People v. Peck

Annotate this Case
NOS. 4-94-1009, 4-94-1010 cons.

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
AMASA M. PECK, ) Nos. 94CF95
Defendant-Appellant. ) 93CF1106
)
) Honorable
) Ronald C. Dozier,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
A jury convicted defendant, Amasa M. Peck, of four
counts of aggravated criminal sexual assault, committed upon his
two daughters under 13 years of age (720 ILCS 5/12-14(b) (West
1992)). He was sentenced to concurrent 15-year prison terms on
three counts, and eight years on the last count, to run consecu-
tively to the others. Defendant appeals, arguing the trial court
erroneously (1) admitted hearsay testimony in violation of sec-
tion 115-10 of the Code of Criminal Procedure of 1963 (Code) (725
ILCS 5/115-10 (West 1992)); (2) spoke to the jurors after they
returned the guilty verdicts and discussed the credibility of
certain evidence prior to ruling on the post-trial motion; and
(3) admitted an audiotape of an interview with one victim. We
reverse and remand for a new trial.
I. BACKGROUND
The material in this section is not to be published
pursuant to Supreme Court Rule 23. Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.
[The following material is not to be published pursuant to Su-
preme Court Rule 23.]
In December 1993, the State charged defendant with two
counts of aggravated criminal sexual assault, alleging penile-
vaginal penetration with H.P. (six years old at the time of the
offenses and seven years old at trial) sometime between (1) June
and July 1993 and (2) September and October 1993. In January
1994, the State charged defendant with three counts of aggravated
criminal sexual assault sometime between June and October 1993.
Those counts alleged (1) penile-vaginal penetration with J.P.
(seven years old at the time of the offenses and eight years old
at trial), (2) conduct involving defendant's hand and J.P.'s
vagina, and (3) conduct involving defendant's penis and J.P.'s
mouth.
A. The Section 115-10 Hearing
In February 1994, the State filed a notice of intent--
under section 115-10 of the Code--to offer at defendant's trial
statements H.P. made to her mother (Annette Peck), her aunt
(Sharon Foley), and to Mel Devall, a child protective services
investigator for the Illinois Department of Children and Family
Services (DCFS). In March 1994, the State filed another such
notice of intent to offer statements J.P. made to her mother,
Devall, and David Deerwester, a McLean County deputy sheriff.
In September 1994, the trial court conducted a section
115-10 hearing, and the following testimony was presented.
Devall testified that on October 27, 1993, he interviewed H.P.
and J.P. at their home pursuant to abuse reported to DCFS. Dur-
ing that interview, J.P. denied that defendant had touched her,
but stated that she had seen him touch H.P. with his hand as J.P.
watched from a tree. H.P. told Devall that defendant had touched
her "in a bad way" twice in her maternal grandmother's kitchen.
Devall also stated that he interviewed J.P. and H.P. again on
January 25, 1994, at their grade school, and J.P. told him that
defendant had penetrated her vagina with his finger and penis.
Devall further testified that he and Deerwester inter-
viewed J.P. a second time on January 25, 1994, at the sheriff's
department. During the interview--which the officers audio-
taped--Devall asked more leading questions of J.P. because she
was not as responsive as she had been earlier. Deerwester testi-
fied that he was present at the interview at the sheriff's de-
partment. During that interview, J.P. indicated that defendant
had touched her and H.P., as follows:
"Q. [Deerwester]: *** Did daddy ever
touch you in a bad way?
* * *
A. [J.P.]: *** [M]e and my sister went
into the living room and sat down and watched
t.v. and daddy was over on the couch and I
was on a chair with my sister.
Q. [Devall]: What happened next?
A. I forgot.
Q. [Devall]: You said daddy touched
you in a bad way. What room were you in when
daddy touched you *** this was at Grandma's
house wasn't it?
A. In the living room.
* * *
Q. [Devall]: That was one of the
times. How did daddy touch you in a bad way?
Remember what you said earlier, now, you need
to tell the truth. [J.P.], how did daddy
touch you in a bad way? What part of your
body did daddy touch in a bad way?
A. The front part.
* * *
Q. [Deerwester]: *** [W]as this on the
outside of your clothing or was this on the
inside of your clothing?
A. Outside of my clothing.
* * *
Q. [Devall]: O.k., now daddy touched
it on the outside of the clothing. Did he
also touch it on the inside of the clothing?
A. Yeah.
Q. [Deerwester]: *** Did daddy's finger
go inside or outside of your private?
A. Outside.
Q. Did it go inside some? A little
bit?
A. Yeah.
Q. Is that what you said before, that
it went inside a little bit?
A. Yeah.
* * *
Q. Did he touch [H.P.] in the same way
in the living room at Grandma's house? Do
you remember?
A. Yeah.
Q. How did daddy touch [H.P.]?
A. Well, uh ***
Q. Did he touch [H.P.] in a bad way?
A. Yes.
Q. What part of [H.P.'s] body did he
touch? Do you remember? He just touched her
in a bad way?
