People v. Dean
Annotate this Case
Under Supreme Court Rule 367 a party has 21 days after the filing
of the opinion to request a rehearing. Also, opinions are subject
to modification, correction or withdrawal at anytime prior to
issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 79750--Agenda 7--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
CHARLES M. DEAN, Appellant.
Opinion filed February 20, 1997.
JUSTICE BILANDIC delivered the opinion of the court:
The defendant was charged by information in Warren
County with committing aggravated criminal sexual assault (720
ILCS 5/12--14(b)(1) (West 1992)) of his stepdaughter, E.C.,
between February 1, 1992, and October 6, 1992. The charge
specifically alleged that the defendant, who was 17 years of age
or older, knowingly committed an act of sexual penetration upon
E.C., who was under 13 years of age when the act was
committed, by placing his fingers in E.C.'s vagina. After
waiving his right to a trial by jury, the defendant was convicted
at a bench trial of aggravated criminal sexual assault and
sentenced to 30 years' imprisonment. The appellate court, with
one justice dissenting, affirmed the defendant's conviction and
sentence. No. 3--93--0659 (unpublished order under Supreme
Court Rule 23). We allowed the defendant's petition for leave
to appeal (155 Ill. 2d R. 315), and now reverse the judgments
of the appellate and circuit courts and remand for a new trial.
FACTS
Prior to trial, the trial court conducted an in camera
competency hearing of the five-year-old victim, E.C. The court
determined that E.C. was competent to testify. The State began
its case by calling E.C. as its first witness. After a few
background questions, E.C. became upset and started crying
when asked about the defendant. E.C. then refused to respond
to the State's questions. The court found that E.C. was not
competent to testify at that time; however, the court reserved its
ruling on the State's motion to obtain E.C.'s testimony by
closed circuit television.
The State proceeded with its case by calling Sherry Dean,
E.C.'s mother. Sherry testified that between July and November
of 1992 she lived in a second-floor apartment of a three-story
building at 509 East Broadway in Monmouth, Illinois, with the
defendant and her four children. She married the defendant on
October 10, 1992.
Rebecca Harrell, a mental health therapist at the Spoon
River Mental Health Center in Monmouth, next testified for the
State. Harrell testified that she first interviewed E.C. on
November 3, 1992. E.C. was referred by the Illinois Department
of Children and Family Services (DCFS) for assessment and
possible treatment for alleged sexual abuse. According to
Harrell, E.C. told her that she was living with her grandmother
because "nasty Charlie hurted [sic] me." During their next
session, E.C. stated to Harrell that her mother told her not to tell
anyone what the defendant had done to her. During subsequent
sessions, E.C. demonstrated her ability to identify body parts.
E.C., through the use of an anatomically correct female doll,
showed Harrell how the defendant had put his hand on her "pee
pee" and stuck two fingers inside her and wiggled them around
so that it hurt. Harrell also testified that E.C. indicated to her
that the incident occurred on the bed in her mother's bedroom,
and that after the defendant touched her genital area she tried to
stick him with a fork. According to Harrell, E.C. did not make
any allegations of sexual abuse against anyone else other than
the defendant.
The next witness called by the State was Cherry
Richardson, an investigator for DCFS. Richardson testified that
she and police lieutenant David Brooks interviewed E.C. in
response to an October 22, 1992, hotline report of possible
abuse. During a series of interviews, E.C. told her that the
defendant had touched her in her "private area." E.C.
demonstrated with an anatomically correct female doll how the
defendant had put his fingers into her vagina and moved them
around. Again, E.C. stated that it "hurted." Richardson next
testified that, on January 8, 1993, she and Lieutenant Brooks
took E.C. for a drive to determine where the assault had taken
place. When they approached the vicinity of 509 East
Broadway, the location of the apartment building where E.C.
used to live with her mother and the defendant, E.C. indicated
that the incident did not happen upstairs or downstairs, but in
the middle. When asked if the abuse had occurred at the
apartment on Broadway, E.C. indicated that it occurred at
"Jimbo's." E.C. referred to her biological father, James C., as
"Jimbo." Richardson and Lieutenant Brooks took E.C. to James
C.'s apartment, located at 405 South Main Street. Once inside
the apartment, E.C. pointed to a rollaway bed in the corner of
James C.'s bedroom, which she identified as "mommie's."
James C. later testified that the bed had been at Sherry's
apartment on Broadway until the children were removed from
her care sometime in November of 1992.
Also testifying as a witness for the State was Dr. Sun Park,
a pediatrician at Community Memorial Hospital in Monmouth.
On October 27, 1992, Dr. Park examined E.C. Prior to the
examination, E.C. told Dr. Park that the defendant had hurt her.
