d at 9. The importance
of allowing the outcry hearsay, said the court, "***is dictated
by the victim's ability to adequately testify to the alleged
incident." Holloway, 177 Ill. 2d at 10.
Johnson contends, given the Supreme Court's statements in
Holloway, section 115-10 should be read to mean the phrase
"The child" in subsection (b)(2) of the statute is defined by the
phrase "a child under the age of 13" in subsection (a). The
conclusion Johnson reaches is that the child must be under the
age of 13 when her statements are introduced at trial and C.D.
was not.
We do not share Johnson's view of the Supreme Court's
meaning in Holloway or of the General Assembly's intent in
passing the statute. The statutory ambiguity found by the court
in Holloway related to the issue of the child's age at the time
the outcry statement was made, not the child's age at trial.
While the court referred to difficulties young children may have
in testifying to details of an assault, the statement had to do
with the legislative determination that the need for a specially-
created hearsay exception in child assault cases does not
outweigh traditional notions of confrontation when the declarant
is 13 or more at the time the outcry is made.
We see no ambiguity in the statute concerning the age of the
child victim at the time of trial. The fact that C.D. was 13 at
the time of trial does not effect the reliability of her outcry
statements one way or the other. Nothing in the statute
indicates a legislative intent to add the restriction urged on us
by Johnson. When there is no ambiguity in the statute, we look
no further than its plain words. See Nottage v. Jeka, 172 Ill. 2d 386, 392, 667 N.E.2d 91 (1996).
We have gone further, anyway. We have examined transcripts
of the legislative hearings held in regard to the enactment of
section 115-10 in 1995 (see 89th Ill. Gen. Assem., House Bill
160, 1995 Sess.) and its predecessor (see 82d Gen. Assem.,
Senate Bill 1077, 1982 Sess.), and we find nothing to indicate
the legislative bodies ever considered the child's age at time of
trial.
The reading urged by Johnson would add nothing to the
reliability of the hearsay, and, in fact, would invite
grave mischief. In cases where the child victim is approaching
13, delay of trial, inadvertent or not, justified or not, would
defeat admissibility. The State, on the other hand, would race
to the courthouse. An offender could benefit by fleeing the
jurisdiction before arrest, returning when the child reaches 13.
Flight, then, would trump the statute, which, understandably,
contains no provision for dealing with delay of trial.
While our view of the statute applies to subsections (a)(1),
when the child testifies at trial, and (a)(2), when the child
does not testify, the defendant's argument falls by its own
weight in this case, where the child did not testify. We cannot
see why the age of a non-testifying child at time of trial would
have any relevance to the admissibility of the child's hearsay.
One of the cases the Holloway court relied on was People
v. E.Z., 262 Ill. App 3d 29, 633 N.E.2d 1022 (1994). In that
case the court reversed the defendant's conviction because the
trial judge allowed the child victim and the child's mother to
testify to outcry statements the child made when she was more
than 13.
The case was remanded for a new trial, the court observing that
other outcry statements made when the child was under 13 could be
admitted if found reliable under the provisions of section
115-10. Since the child would have been more than 13 at the time
of a second trial, the court was inferring, without holding, that
the child's age at time of trial made no difference.
To sum, we find no principled reason to hold that the victim's
age at the time of trial has anything to do with admissibility of
outcry hearsay under the provisions of section 115-10.
(2) C.D.'s statements and the section 115-10 reliability
hearing
Johnson contends his Sixth Amendment right of confrontation
was violated because the trial court never determined the
reliability of the hearsay admitted at trial -- C.D.'s statements
to Officer Richards at the 18th District police station. He asks
us to apply a de novo standard of review to his contention.
The State first responds the defendant never made that
objection at trial, nor did he raise it in his post-trial motion.
The State's claim of waiver has merit, because the objections
raised for the first time in this appeal are the kind that should
be brought to the trial judge's attention for timely
consideration. However, because application of the statute
implicates serious constitutional protections, we decline to find
a procedural default and we will decide the issue. See
People v. Hobley, 159 Ill. 2d 272, 310, 637 N.E.2d 992 (1994).