A. Yeah.
* * *
Q. O.k. Did you ever see anything come
out of your daddy's private?
A. White stuff, sticky stuff.
Q. White sticky stuff.
Q. [Deerwester]: When did you see that
honey?
A. [H.P.] told me that daddy had white
sticky stuff coming out of ***
Q. [H.P.] told you? Did you ever see
it or she just told you?
A. She told me.
* * *
Q. [Devall]: Did you actually see it
happen though with daddy? You saw daddy
touching [H.P.]. How did you see daddy
touching [H.P.]? Honey, you need to tell the
truth. You need to remember. What part of
daddy's body touched [H.P.]?
A. His hand.
* * *
Q. [Deerwester]: Did you[r] daddy's
private part ever touch your private part?
A. I don't know.
Q. You don't know if it did or not?
Did you ever see daddy's private part touch
your sister[']s private part?
A. I don't know about that one either.
Q. [Devall]: Would you remember some-
thing like that if it happened? Do you think
it happened or did it not happen? Do you
remember what you told us earlier?
A. I think it did.
Q. Did you see it happen? Use your
words honey. Did you see it happen?
A. Yeah.
* * *
Q. Did you see it happen in the kitchen
once too?
A. Yeah.
Q. Did it happen to you in the kitchen
once too?
A. Yeah.
Q. The same thing? Daddy's private
touched your private? What happened in
there?
* * *
Q. Which clothes did he take off? Did
he take off [H.P.'s] socks? What did he take
off? You tell us what he took off.
A. Took off the socks, shirt ***
* * *
Q. How about underpants?
A. No.
Q. He didn't take his underpants off?
He left them on? Where were they when he
touched your private on his body? Were they
all the way up or were they half way down or
were they all the way off?
A. All the way off.
* * *
Q. Who took [H.P.'s] underwear off?
A. He did.
* * *
Q. How many times did you see daddy
touch [H.P.] in a bad way?
A. Two times.
Q. Once in the kitchen and once in the
living room?
A. Yes.
Q. Did you also see him touch her one
time when you were up in a tree?
A. Yeah."
Teresa Smith, H.P. and J.P.'s former school principal,
testified that she and a student intern were present when Devall
interviewed J.P. and H.P. on January 25, 1994, at school. During
the interview, J.P. stated that defendant had touched her "in a
bad way," by inserting his finger in her vagina, attempting to
touch her with his penis, and attempting to put his penis in her
mouth. J.P. also stated that she watched from a tree as defen-
dant touched H.P with his penis. H.P. stated that defendant had
touched J.P. "in a bad way."
Nancy Pochel, H.P. and J.P.'s foster mother, testified
that when she asked J.P. (after they had been living with her for
six to eight weeks) why she was in foster care, J.P. stated that
it was because defendant had touched her "private" with his hand.
That day, she asked H.P. the same question, and H.P. stated that
she knew why she was there. Pochel then asked if it was because
defendant touched her with his hand, and H.P. responded that it
was because defendant touched her with his "private."
Foley testified that on one occasion, H.P. told her
that defendant had caused H.P.'s vagina to become red and sore.
On cross-examination, Foley stated that on that same occasion,
H.P. also said J.P. was responsible. Peck stated on cross-exami-
nation that on that occasion, H.P. told her that J.P. was respon-
sible for H.P.'s sore vagina. Peck also stated that H.P. and
J.P. knew what a penis looked like because they have a four-year-
old brother.
The trial court determined that the statements made by
H.P. and J.P. to Foley, Peck, Devall, Deerwester, Smith, and
Pochel, including the audiotaped statements, were admissible
pursuant to section 115-10 of the Code.
B. The Trial Testimony
At defendant's trial, J.P. initially testified that she
did not think that anything "bad" had happened between her and
defendant. J.P. then stated that defendant touched her with his
private area when they were in her maternal grandmother's living
room and bathroom. J.P. further stated that defendant's private
area touched the inside of her private area, and that her private
area was below her waist and between her legs. J.P. stated that
she never saw "anything unusual" come out of defendant's private
area. J.P. also stated that she never saw defendant touch H.P.
in a bad way.
H.P. next took the stand and answered some preliminary
questions as to her name and age. However, after several at-
tempts at questioning her further failed, the court excused her
as a witness.
Foley testified that on October 3, 1993, H.P. called
her into the bathroom and complained that her vagina was red and
sore. Foley asked H.P. how it happened, and H.P. said that her
"daddy did it." On cross-examination, Foley stated that H.P.'s
vagina becomes red and sore when she drinks too much soda, and
after H.P. said "daddy did it," she also said J.P. was responsi-
ble for making her vagina sore.