After an examination of E.C., Dr. Park testified that E.C.'s
genitalia displayed a widened vestibule and was missing a
membrane usually found present in young girls. In Dr. Park's
opinion, E.C.'s condition could have been caused by forcible
digital penetration, and had probably occurred at least a few
days prior to the examination.
At the close of its case in chief, the State recalled E.C. as
a witness. After responding to some preliminary questions, E.C.
was asked if anything happened between her and the defendant.
E.C. refused to respond in the defendant's presence. The State
then renewed its motion to take E.C.'s testimony by closed
circuit television. The court granted the State's motion over the
defendant's objection.
At the closed circuit television proceeding, E.C. testified
that she currently lives with her father, "Jimbo." However, she
used to live with her mother, her siblings and the defendant.
According to E.C., while she lived at her mother's house, the
defendant came into her bedroom and put his fingers into her
"private" and moved them around and hurt her. E.C. stated that
she told both of her parents that the defendant touched her. E.C.
also testified on cross-examination that the defendant had cut off
the heads of puppies with a knife. She saw blood on the counter
and the floor.
After the State concluded its case in chief, the defense
called Sherry Dean, E.C.'s mother. Sherry testified that the
puppy incident, referred to by E.C., had occurred in Iowa in
1991, while she was married to her former husband, John
Holden. She explained that she left the home after an argument.
When she and the children returned, they found that Holden had
hung some puppies in a tree, cut them open, and placed them on
the kitchen counter. There was blood all over the kitchen.
Sherry testified that she and the defendant moved into the
apartment on Broadway in May of 1992. Sherry denied that E.C.
told her that the defendant had hurt or molested her. James C.
also testified that E.C. never told him about being sexually
abused or hurt by the defendant.
The defendant had waived his right to a jury trial. After
considering the evidence, the trial court found the defendant
guilty as charged. The trial court subsequently sentenced the
defendant to 30 years' imprisonment.
The defendant appealed his conviction and sentence, which
a majority of the appellate court affirmed. The majority rejected
the defendant's argument that he is entitled to a new trial
because E.C.'s testimony on closed circuit television was
admitted pursuant to the Child Shield Act (725 ILCS 5/106B--1
(West 1992)), which was subsequently declared unconstitutional
in People v. Fitzpatrick, 158 Ill. 2d 360 (1994). The majority
recognized that the Child Shield Act was found to be
unconstitutional in Fitzpatrick because it violated a defendant's
state constitutional right to meet witnesses "face to face."
Nevertheless, the majority noted that during the pendency of the
defendant's appeal, the Illinois Constitution was amended and
the Child Shield Act reenacted. Consequently, the majority
determined that the reenacted Child Shield Act would allow for
the admission of E.C.'s testimony by closed circuit television on
retrial. The majority then reasoned that any error in admitting
E.C.'s testimony in the first trial had been "cured by the
subsequent legislative activity and rendered harmless beyond a
reasonable doubt in this case."
A dissenting justice disagreed with the majority's
conclusion that the subsequent amendment to the confrontation
clause of the Illinois Constitution and reenactment of the Child
Shield Act cured the error committed at the defendant's trial. He
argued that retroactively applying the law as it now exists to the
defendant's case violates the state and federal constitutional
prohibitions against ex post facto laws (Ill. Const. 1970, art. I,
16; U.S. Const., art. I, 9, 10).
ANALYSIS
I. Right to Confrontation
The defendant argues that he was deprived at trial of his
constitutional right to a face-to-face confrontation with the
victim, E.C., whom the trial court permitted to testify outside
the defendant's presence by closed circuit television pursuant to
the Child Shield Act (725 ILCS 5/106B--1 (West 1992)). The
defendant contends that at the time he allegedly committed the
offense, and at the time of his trial, section 8 of article I of the
Illinois Constitution (Ill. Const. 1970, art. I, 8) expressly
guaranteed a criminal defendant the right to confront witnesses
face to face. In support of his argument, the defendant relies on
this court's decision in People v. Fitzpatrick, 158 Ill. 2d 360
(1994). According to the defendant, the appellate court erred by
failing to apply the Fitzpatrick decision to his case. The
defendant therefore requests that we reverse the decision of the
appellate court, reverse his conviction and grant him a new trial.
A. People v. Fitzpatrick
The first issue before this court is whether our decision in
Fitzpatrick should be applied to the defendant's case. In
Fitzpatrick, the defendant was charged with seven counts of
aggravated criminal sexual assault against four minors. The
State moved pursuant to the Child Shield Act (Ill. Rev. Stat.
1991, ch. 38, par. 106B--1) for an order allowing the four minor
victims to testify outside of the defendant's presence by closed
circuit television. The Child Shield Act allowed child victims of
certain enumerated sexual crimes to testify outside the
courtroom by closed circuit television. Ill. Rev. Stat. 1991, ch.