There are two sets of hearsay statements in this case. The
first took place at the apartment building on North Burling
Street at about 2 p.m. on October 20, 1995. C.D. had run away
from home. Johnson was looking for her. He called the police to
report his daughter missing. When Johnson tried to find her, she
hid behind some friends. Reluctantly, at the urging of her
friends, C.D. informed Officer McMurdo of the sexual abuse by
Johnson she had been enduring for the past several months.
The second statement by C.D., to Officers McMurdo and
Richards, took place about four hours later, at the 18th District
police station. During those four hours, C.D. had been taken to
the hospital, examined, and released. There is no testimony
concerning anything that might have been said to her during those
four hours.
The two statements were almost identical. There is no
evidence of manipulation or intervention by any adult. Nor is
there any indication C.D. suffered from a faulty memory. Once
she began speaking, she showed no reluctance. Her statement was
specific, not vague or faltering. She made no prior or
subsequent inconsistent statements. She was old enough to
understand and relate the events she described.
A problem is created because C.D.'s statement to McMurdo at
the North Burling Street building was the subject of the section
115-10 reliability hearing, while C.D.'s statement to McMurdo and
Richards at the police station was the hearsay introduced at
trial. McMurdo did not testify at the trial. The judge who
presided at the section 115-10 hearing was not the trial judge.
The abuse of discretion standard is used to review
admissibility of outcry hearsay under section 115-10. People v.
Zwart, 151 Ill. 2d 37, 44, 600 N.E.2d 1169 (1992). We use that
standard. Here, the hearing judge examined the circumstances
surrounding C.D.'s statement to McMurdo at North Burling Street,
concluding the State carried its burden of proving that the
"time, content, and circumstances" of C.D.'s statement provided
sufficient safeguards of reliability to satisfy the statute.
Although this statutory hearsay exception is not firmly rooted in
the law, the statute and the Sixth Amendment will be satisfied
when the totality of circumstances surrounding the making of the
statement provides a particularized guarantee of trustworthiness.
Idaho v. Wright, 497 U.S. 805, 820-21, 111 L. Ed. 2d 638, 655-56,
110 S. Ct. 3139, 3149-50 (1990); People v. Zwart, 151 Ill. 2d at
43.
After reviewing the record in this case, we cannot say the
hearing court abused its discretion when it found C.D.'s
statement to McMurdo at North Burling Street satisfied the
statute.
That, of course, does not answer the question raised by the
defendant. Was it reversible error to qualify one statement
under section 115-10 and use another statement at trial? We do
not think it was. The statements were substantially the same,
within hours of each other, without any intervening circumstances
that would taint the second statement. Reliability was
unchanged. In fact, it was enhanced by similarity.
While a technical error may have been committed, we cannot
see how, in this bench trial, it caused any prejudice to the
defendant. See People v. Burnett, 239 Ill. App. 3d 582, 607 N.E.2d 317 (1993); People v.Roy, 201 Ill. App. 3d 166, 558 N.E.2d 1208 (1990). In People v. Mitchell, 155 Ill. 2d 344, 614 N.E.2d 1213 (1993), relied on by the defendant for his claim of
reversible error, there never was a hearing on the reliability of
the outcry hearsay. We see no abuse of discretion in this case.
(3) Hearsay concerning uncharged conduct
This final issue concerns the admission of C.D.'s
statements to Richards about Johnson's conduct in Ohio, during
October 1995. She told Richards the defendant licked her vagina
and then attempted to have sexual intercourse with her. She said
she forced him away by biting him on the arm and chest and by
scratching him.