Peck testified that she was also present in early Octo-
ber 1993 when H.P. complained about her vagina (although she
entered the bathroom after Foley). Peck stated that H.P. "was a
little red down below," and that she had seen H.P.'s vagina in
that condition "several times" before, including after H.P. vis-
ited with defendant in July 1993. On cross-examination, Peck
stated that H.P.'s vagina becomes red when she drinks too much
soda and that H.P. told her that J.P. was responsible for making
her vagina sore.
Devall testified that he interviewed J.P. and H.P. on
October 27, 1993, at their home. J.P. denied that anyone had
touched her in a bad way. However, J.P. told him she had seen
defendant touch H.P. between the legs one time when J.P. was
playing in a tree and defendant and H.P. were near the kitchen
door. Devall also stated that, during this interview, H.P. told
him defendant had twice touched her in a bad way. H.P. stated
that defendant tried to put his "pee pee" inside her "pee pee,"
and that he did not stop until he "peed." H.P. also stated that
defendant tried to put his "pee pee" inside of her "butt."
Devall also testified that on January 25, 1994, he
interviewed H.P. and J.P. at their grade school. During that
interview, H.P. stated that she had seen defendant touch J.P. in
their grandmother's kitchen. However, H.P. did not elaborate on
that incident. J.P. stated that defendant (1) touched her with
his left hand, (2) touched the inside of her vagina with his
penis on two occasions and white sticky stuff came out, and (3)
tried to put his penis inside her mouth and inside H.P.'s mouth.
J.P. further stated that she had seen her father touch H.P. with
his penis and "white sticky stuff" come out.
Devall also testified that he and Deerwester inter-
viewed J.P. again on January 25, 1994, at the sheriff's depart-
ment. Devall stated that J.P. was unwilling to answer questions
and he asked her leading questions based upon what J.P. stated
earlier. Deerwester testified that he and Devall interviewed
J.P. at the sheriff's department on January 25, 1994, and that he
audiotaped the interview. The State, over defense counsel's
"continuing objection on the hearsay aspect" of the recording,
played the audiotape of the interview for the jury.
Next, the parties stipulated to what the testimony of
Dr. J.K. Patel would have been had he testified. Patel, a pedia-
trician, examined J.P. and H.P. in October 1993, and January
1994. During both examinations, Patel found the hymen and geni-
talia of J.P. and H.P. were normal. These findings are not con-
sistent with full penetration; Patel would expect to observe
injury or trauma in the event of full penetration and he observed
none. These findings are neither consistent nor inconsistent
with slight penetration of or rubbing the exterior portions of
the victims' vaginas.
Smith and Pochel testified substantially the same as
they had at the section 115-10 hearing.
Defendant testified and denied committing the crimes
charged. On this evidence, the jury convicted defendant.
[The preceding material is not to be published pursuant to Su-
preme Court Rule 23.]
II. HEARSAY STATEMENTS ADMITTED PURSUANT TO SECTION 115-10
Defendant argues the trial court erred by admitting
out-of-court statements made by J.P. regarding defendant's acts
involving H.P. and an out-of-court statement made by H.P. regard-
ing defendant's acts involving J.P. We agree.
Section 115-10(a)(2) of the Code provides as follows:
"(a) In a prosecution for a sexual act
perpetrated upon a child under the age of 13,
***, the following evidence shall be admitted
as an exception to the hearsay rule:
***
(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 prosecu-
tion for a sexual act perpetrated upon a
child." (Emphasis added.) 725 ILCS 5/115-
10(a)(2) (West 1992).
In People v. Embry, 249 Ill. App. 3d 750, 763, 619 N.E.2d 246,
255 (1993), this court construed section 115-10(a)(2) of the Code
as "limiting the admission of out-of-court statements to those
pertaining to an act, matter, or detail of a sexual offense com-
mitted upon the declarant child victim." However, this court
also held that an exception exists where statements of a child
about defendant's acts involving another child are "components of
the contemporaneous and ongoing series of events constituting a
matter or detail pertaining to the offense perpetrated against
[the declarant] herself." (Emphasis in original.) Embry, 249
Ill. App. 3d at 763, 619 N.E.2d at 255.
A. Burden of Establishing Admissibility of Hearsay
Statements Pursuant to Section 115-10

Initially, we address the State's argument that the
out-of-court statements at issue are admissible even though--the
State concedes--it is unclear whether defendant's acts on the
other child occurred contemporaneously with the acts perpetrated
against the declarant. The State contends defendant bears the
burden to show the statements concerned separate occurrences. We
disagree.
In People v. Zwart, 151 Ill. 2d 37, 43, 600 N.E.2d 1169, 1171 (1992), the supreme court held that the State, as the
proponent of statements sought to be admitted pursuant to section
115-10 of the Code, bears the burden of establishing that they
were reliable and not the result of adult prompting or manipu-
lation. Similarly, we conclude the State, as the proponent of
the statements here, bears the burden of establishing that the
statements made by a child regarding defendant's acts against
another child involve "components of the contemporaneous and
ongoing series of events constituting a matter or detail pertain-
ing to the offense perpetrated against [the declarant] herself."