38, par. 106B--1(a)(1). Pursuant to the Act, a defendant
remained in the courtroom but was able to communicate with
his attorney, who was in the room where the child was
testifying. Ill. Rev. Stat. 1991, ch. 38, pars. 106B--1(b)(2),
(b)(3). The trial court in Fitzpatrick declared the Child Shield
Act unconstitutional. On direct appeal, this court determined that
the confrontation clause of the Illinois Constitution (Ill. Const.
1970, art. I, 8) unambiguously guaranteed a criminal defendant
the right to meet a witness face to face. Fitzpatrick, 158 Ill. 2d
at 365. In reaching this holding, the court distinguished the "face
to face" language of the Illinois Constitution's confrontation
clause (Ill. Const. 1970, art. I, 8) from the "right to be
confronted" language contained in the United States
Constitution's confrontation clause (U.S. Const., amend. VI).
Fitzpatrick, 158 Ill. 2d at 367. We found that a witness who is
examined by closed circuit television does not provide the
defendant with the face-to-face confrontation guaranteed by the
plain language of the Illinois Constitution's confrontation clause.
Fitzpatrick, 158 Ill. 2d at 367-68. Accordingly, this court
declared the Child Shield Act to be unconstitutional because it
violated the confrontation clause of the Illinois Constitution.
Fitzpatrick, 158 Ill. 2d 360.
The defendant here contends that the appellate court erred
by failing to apply this court's decision in Fitzpatrick to his
case. Our Fitzpatrick opinion was filed on February 17, 1994,
after the defendant was convicted and while his direct appeal
was pending before the appellate court. We must therefore
determine whether our decision in Fitzpatrick applies
retroactively to the defendant's case.
The standard for applying judicial opinions retroactively
was set forth in People v. Erickson, 117 Ill. 2d 271 (1987). In
Erickson, this court held that judicial opinions announcing new
constitutional rules applicable to criminal cases are retroactive
to all cases pending on direct review at the time the new
constitutional rule is declared. Erickson, 117 Ill. 2d at 288,
citing Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649,
661, 107 S. Ct. 708, 716 (1987). More specifically, retroactivity
is triggered when two factors are present: (1) the case to which
the new rule is to be applied was not final or was pending on
direct review when the rule was declared, and (2) the rule to be
applied retroactively is of constitutional dimension. Erickson,
117 Ill. 2d at 289; see also People v. Gersch, 135 Ill. 2d 384,
393 (1990); People v. Shields, 143 Ill. 2d 435, 442 (1991). Both
of these factors are present in the instant case. The defendant's
case was pending on direct review before the appellate court
when this court rendered its decision in Fitzpatrick. Second, this
court's ruling in Fitzpatrick is clearly a new rule of
constitutional dimension. Although the 1970 Illinois
Constitution's confrontation clause included the language "face
to face," this court in Fitzpatrick first announced that a
defendant was deprived of his right to confrontation when he
was unable to confront witnesses face to face. Thus, pursuant to
the above standard, we hold that the Fitzpatrick decision applies
retroactively to the defendant's case.
Parenthetically, we note that Fitzpatrick should also be
applied retroactively to cases pending on direct appeal given its
determination that the Child Shield Act was unconstitutional. In
People v. Gersch, 135 Ill. 2d 384 (1990), this court addressed
whether a decision finding a statute unconstitutional should be
applied retroactively to a case that was pending on direct
review. We stated: "To hold that a judicial decision that declares
a statute unconstitutional is not retroactive would forever
prevent those injured under the unconstitutional legislative act
from receiving a remedy for the deprivation of a guaranteed
right." Gersch, 135 Ill. 2d at 397. We agree with and adopt this
rationale in the present case.
B. Constitutional Amendment
The State argues that the defendant is not entitled to the
retroactive application of Fitzpatrick because that decision has
"lost all force and effect." In making this argument, the State
points to the following events which arose in response to our
decision in Fitzpatrick.
Shortly after the filing of the Fitzpatrick opinion on
February 17, 1994, the Illinois General Assembly proposed an
amendment to the Illinois Constitution's confrontation clause.
1994 Ill. Laws 3148 (Senate Joint Resolution Constitutional
Amendment 123). The proposed constitutional amendment
deleted the "face to face" language from the confrontation clause
and replaced it with language giving the accused the right "to be
confronted with the witnesses against him or her." 1994 Ill.
Laws 3148 (Senate Joint Resolution Constitutional Amendment
123). The legislative debates surrounding the proposed
constitutional amendment indicate that the amendment was
intended to reverse the effects of the Fitzpatrick decision and to
change the language of the confrontation clause in the Illinois
Constitution to conform with the language of the confrontation
clause in the United States Constitution. 88th Ill. Gen. Assem.,
House Proceedings, April 20, 1994, at 51; 88th Ill. Gen. Assem.,
Senate Proceedings, April 14, 1994, at 101-02; 88th Ill. Gen.