A photograph of the bite and scratch marks was introduced
at trial. Johnson and one of his witnesses testified C.D. bit
and scratched him when he tried to stop her from leaving the
house. While Richards testified the defendant told him he
"grinded on" C.D. when they were in Ohio, the officer does not
quote the defendant as having said anything about bite and
scratch marks being caused by a sexual attack. Neither does ASA
Guinn. The only connection between a sexual attack in Ohio and
the bite and scratch marks is contained in C.D.'s statements to
Richards at the 18th District.
The State concedes Johnson could not be and was not charged
with the Ohio conduct. It contends, however, the Ohio sexual
attack evidence was properly admitted as corroborative evidence
of C.D.'s actions and her credibility.
The defendant does not dispute the well-established
principle that evidence of a defendant's prior sexual activity
with the same child is admissible to prove a course of conduct
and to corroborate the victim's testimony. People v. Jahn, 246
Ill. App. 3d 689, 705, 615 N.E.2d 1270 (1993). He does dispute
the way in which the other crimes evidence was admitted --
through section 115-10(a)(2).
Here, again, defense counsel at trial did not make the
specific hearsay objection now being raised on appeal. But his
hearsay objection to all of Richards' testimony had been
overruled, and when Richards testified to C.D.'s statement about
events in Ohio, defense counsel made a timely objection and
motion to strike, saying: "It goes beyond the scope of
jurisdiction. She's trying to testify to something that didn't
even happen in Cook County."
We believe the objection was close enough to raise the
issue. Even if it weren't, the interests at stake in this close
case justify our consideration of the issue under the plain error
rule. People v. Mitchell, 155 Ill. 2d 344, 614 N.E.2d 1213
(1993); People v. E.Z., 262 Ill. App. 3d 29, 33, 633 N.E.2d 1022
(1994).
C.D.'s statements to Richards were introduced for their
truth. They are hearsay. They would have no relevance if
offered for any purpose other than their truth. The State
treated them as truthful accusations at trial and the trial judge
considered them for their truth. See People v. E.Z., 262 Ill.
App. 3d at 34. It is too late for the State to say, as it did
during oral argument, that the evidence had a non-hearsay
purpose.
The question is whether section 115-10(a)(2) permits
admission of hearsay concerning uncharged conduct when the
declarant does not testify. We conclude it does not.
Section 115-10(a)(2) provides that testimony about the
child's out of court statement must describe a complaint of an
"act or matter or detail pertaining to any act which is an
element of an offense which is the subject of a prosecution for a
sexual or physical act perpetrated upon or against a child***."
(Emphasis added.) 725 ILCS 5/115-10(a)(2) (1996).
Clearly, events in Ohio were not part of the elements of
the offenses charged in Illinois. The prosecutor said so when
she offered the testimony:
"Your Honor, this is not an allegation that we have
charged within this document. It's only offered to
show the corroboration for what actually did happen
within this jurisdiction."
With that understanding, the trial judge admitted the
testimony over objection.
Two appellate decisions support our conclusion that the
hearsay evidence concerning uncharged conduct was not authorized
by section 115-10(a)(2). No other hearsay exception is proposed
by the State; none could apply.
In People v. Kinnett, 287 Ill. App 3d 709, 679 N.E.2d 481
(1997), the court affirmed a trial judge's pretrial ruling
excluding a child's section 115-10 hearsay concerning the
defendant's uncharged sexual conduct. There, the uncharged
conduct evidence was deemed relevant, but was barred by the
hearsay rule. The court held section 115-10 did not extend to
conduct occurring at times and places not contained in the
charging document. In the instant case, the Ohio conduct related
by C.D. occurred in October. The charged conduct occurred during
the first two weeks of September, in Chicago.
Kinnett relied on People v. Anderson, 225 Ill. App. 3d 636,
587 N.E.2d 1050 (1992). There, the court held hearsay evidence
of uncharged sexual conduct should not have been admitted at the
defendant's sexual abuse trial:
"While section 115-10 creates an exception to the
hearsay rule, it does not abrogate the rule nor remove
its effect other than in the area of the exception.
The plain language of the statute limits the exception
to complaints of, or details about, sexual acts which
are the subject of a prosecution." Anderson, 225 Ill.