(Emphasis in original.) See Embry, 249 Ill. App. 3d at 763, 619 N.E.2d at 255. Whether the statement qualifies as such depends
on the particular circumstances in a given case. Some relevant
considerations are the following: (1) the relationship of the
declarant to the child upon whom the witnessed sexual act is
perpetrated; (2) the proximity of such act--in time and place--to
the act allegedly performed upon the declarant; (3) the similari-
ty of the two acts; and (4) the existence of a common perpetra-
tor. These considerations may be significant in explaining the
declarant's willingness to submit to similar sexual acts, as well
as her reluctance to resist, cry out, or complain to others.
B. Admissibility of Section 115-10 Hearsay
In this case, the trial court conducted a hearing and
determined that statements J.P. and H.P. made to their aunt (Fo-
ley), their mother (Annette), Smith (the girls' former school
principal), Pochel (foster mother), Devall (DCFS investigator),
and Deerwester (deputy sheriff), including the audiotaped state-
ments of the January 25, 1994, interview of J.P. at the sheriff's
department, were admissible.
The jury heard, through the audiotape, one statement by
J.P. which constituted double hearsay--namely, that H.P. told
J.P. that H.P. had seen "white sticky stuff" coming out of
defendant's penis. Such double hearsay does not come within the
exception set forth in Embry. See Embry, 249 Ill. App. 3d at
763, 619 N.E.2d at 255; see also People v. Petitt, 245 Ill. App.
3d 132, 142, 613 N.E.2d 1358, 1367 (1993).
Further, the trial court admitted three hearsay state-
ments by J.P. which clearly did not involve a matter or detail
pertaining to an act committed contemporaneously against J.P.
Devall testified that during his initial interview of H.P. and
J.P. in October 1993, J.P. told him she watched from a tree as
defendant touched H.P. with his hand. The audiotape contained a
substantially similar hearsay statement by J.P. Finally, Smith
testified that during Devall's January 25, 1994, interview of
H.P. and J.P. at school, J.P. stated that as she watched from a
tree, defendant touched H.P. with his penis.
The trial court also admitted five hearsay statements
by J.P. and one hearsay statement by H.P. which were unclear as
to whether they constituted a matter or detail pertaining to an
act committed contemporaneously against the declarant child.
Devall testified that during the interview at school, J.P. stated
she had seen defendant touch H.P. with his penis. The audiotape
contained four hearsay statements by J.P. which were similarly
unclear: (1) J.P. stated she had seen defendant touch H.P. with
his hand, but no other part of his body; (2) she had seen "it"
happen to H.P. in her grandmother's living room; (3) she saw
defendant's "private" touch H.P.; and (4) she saw defendant's
"private" go inside H.P.'s mouth "a little bit." Devall also
testified that during the interview at school, H.P. told him she
had seen defendant touch J.P. "in a bad way" in her maternal
grandmother's kitchen.
Under the interpretation of section 115-10 as set forth
in Embry (249 Ill. App. 3d at 763, 619 N.E.2d at 255), we con-
clude the trial court erred by admitting (1) one double hearsay
statement by J.P., (2) three hearsay statements by J.P. which
clearly did not involve a detail pertaining to an act committed
against J.P., and (3) five hearsay statements by J.P. and one by
H.P. which were unclear regarding whether they constituted a
matter or detail pertaining to an act committed contemporaneously
against the declarant child victim.
The State maintains that any error in admitting the
hearsay statements at issue was harmless. We disagree. The
trial court erred by admitting 10 hearsay statements by J.P. and
H.P. through two trial witnesses and the audiotape. The evidence
against defendant was not overwhelming. Both Foley and Peck
testified that H.P.'s vagina becomes red and sore when H.P.
drinks too much soda. Peck also stated that J.P. never has vagi-
nal redness. Also, the statements by J.P. and H.P. contained
inconsistencies. H.P. blamed both defendant and J.P. for her
sore vagina; during the two interviews on January 25, 1994,
J.P.'s statements about the incident she watched from the tree
were inconsistent as were those regarding whether she saw "white
sticky stuff" coming from defendant's penis. (At one point, J.P.
stated that H.P. told her about the "white sticky stuff"). In
addition, the medical testimony indicated that Dr. Patel's find-
ings were inconsistent with full vaginal penetration and incon-
clusive as to "slight penetration."
Although we reverse, we conclude that the remaining
evidence was sufficient to support a finding of guilt beyond a
reasonable doubt. Thus, defendant faces no risk of double jeop-
ardy on retrial. See People v. Cruz, 162 Ill. 2d 314, 374, 643 N.E.2d 636, 664 (1994).
III. ISSUES ON REMAND
We now consider issues likely to arise on remand.
A. Trial Judge's Post-Verdict Meeting with Jurors
Defendant argues the trial court erred when it spoke to
jurors after they returned the guilty verdicts and discussed with
them the credibility of certain evidence prior to ruling on
defendant's post-trial motion challenging the sufficiency of the
evidence. We disagree.