Assem., House Proceedings, November 30, 1994, at 52. On
November 8, 1994, Illinois voters approved the constitutional
amendment, thereby changing the language of section 8 of
article I of the Illinois Constitution. Ill. Const. 1970, art. I, 8,
amended November 8, 1994; Illinois State Board of Elections,
Official Vote Cast at the General Election on November 8,
1994, at vii (1994). The Illinois legislature then repealed the
Child Shield Act invalidated in Fitzpatrick (725 ILCS 5/106B--1
(repealed by Pub. Act 88--674, 5, eff. December 14, 1994))
and reenacted it in reliance on the newly amended constitutional
provision. 1994 Ill. Laws 2666; 88th Ill. Gen. Assem., Senate
Proceedings, December 1, 1994, at 77. The reenacted statute
applies to prosecutions pending on or commenced on or after
December 14, 1994. 725 ILCS 5/106B--5 (West Supp. 1995).
The reenacted Child Shield Act is substantially the same as the
version declared unconstitutional in Fitzpatrick. It allows young
victims of certain listed sexual crimes to testify by closed circuit
television outside the presence of the defendant. 725 ILCS
5/106B--5 (West Supp. 1995). All of these aforementioned
events occurred while the defendant's case was pending on
appeal before the appellate court.
In view of the preceding circumstances, the State insists that
Fitzpatrick has been "legislatively overruled or superseded,"
such that it is no longer controlling precedent. According to the
State, Fitzpatrick should not be applied retroactively to the
defendant's case because it is an invalid decision given its
reliance on the former language of section 8 of article I. The
State asserts that the appellate court properly utilized the
constitutional amendment and the reenacted Child Shield Act to
cure any error that may have arisen at the defendant's trial.
We cannot agree with the State's position. In essence, the
State is arguing that the constitutional amendment to the Illinois
Constitution's confrontation clause be applied retroactively to
the defendant's case. It is well established, however, that a
constitutional provision or amendment operates prospectively
from its effective date unless its language clearly indicates an
intent to apply the provision or amendment retroactively. See
Shreveport v. Cole, 129 U.S. 36, 43, 32 L. Ed. 589, 591-92, 9 S. Ct. 210, 213 (1889); People ex rel. Kutner v. Cullerton, 58 Ill. 2d 266, 270 (1974), citing City of Chicago v. Rumsey, 87 Ill. 348, 357 (1877); accord State v. Lavazzoli, 434 So. 2d 321, 323
(Fla. 1983); State v. Cousan, 1996 La. Lexis 3233 (La.
November 25, 1996); Succession of Fragala, 680 So. 2d 1345,
1348 (La. App. 1996); People v. Gornbein, 407 Mich. 330, 332,
285 N.W.2d 41, 43 (1979); State ex rel. Moore v. Molpus, 578 So. 2d 624, 643 (Miss. 1991); Kayden Industries, Inc. v.
Murphy, 34 Wis. 2d 718, 731, 150 N.W.2d 447, 453 (1967); 16
C.J.S. Constitutional Law 36 (1984); 16 Am. Jur. 2d
Constitutional Law 65 (1979). This principle recognizes that a
constitutional amendment may have a retroactive effect only "if
such an intention is clearly expressed in the constitution." See
Cullerton, 58 Ill. 2d at 270. No such intent was expressed in the
constitutional amendment at issue here.
Section 8 of article I, as amended in 1994, states that the
accused in criminal prosecutions "shall have the right *** to be
confronted with the witnesses against him or her." Ill. Const.
1970, art. I, 8, amended November 8, 1994. This language
does not clearly indicate an intention to apply retroactively the
amended constitutional right to confrontation. Moreover, the
schedule contained in the 1994 constitutional amendment
proposed by the General Assembly does not indicate that a
retroactive application was intended. The schedule contained in
that resolution stated as follows: "This Constitutional
Amendment takes effect upon approval by the electors of this
State," which date was November 8, 1994. 1994 Ill. Laws 3148
(Senate Joint Resolution Constitutional Amendment 123). As
further support for our finding that there was no intent to apply
the constitutional amendment retroactively, we look to the form
of ballot used in the November 1994 election to explain the
proposed amendment to the voters. The form of ballot read:
"This proposed amendment changes Article I, Section 8 of the
Illinois Constitution regarding the rights of the accused in a
criminal prosecution by replacing language giving the accused
the right `to meet the witnesses face to face' with language
giving the accused the right ` "to be confronted with the
witnesses against him or her." ' " 1994 Ill. Laws 3096 (Senate
Joint Resolution 181); George H. Ryan, Secretary of State, State
of Illinois, Proposed Amendments to the Constitution of Illinois
That Will Be Submitted to the Voters November 8, 1994, at 5
(1994). The express language on the ballot thus did not express
an intent to apply the constitutional amendment retroactively.