App. 3d at 650-51.
Erroneous admission of the hearsay was harmless error in
Anderson because the child victim testified to the uncharged
events and was available for cross-examination.
We agree with the reasoning of Kinnett and Anderson. Those
cases, and ours, are distinguishable from People v. Rushing, 192
Ill. App. 3d 444, 548 N.E.2d 788 (1989)(hearsay testimony that
defendant threatened to kill victim's family if she told of
sexual assault was admissible where spoken contemporaneously with
the sexual acts); People v. Edwards, 224 Ill. App. 3d 1017, 586 N.E.2d 1326 (1992)(evidence of other forms of penetration
occurring at same time as charged conduct was mere surplusage);
and People v. Schmitt, 204 Ill. App. 3d 820, 562 N.E.2d 377
(1990)(objection to uncharged conduct statements waived, no
plain error to admit evidence of uncharged conduct that may have
taken place at same time and place as charged conduct).
We believe section 115-10(a)(2), which by legislative fiat
creates a previously non-existent hearsay exception, must be
strictly construed where the defendant has no opportunity to
confront and cross-examine his accuser. See People v.
Bridgewater, 259 Ill. App. 3d 344, 349, 631 N.E.2d 779 (1994)("In
light of the principles surrounding the admission of a statement
as an exception to the hearsay rule, section 115-10 of the Code
should be narrowly construed.").
We believe the legislature understood the inherent danger
to cherished principles of confrontation when unexamined hearsay
is allowed in a criminal trial. Confining the outcry hearsay to
acts which are an element of the offense charged was a considered
judgment, created from a perceived necessity in a narrow class of
cases. If the legislature intended any broader application of
the hearsay exception, beyond the elements of the offense
charged, it could easily have said so. Other hearsay exceptions
in the Code do not contain similar limitations. See 725 ILCS
5/115-10.1 and 5/115-10.2. We have no desire to broaden the
terms of the statute by judicial fiat, lest the exception swallow
a rule that has served so well for so long.
Finally, all else failing, the State urges us to find
admission of the hearsay about the Ohio events was harmless
error. We do not believe it was.
The trial record tells us C.D.'s statement to Richards about
biting and scratching Johnson during an Ohio sexual attack played
a crucial role in this trial. Neither Richards nor Guinn
testified the defendant admitted receiving the scratch and bite
marks in the process of "grinding on" C.D. in Ohio. On the other
hand, Johnson and his witness, Corleatha Thompson, testified C.D.
bit and scratched Johnson when he tried to stop her from running
away. Without C.D.'s hearsay, the defense testimony concerning
bites and scratches would be uncontradicted.
The trial judge rejected the defense version of how the
bites and scratches were received. Referring to C.D.'s hearsay
account of the Ohio assault, the judge said:
"This is corroborative of [C.D.'s] testimony as well as
the testimony of the officers as to what the defendant
said."
Since C.D.'s outcry hearsay and Richards' and Guinn's
accounts of Johnson's oral statements were just about the State's
entire case, we cannot see how the erroneous admission of the
uncharged conduct hearsay could be characterized as harmless.
Given the testimony in this bench trial, we cannot say "the
properly admitted evidence was so overwhelming, without the
erroneously admitted hearsay statements, that no fair-minded
trier of fact could reasonably have acquitted the defendant."
People v. Bridgewater, 259 Ill. App. 3d at 349. Admission and
use of C.D.'s hearsay concerning uncharged conduct was reversible
error.
We are not making a finding as to Johnson's guilt or
innocence. Retrial of Johnson, without the inadmissible
uncharged conduct hearsay, would not constitute double jeopardy.
CONCLUSION
Because inadmissible hearsay evidence of uncharged conduct was
admitted and relied on by the trial judge, we reverse the
defendant's conviction and remand this cause for a new trial.
REVERSED AND REMANDED.
CERDA, P.J. and McNAMARA, J., concur.
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