The law assumes that the trial court, in a bench pro-
ceeding, considers only competent evidence and "[t]his assumption
will be overcome only if the record affirmatively demonstrates
the contrary, as where it is established that the court's finding
rests on a private investigation of the evidence, or on other
private knowledge about the facts in the case." (Emphasis add-
ed.) People v. Tye, 141 Ill. 2d 1, 26, 565 N.E.2d 931, 943
(1990). Thus, the record must affirmatively show that the trial
court considered and, in fact, rested its determination on the
jurors' comments.
In ruling on the post-trial motion, the trial court
stated the following:
"THE COURT: [T]he *** Court believes
that the judgments [it] made *** are in ac-
cordance with both the letter and the spirit
of [s]ection 115-10; and [it] understands the
concern of defense counsel *** in terms of
the difficulty of trying to cross[-]exam[ine]
those statements [made by J.P. and H.P.].
Nevertheless, the defense counsel is not
without recourse in that situation. In fact,
in talking to some of the jurors afterwards
they thought defense counsel did an excellent
job with Mr. Devall and Mr. Deerwester's
testimony regarding the tape[-]recorded in-
terview in the nature of the leading ques-
tions, but *** the jurors[] found the testi-
mony of *** Smith[] to be extremely compel-
ling; and to a lesser extent, only because it
was not very lengthy, the testimony of the
foster mother ***."
In context, these remarks were directed at defense
counsel's concerns about his inability to effectively cross-exam-
ine witnesses offering hearsay evidence. We conclude this does
not affirmatively show that the court considered or based its de-
termination on the jurors' comments in deciding the post-trial
motion.
It is a common and accepted practice for trial courts
to meet with jurors after they have reached a verdict--provided,
of course, the jurors' term of service has been entirely complet-
ed. The purpose is to assure them that they did a good job and
answer questions. Although we do not want to discourage this
practice, we note that it is not necessary for the court to in-
quire about the jury's analysis of the case--particularly when
post-trial motions are to be filed. The post-verdict meeting
offers an opportunity for the trial court--not the jurors--to
answer questions.
Even if the trial court had relied upon the jurors'
comments, the relief defendant requests--a new trial--would not
follow. Instead, the appropriate remedy would be to vacate the
denial of the post-trial motion and remand for consideration anew
by a different judge.
B. The Admissibility of an Audiotaped Out-of-Court Statement
Made by a Child Victim Pursuant to Section 115-10
Defendant argues section 115-10 of the Code does not
allow the admission of an audiotaped out-of-court statement of a
child victim because it does not specifically provide for the
introduction of such evidence. We disagree. Defendant directs
us to the decision of the Second District Appellate Court in
People v. Mitchell, 225 Ill. App. 3d 708, 717, 588 N.E.2d 1247,
1253 (1992), which so held. However, we are not bound by that
court's holding and choose not to follow it.
In construing a statute, a court must ascertain and
give effect to the legislature's intent in enacting it. Collins
v. Board of Trustees of the Firemen's Annuity & Benefit Fund, 155 Ill. 2d 103, 110, 610 N.E.2d 1250, 1253 (1993). Legislative
intent is best determined by the language of the statute. People
v. Ferrell, 277 Ill. App. 3d 74, 77, 659 N.E.2d 992, 995 (1995).
Although this court in Bridgewater (259 Ill. App. 3d at 349, 631
N.E.2d at 782) wrote that "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," a stat-
ute should nonetheless be read as a whole and its language given
its plain meaning (Ferrell, 277 Ill. App. 3d at 77, 659 N.E.2d at
995). A court also must consider the reason and necessity for
the law, as well as its objective. Collins, 155 Ill. 2d at 111,
610 N.E.2d at 1253. In addition, a court should give a statute
capable of two interpretations the one which is reasonable and
which will not produce absurd, unjust, unreasonable, or inconve-
nient results the legislature could not have intended. People v.
Stanciel, 153 Ill. 2d 218, 233-34, 606 N.E.2d 1201, 1210 (1992).
Child sexual abuse cases present special problems that
make their prosecution more difficult than cases involving adult
victims. The most obvious is that the child victim (usually the
sole witness to the offense) may be unable to testify adequately
--or at all--regarding what occurred, because of guilt, fear, or
intimidation. In response, the legislature enacted the original
version of section 115-10 of the Code in 1983 (Pub. Act 82-782,
1, eff. January 1, 1983 (1982 Ill. Laws 220)), which required
the child victim to testify at trial and specifically provided
for the admission of "testimony by the person to whom the child
complained that such complaint was made in order to corroborate
the child's testimony." Ill. Rev. Stat. 1983, ch. 38, par. 115-
10. Effective January 1, 1988, section 115-10(a)(2) was amended
(Pub. Act 85-837, 1, eff. January 1, 1988 (1987 Ill. Laws
3471)), eliminating the provision that the "person to whom the
child complained" (emphasis added) (Ill. Rev. Stat. 1985, ch. 38,
par. 115-10(a)(2)) may testify, and rewriting it to provide that
"testimony of an out[-]of[-]court statement made by such child
describing any complaint" (emphasis added) (Ill. Rev. Stat. 1987,
ch. 38, par. 115-10(a)(2)) is admissible, if the provisions of
that section are met, including a determination of sufficient
safeguards of reliability.