Based on our examination of the foregoing provisions, we find
no indication that the constitutional amendment which altered
the scope of the right to confrontation was intended to apply
retroactively. We therefore hold that this constitutional
amendment has prospective application only and cannot be
applied retroactively to the defendant's case. Accordingly, the
defendant, who had a right to confrontation at trial and whose
trial had been completed, cannot be deprived retroactively of his
right to a "face to face" confrontation.
We further note that fundamental fairness and justice dictate
that the constitutional amendment to section 8 of article I not
apply retroactively to the defendant's case. At the time of the
defendant's trial, the Illinois Constitution conferred on him an
express and unqualified right to "face to face" confrontation.
When we held the Child Shield Act unconstitutional in
Fitzpatrick, we declared that the procedure allowed by that
statute violated this constitutional right. Because the procedure
found to be unconstitutional in Fitzpatrick was also employed
during the defendant's trial, his then-existing constitutional right
was violated. The State argues that the subsequent amendment
to the constitution can be applied retroactively to cure this error.
The fortuity of circumstances on which the State now relies,
however, cannot validate retroactively what was undeniably an
unconstitutional trial procedure when it occurred. The defendant
is entitled to a trial which vindicates his constitutional right to
"face to face" confrontation. We therefore find that retroactive
application of this constitutional amendment to the defendant's
case would result in manifest injustice because the defendant
would be deprived of a fundamental constitutional right which
was guaranteed to him at the time of his trial.
Based on the foregoing analysis, we hold that the
amendment to section 8 of article I of the Illinois Constitution,
effective November 8, 1994, and the subsequently reenacted
Child Shield Act do not apply retroactively to the defendant's
case. Consequently, at the time of his trial, the defendant was
entitled to meet witnesses face to face. Fitzpatrick, 158 Ill. 2d 360. The defendant was deprived of that constitutional right
when the victim, E.C., testified by closed circuit television.
Moreover, we conclude that the appellate court erred in applying
the constitutional amendment and reenacted Child Shield Act
retroactively to cure the error of admitting E.C.'s testimony via
closed circuit television.
II. Harmless Error
Having determined that the defendant was deprived in his
trial of his constitutional right to "face to face" confrontation,
we next address whether that error was harmless. The appellate
court disposed of this case on the basis that the constitutional
error committed at trial had been rendered harmless by
"subsequent legislative activity." We reject this rationale because
it does not conform to the standard for determining whether a
constitutional error is harmless. A constitutional error can be
deemed harmless error only if it is proven beyond a reasonable
doubt that the error did not contribute to the defendant's
conviction. People v. Childs, 159 Ill. 2d 217, 228 (1994), citing
Chapman v. California, 386 U.S. 18, 23-24, 17 L. Ed. 2d 705,
710-11, 87 S. Ct. 824, 827-28 (1967); Shields, 143 Ill. 2d at
446; People v. Coleman, 129 Ill. 2d 321, 341 (1989); People v.
Johnson, 116 Ill. 2d 13, 28 (1987). Essentially, then, the issue
is whether the defendant would have been convicted regardless
of the error.
With this principle in mind, we examine whether E.C.'s
testimony via closed circuit television contributed to the
defendant's conviction. The State contends that the confrontation
error is harmless because even in the absence of E.C.'s
testimony, the defendant would have been convicted based on
independent credible evidence of the defendant's guilt presented
at trial. We disagree. First, we point out that in announcing the
guilty finding, the trial judge, who acted as the finder of fact,
stated that the "bottom line" in finding the defendant guilty was
that he believed E.C.'s testimony. More specifically, the trial
judge stated:
"The only direct evidence in this case as to the offense
charged comes from [E.C.], the victim, a five year old
female child. Most of the evidence that has been
presented to me in this case has to do with whether or
not I should believe what [E.C.] has told me, and that
is really the bottom line in this case. *** I believe
[E.C.], and that is the bottom line."
These comments demonstrate that the trial judge relied heavily
on E.C.'s testimony in finding the defendant guilty.
The record also reveals that E.C. likely would not have
testified without the use of closed circuit television. The State
was unsuccessful on two occasions when it attempted to elicit
testimony from E.C. in the defendant's presence. Given the
importance of E.C.'s testimony and the fact that the trial judge
placed great weight on it in reaching his decision to convict the
defendant, we cannot conclude beyond a reasonable doubt that
the defendant would have been convicted without E.C.'s
testimony. We therefore find that the error in admitting E.C.'s
testimony by closed circuit television contributed to the trial
judge's decision to convict the defendant. The error therefore
was not harmless beyond a reasonable doubt. Accordingly, we
hold that the defendant's conviction must be reversed and the
cause remanded to the circuit court for a new trial.