Currently, section 115-10 reads, in relevant part, as
follows:
"(a) In a prosecution for a sexual act
perpetrated upon a child under the age of 13,
***, the following evidence shall be admitted
as an exception to the hearsay rule:
***
(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 prosecu-
tion for a sexual act perpetrated upon a
child.
(b) Such testimony shall only be admit-
ted if:
(1) The court finds in a hearing con-
ducted 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."
(Emphasis added.) 725 ILCS 5/115-10 (West
1992).
In light of the necessity for section 115-10, and giv-
ing the statutory language its plain and reasonable meaning, we
conclude "testimony of an out[-]of[-]court statement made by such
child describing any complaint" includes an audiotape of an out-
of-court statement made by a child victim, provided that it is
otherwise admissible under that section and the party offering it
lays a proper foundation. 725 ILCS 5/115-10(a)(2) (West 1992).
In support of our conclusion, we note that Devall tes-
tified verbatim--with the assistance of his notes--regarding the
questions asked and the answers given during his initial inter-
view with H.P. in October 1993. Allowing the jurors to hear an
audiotape of an interview with a child victim (which otherwise
meets all statutory requirements) is essentially the same as
allowing a witness to testify verbatim regarding the statements
made by a child victim during such an interview. Indeed, the
audiotape possesses more probative value than a witness' testify-
ing verbatim from notes because the audiotape reveals the tone,
pauses, certainties, and nuances of the witness statements. To
interpret the statute as defendant requests produces an unreason-
able result--keeping from the jury the most probative evidence
available on a critical issue--that our legislature could not
have intended.
Defendant also errs by relying on People v. Bastien,
129 Ill. 2d 64, 541 N.E.2d 670 (1989). In Bastien, the supreme
court held unconstitutional a statute authorizing the admissibil-
ity of the videotaped statement of the child victim in a sexual
abuse case when the victim was available at trial for cross-exam-
ination. Bastien, 129 Ill. 2d at 79-80, 541 N.E.2d at 677.
Unlike this case, the statute in Bastien involved videotaping a
child victim's "statement or testimony" for use at trial without
--as was done here--first determining whether the circumstances
surrounding the videotaping contained sufficient safeguards of
reliability. Bastien, 129 Ill. 2d at 68-69, 541 N.E.2d at 672.
C. The Trial Court's Decision to Admit the Audiotape
Defendant argues that even if the audiotape of the
interview of J.P. is admissible pursuant to section 115-10 of the
Code, it was error to admit it because it lacked any "particular-
ized guarantees of trustworthiness" as required by Idaho v.
Wright, 497 U.S. 805, 814-15, 111 L. Ed. 2d 638, 651-52, 110 S. Ct. 3139, 3146 (1990), and thus violated the confrontation
clause.
In People v. Coleman, 205 Ill. App. 3d 567, 584, 563 N.E.2d 1010, 1021 (1990), this court held the following regarding
Wright's impact on section 115-10:
"Wright has more particularly indicated what
is needed to meet this requirement [of par-
ticularized guarantees of trustworthiness].
Accordingly, it is necessary to construe the
general language of section 115-10(b)(1) to
be in line with the more particular language
of Wright. Thus, the required finding [under
section 115-10(b)(1)] that the statement pro-
vides 'sufficient safeguards of reliability'
must be understood to be of a comparable
nature with a finding that the circumstances
of the statement render the declarant 'par-
ticularly worthy of belief'."
People v. Barger, 251 Ill. App. 3d 448, 462, 624 N.E.2d 405, 413-
14 (1993), also addressed this issue:
"[T]he standards regarding the right to con-
frontation provide guidance on how to inter-
pret the requirement of section 115-10 ***
that the time, content, and circumstances of
the hearsay statements provide sufficient
safeguards of reliability.
In Idaho v. Wright (1990), 497 U.S. 805,
814, 111 L. Ed. 2d 638, 651-52, 110 S. Ct. 3139, 3146, the United States Supreme Court
held that incriminating hearsay statements
*** must bear adequate 'indicia of reliabili-
ty.' Such 'indicia of reliability' can come
from the statement's fitting into one of the
firmly established hearsay rules or by 'a
showing of particularized guarantees of
trustworthiness.' Wright, 497 U.S. at 816,
111 L. Ed. 2d at 653, 110 S. Ct. at 3147.
*** The Court listed some factors to
consider when determining the reliability of
such hearsay statements, including, but not
limited to, (1) spontaneity and consistent
repetition, (2) the mental state of declar-
ant, (3) use of terminology unexpected of a
child of a similar age, and (4) lack of mo-
tive to fabricate. Wright, 497 U.S. at 821-
22, 111 L. Ed. 2d at 656, 110 S. Ct. at
3150."
We now clarify Coleman and Barger and expressly hold that section
115-10 incorporates the Wright criteria, with the result that--by
definition--if the child victim's statement meets the require-
ments of section 115-10, it also meets all requirements of
Wright.
In so holding, we reject the analysis asserted in the
specially concurring opinion that "the confrontation clause per-
mits hearsay evidence which does not fall within a firmly rooted
hearsay exception only when use of that evidence is necessary,
only when the declarant is unavailable to testify in court."
Slip op. at 32. The specially concurring opinion quotes a por-
tion of Wright (which in turn quoted Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980)) as authority for
the assertion that the prosecution must either produce--or demon-
strate the unavailability of--the hearsay declarant. However, in
White v. Illinois, 502 U.S. 346, 354, 116 L. Ed. 2d 848, 858, 112 S. Ct. 736, 741 (1992), written two years after Wright and 12
years after Roberts, the Supreme Court explicitly overruled Rob-
erts on this point, "clarifying" that case as standing "for the
proposition that unavailability analysis is a necessary part of
the Confrontation Clause inquiry only when the challenged out-of-
court statements were made in the course of a prior judicial
proceeding"--which, of course, was the situation in Roberts and
decidedly not in either Wright or this case. Thus, White
stripped away the sole foundation for the specially concurring
opinion's analysis--the obiter dicta unfortunately inserted into
Roberts.
Further, attempts to limit White's rejection of
Roberts' dicta on the ground that White dealt with firmly rooted
hearsay exceptions--spontaneous declarations and statements made
to medical personnel--are not persuasive because, throughout
White's lengthy analysis rejecting Roberts, the Court never once
mentions the particular hearsay exceptions at issue in White.
Indeed, in a footnote in White, the Court defines the so-called
"unavailability rule"--which definition is essentially the same
as that asserted in the specially concurring opinion--and then
provides several reasons why "there is little benefit, if any, to
be accomplished by imposing an 'unavailability rule.'" White,
502 U.S. at 354 & n.6, 116 L. Ed. 2d at 858 & n.6, 112 S. Ct. at
742 & n.6.
Section 115-10(b) provides that certain evidence shall
be admitted as an exception to the hearsay rule under the follow-
ing circumstances:
"(1) The court finds in a hearing con-
ducted 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." 725
ILCS 5/115-10(b) (West 1992).
As we have indicated, the State, as the proponent of
these statements, bears the burden of establishing they were
reliable and not the result of adult prompting or manipulation,
and we will not reverse a trial court's determination unless the
court abused its discretion (Zwart, 151 Ill. 2d at 43, 44, 600 N.E.2d at 1171, 1172).
Here, Devall and Deerwester interviewed J.P. at the
sheriff's office after interviewing her earlier that same day;
the second interview contained numerous leading and suggestive
questions. Although Devall interjected comments such as "remem-
ber what you said earlier," he also frequently refused to accept
J.P.'s initial response and suggested answers. As one example,
Devall questioned J.P. about how defendant touched her on one
occasion:
"Q. So, daddy's private touched your
private? Was it on the outside of the cloth-
ing or the inside of the clothing?
A. Outside.
Q. O.k., did it touch it on the inside
too? How did daddy's private touch your
private? Was it a poke or was it a rub or
what, what kind of a touch was it?
A. Poke.
Q. Did daddy's private go inside of
your private? I can't hear you honey.
A. Yes."
As another example, Deerwester and Devall asked J.P. if defendant
touched her with his penis:
Q. [Deerwester]: Did you[r] daddy's
private part ever touch your private part?
A. I don't know.
Q. You don't know if it did or not?
Did you ever see daddy's private part touch
your sister[']s private part?
A. I don't know about that one either.
Q. [Devall]: Would you remember some-
thing like that if it happened? Do you think
it happened or did it not happen? Do you
remember what you told us earlier?
A. I think it did.
Q. Did you see it happen? Use your
words honey. Did you see it happen?
A. Yeah."
In addition, J.P. did not make any out-of-court state-
ments spontaneously. It was only after her mother's then-boy-
friend contacted DCFS that J.P. made incriminating statements
during questioning by Devall and Deerwester. J.P.'s statements
at the sheriff's department also contained inconsistencies: (1)
at one point Devall asked J.P. whether she remembered a time that
defendant touched H.P. in the kitchen, and J.P. responded that
she did not; later, Devall asked J.P., "Did you see it happen in
the kitchen once too?," and J.P. responded that she had; (2)
Devall asked J.P. if she had ever seen anything come out of
defendant's "private," and J.P. answered "[w]hite stuff, sticky
stuff"; Deerwester then asked J.P. when she had seen it, and J.P.
said that H.P. had told her about it; and (3) Deerwester asked
J.P. if defendant's "private" ever touched J.P.'s "private part,"
and J.P. said she did not know; eight questions later, Devall
asked J.P. the same question, and J.P. said no; Devall then said,
"[y]ou don't remember that. *** You remembered one time that
that happened. Did that happen?," and J.P. responded, "Yeah."