III. Remand
We must next consider what law will apply on remand. On
remand, the defendant claims that fundamental fairness requires
that he retain his right to face-to-face confrontation as it existed
at his first trial. The defendant relies on People v. Reddick, 123 Ill. 2d 184 (1988), in support of his argument. In Reddick, the
defendant was granted a new trial because the jury received
improper instructions regarding the burden of proof. In
addressing additional trial errors, this court considered the
defendant's claim that the trial court erred in preventing the
defendant from impeaching a prosecution witness with evidence
of a prior felony conviction. The trial court excluded the
impeachment evidence pursuant to People v. Montgomery, 47 Ill. 2d 510, 516 (1971), which held that a witness cannot be
impeached by a prior conviction if more than 10 years have
elapsed since the date of the witness' conviction or the date of
the witness' release from confinement, whichever is later.
Reddick, 123 Ill. 2d at 202-03. The trial court in Reddick,
however, miscalculated whether 10 years had elapsed and thus
erroneously applied the Montgomery rule to exclude the prior
conviction. Reddick, 123 Ill. 2d at 202. This court determined
that the defendant's initial trial was held within 10 years of the
prosecution witness' release from prison for the conviction.
Reddick, 123 Ill. 2d at 203. Consequently, the Montgomery rule
did not bar admission of the prior conviction for impeachment
purposes at that trial. Nevertheless, this court noted that, under
this rule, on retrial the prosecution witness' prior conviction will
not be admissible for impeachment because the 10-year limit set
forth in Montgomery will have lapsed. As a result, this court
refused to apply the 10-year provision of the Montgomery rule
on remand to exclude the evidence. We held that fundamental
fairness required that the defendant be allowed to impeach the
witness in his new trial in the same manner that the defendant
should have been permitted to impeach him at the initial trial.
Reddick, 123 Ill. 2d at 203.
Here, the defendant argues that a similar principle of
fairness dictates that his retrial be conducted pursuant to the
face-to-face confrontation clause as it should have been applied
at his first trial. We agree and hold that fundamental fairness
requires that the defendant be allowed to confront witnesses face
to face at his retrial. This result seems particularly just given
that the defendant was deprived of a fundamental constitutional
guarantee at his first trial.
As a final matter, we note that double jeopardy principles
do not bar the State from proceeding against the defendant in a
new trial. After thoroughly reviewing the evidence, we find it to
have been sufficient to support the defendant's conviction. As
such, there is no impediment to a new trial. See People v. Hope,
116 Ill. 2d 265, 279 (1986); People v. Taylor, 76 Ill. 2d 289,
309 (1979). We, however, in no manner imply that we have
made a finding as to the defendant's guilt that would be binding
on retrial. People v. McDonald, 125 Ill. 2d 182, 202 (1988).
CONCLUSION
For the reasons stated above, we reverse the judgments of
the appellate and circuit courts. We therefore reverse the
defendant's conviction and remand for a new trial consistent
with the views expressed in this opinion.
Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded with directions.
of the opinion to request a rehearing. Also, opinions are subject
to modification, correction or withdrawal at anytime prior to
issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 79750--Agenda 7--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
CHARLES M. DEAN, Appellant.
Opinion filed February 20, 1997.
JUSTICE BILANDIC delivered the opinion of the court:
The defendant was charged by information in Warren
County with committing aggravated criminal sexual assault (720
ILCS 5/12--14(b)(1) (West 1992)) of his stepdaughter, E.C.,
between February 1, 1992, and October 6, 1992. The charge
specifically alleged that the defendant, who was 17 years of age
or older, knowingly committed an act of sexual penetration upon
E.C., who was under 13 years of age when the act was
committed, by placing his fingers in E.C.'s vagina. After
waiving his right to a trial by jury, the defendant was convicted
at a bench trial of aggravated criminal sexual assault and
sentenced to 30 years' imprisonment. The appellate court, with
one justice dissenting, affirmed the defendant's conviction and
sentence. No. 3--93--0659 (unpublished order under Supreme
Court Rule 23). We allowed the defendant's petition for leave
to appeal (155 Ill. 2d R. 315), and now reverse the judgments
of the appellate and circuit courts and remand for a new trial.
FACTS
Prior to trial, the trial court conducted an in camera
competency hearing of the five-year-old victim, E.C. The court
determined that E.C. was competent to testify. The State began
its case by calling E.C. as its first witness. After a few
background questions, E.C. became upset and started crying
when asked about the defendant. E.C. then refused to respond
to the State's questions. The court found that E.C. was not
competent to testify at that time; however, the court reserved its
ruling on the State's motion to obtain E.C.'s testimony by
closed circuit television.
The State proceeded with its case by calling Sherry Dean,
E.C.'s mother. Sherry testified that between July and November
of 1992 she lived in a second-floor apartment of a three-story
building at 509 East Broadway in Monmouth, Illinois, with the
defendant and her four children. She married the defendant on
October 10, 1992.
Rebecca Harrell, a mental health therapist at the Spoon
River Mental Health Center in Monmouth, next testified for the
State. Harrell testified that she first interviewed E.C. on
November 3, 1992. E.C. was referred by the Illinois Department
of Children and Family Services (DCFS) for assessment and
possible treatment for alleged sexual abuse. According to
Harrell, E.C. told her that she was living with her grandmother
because "nasty Charlie hurted [sic] me." During their next
session, E.C. stated to Harrell that her mother told her not to tell
anyone what the defendant had done to her. During subsequent
sessions, E.C. demonstrated her ability to identify body parts.
E.C., through the use of an anatomically correct female doll,
showed Harrell how the defendant had put his hand on her "pee
pee" and stuck two fingers inside her and wiggled them around
so that it hurt. Harrell also testified that E.C. indicated to her
that the incident occurred on the bed in her mother's bedroom,
and that after the defendant touched her genital area she tried to
stick him with a fork. According to Harrell, E.C. did not make
any allegations of sexual abuse against anyone else other than
the defendant.
The next witness called by the State was Cherry
Richardson, an investigator for DCFS. Richardson testified that
she and police lieutenant David Brooks interviewed E.C. in
response to an October 22, 1992, hotline report of possible
abuse. During a series of interviews, E.C. told her that the
defendant had touched her in her "private area." E.C.
demonstrated with an anatomically correct female doll how the
defendant had put his fingers into her vagina and moved them
around. Again, E.C. stated that it "hurted." Richardson next
testified that, on January 8, 1993, she and Lieutenant Brooks
took E.C. for a drive to determine where the assault had taken
place. When they approached the vicinity of 509 East
Broadway, the location of the apartment building where E.C.
used to live with her mother and the defendant, E.C. indicated
that the incident did not happen upstairs or downstairs, but in
the middle. When asked if the abuse had occurred at the
apartment on Broadway, E.C. indicated that it occurred at
"Jimbo's." E.C. referred to her biological father, James C., as
"Jimbo." Richardson and Lieutenant Brooks took E.C. to James
C.'s apartment, located at 405 South Main Street. Once inside
the apartment, E.C. pointed to a rollaway bed in the corner of
James C.'s bedroom, which she identified as "mommie's."
James C. later testified that the bed had been at Sherry's
apartment on Broadway until the children were removed from
her care sometime in November of 1992.
Also testifying as a witness for the State was Dr. Sun Park,
a pediatrician at Community Memorial Hospital in Monmouth.
On October 27, 1992, Dr. Park examined E.C. Prior to the
examination, E.C. told Dr. Park that the defendant had hurt her.
After an examination of E.C., Dr. Park testified that E.C.'s
genitalia displayed a widened vestibule and was missing a
membrane usually found present in young girls. In Dr. Park's
opinion, E.C.'s condition could have been caused by forcible
digital penetration, and had probably occurred at least a few
days prior to the examination.
At the close of its case in chief, the State recalled E.C. as
a witness. After responding to some preliminary questions, E.C.
was asked if anything happened between her and the defendant.
E.C. refused to respond in the defendant's presence. The State
then renewed its motion to take E.C.'s testimony by closed
circuit television. The court granted the State's motion over the
defendant's objection.
At the closed circuit television proceeding, E.C. testified
that she currently lives with her father, "Jimbo." However, she
used to live with her mother, her siblings and the defendant.
According to E.C., while she lived at her mother's house, the
defendant came into her bedroom and put his fingers into her
"private" and moved them around and hurt her. E.C. stated that
she told both of her parents that the defendant touched her. E.C.
also testified on cross-examination that the defendant had cut off
the heads of puppies with a knife. She saw blood on the counter
and the floor.
After the State concluded its case in chief, the defense
called Sherry Dean, E.C.'s mother. Sherry testified that the
puppy incident, referred to by E.C., had occurred in Iowa in
1991, while she was married to her former husband, John
Holden. She explained that she left the home after an argument.
When she and the children returned, they found that Holden had
hung some puppies in a tree, cut them open, and placed them on
the kitchen counter. There was blood all over the kitchen.
Sherry testified that she and the defendant moved into the
apartment on Broadway in May of 1992. Sherry denied that E.C.
told her that the defendant had hurt or molested her. James C.
also testified that E.C. never told him about being sexually
abused or hurt by the defendant.