Regarding the descriptive terms used by J.P., in re-
sponse to all but one question at the sheriff's office, J.P.
referred to her vagina as her "private," or private area or part
(terms indicative of a young girl not versed in the nomenclature
of bodily organs); however, in response to one of Deerwester's
questions regarding what she called her part "[d]own below," J.P.
responded, "Vagina. Vagina."
Viewing the totality of the circumstances surrounding
the statements J.P. made at the sheriff's department--in particu-
lar, the frequent leading and suggestive questions--we conclude
that the State failed to show the statements possessed sufficient
"safeguards of reliability" under section 115-10 of the Code.
Accordingly, we hold that the trial court abused its discretion
by admitting the audiotape, which precludes its admission on
remand.
We note in passing that the trial court itself did not
find statements made by J.P. at the sheriff's department to be
reliable. The court stated, "I could find that the leading na-
ture of those questions asked at that interview is such to cast
doubt on the reliability, but I think the defense would probably
want those." Although the court may have believed it was bene-
fitting defendant by admitting the audiotape, it should not have
done so over defendant's objection. If defendant wanted the jury
to hear the audiotape, he could have offered it.
IV. CONCLUSION
For the reasons stated, we reverse and remand for a new
trial consistent with the views expressed herein.
Reversed and remanded.
KNECHT, J., concurs.

COOK, J., specially concurs.
JUSTICE COOK, specially concurring:
I disagree with the statement in the majority opinion
that if a statement "meets the requirements of section 115-10, it
also meets all requirements of Wright." Slip op. at 25.
In Wright, quoting Roberts, the court noted that the
confrontation clause operates in two separate ways to restrict
the range of admissible hearsay.
"'First, in conformance with the Framers' pre-
ference for face-to-face accusation, the Sixth
Amendment establishes a rule of necessity.
In the usual case ..., the prosecution must
either produce, or demonstrate the unavaila-
bility of, the declarant whose statement it
wishes to use against the defendant.' Ibid.
(citations omitted). Second, once a witness
is shown to be unavailable, 'his statement
is admissible only if it bears adequate "in-
dicia of reliability." Reliability can be
inferred without more in a case where the
evidence falls within a firmly rooted hearsay
exception. In other cases, the evidence must
be excluded, at least absent a showing of
particularized guarantees of trustworthiness.'"
Wright, 497 U.S. at 814-15, 111 L. Ed. 2d at
651-52, 110 S. Ct. at 3146, quoting Roberts,
448 U.S. at 65, 66, 65 L. Ed. 2d at 607, 608,
100 S. Ct. at 2538, 2539.
In my view, the confrontation clause permits hearsay
evidence which does not fall within a firmly rooted hearsay ex-
ception only when use of that evidence is necessary, only when
the declarant is unavailable to testify in court. A declarant is
unavailable where the declarant is present but incapable of com-
municating with the jury. Wright, 497 U.S. at 816, 111 L. Ed. 2d
at 652, 110 S. Ct. at 3147. Section 115-10 of the Code does not
contain any corresponding limitation on the use of hearsay evi-
dence to cases where there is a necessity for such evidence.
Under section 115-10, any number of witnesses may testify to what
the child told them out of court even if the child testifies
fully and freely in court. See Barger, 251 Ill. App. 3d 448, 624 N.E.2d 405. Accordingly, I disagree that compliance with section
115-10 insures there will be compliance with the confrontation
clause.
In White, the Court considered whether the confronta-
tion clause required that before a trial court admits testimony
under the "spontaneous declaration" and "medical examination"
exceptions to the hearsay rule the prosecution must either pro-
duce the declarant at trial or the trial court must find that the
declarant is unavailable. Disclaiming any intent to establish a
wholesale revision of the law of evidence under the guise of the
confrontation clause, the Court refused to impose any such re-
quirement. "[W]here proffered hearsay has sufficient guarantees
of reliability to come within a firmly rooted exception to the
hearsay rule, the Confrontation Clause is satisfied." White, 502 U.S. at 356, 116 L. Ed. 2d at 859, 112 S. Ct. at 743. Spontane-
ous declarations and statements made in the course of receiving
medical care are made in contexts that provide substantial guar-
antees of their trustworthiness. White, 502 U.S. at 355, 116 L. Ed. 2d at 859, 112 S. Ct. at 742.
Section 115-10 is not a firmly rooted exception to the
hearsay rule, and White accordingly provides no justification for
allowing the admission of hearsay statements under section 115-10
when the child declarant testifies fully and freely in court.