The defendant had waived his right to a jury trial. After
considering the evidence, the trial court found the defendant
guilty as charged. The trial court subsequently sentenced the
defendant to 30 years' imprisonment.
The defendant appealed his conviction and sentence, which
a majority of the appellate court affirmed. The majority rejected
the defendant's argument that he is entitled to a new trial
because E.C.'s testimony on closed circuit television was
admitted pursuant to the Child Shield Act (725 ILCS 5/106B--1
(West 1992)), which was subsequently declared unconstitutional
in People v. Fitzpatrick, 158 Ill. 2d 360 (1994). The majority
recognized that the Child Shield Act was found to be
unconstitutional in Fitzpatrick because it violated a defendant's
state constitutional right to meet witnesses "face to face."
Nevertheless, the majority noted that during the pendency of the
defendant's appeal, the Illinois Constitution was amended and
the Child Shield Act reenacted. Consequently, the majority
determined that the reenacted Child Shield Act would allow for
the admission of E.C.'s testimony by closed circuit television on
retrial. The majority then reasoned that any error in admitting
E.C.'s testimony in the first trial had been "cured by the
subsequent legislative activity and rendered harmless beyond a
reasonable doubt in this case."
A dissenting justice disagreed with the majority's
conclusion that the subsequent amendment to the confrontation
clause of the Illinois Constitution and reenactment of the Child
Shield Act cured the error committed at the defendant's trial. He
argued that retroactively applying the law as it now exists to the
defendant's case violates the state and federal constitutional
prohibitions against ex post facto laws (Ill. Const. 1970, art. I,
16; U.S. Const., art. I, 9, 10).
ANALYSIS
I. Right to Confrontation
The defendant argues that he was deprived at trial of his
constitutional right to a face-to-face confrontation with the
victim, E.C., whom the trial court permitted to testify outside
the defendant's presence by closed circuit television pursuant to
the Child Shield Act (725 ILCS 5/106B--1 (West 1992)). The
defendant contends that at the time he allegedly committed the
offense, and at the time of his trial, section 8 of article I of the
Illinois Constitution (Ill. Const. 1970, art. I, 8) expressly
guaranteed a criminal defendant the right to confront witnesses
face to face. In support of his argument, the defendant relies on
this court's decision in People v. Fitzpatrick, 158 Ill. 2d 360
(1994). According to the defendant, the appellate court erred by
failing to apply the Fitzpatrick decision to his case. The
defendant therefore requests that we reverse the decision of the
appellate court, reverse his conviction and grant him a new trial.
A. People v. Fitzpatrick
The first issue before this court is whether our decision in
Fitzpatrick should be applied to the defendant's case. In
Fitzpatrick, the defendant was charged with seven counts of
aggravated criminal sexual assault against four minors. The
State moved pursuant to the Child Shield Act (Ill. Rev. Stat.
1991, ch. 38, par. 106B--1) for an order allowing the four minor
victims to testify outside of the defendant's presence by closed
circuit television. The Child Shield Act allowed child victims of
certain enumerated sexual crimes to testify outside the
courtroom by closed circuit television. Ill. Rev. Stat. 1991, ch.
38, par. 106B--1(a)(1). Pursuant to the Act, a defendant
remained in the courtroom but was able to communicate with
his attorney, who was in the room where the child was
testifying. Ill. Rev. Stat. 1991, ch. 38, pars. 106B--1(b)(2),
(b)(3). The trial court in Fitzpatrick declared the Child Shield
Act unconstitutional. On direct appeal, this court determined that
the confrontation clause of the Illinois Constitution (Ill. Const.
1970, art. I, 8) unambiguously guaranteed a criminal defendant
the right to meet a witness face to face. Fitzpatrick, 158 Ill. 2d
at 365. In reaching this holding, the court distinguished the "face
to face" language of the Illinois Constitution's confrontation
clause (Ill. Const. 1970, art. I, 8) from the "right to be
confronted" language contained in the United States
Constitution's confrontation clause (U.S. Const., amend. VI).
Fitzpatrick, 158 Ill. 2d at 367. We found that a witness who is
examined by closed circuit television does not provide the
defendant with the face-to-face confrontation guaranteed by the
plain language of the Illinois Constitution's confrontation clause.
Fitzpatrick, 158 Ill. 2d at 367-68. Accordingly, this court
declared the Child Shield Act to be unconstitutional because it
violated the confrontation clause of the Illinois Constitution.
Fitzpatrick, 158 Ill. 2d 360.
The defendant here contends that the appellate court erred
by failing to apply this court's decision in Fitzpatrick to his
case. Our Fitzpatrick opinion was filed on February 17, 1994,
after the defendant was convicted and while his direct appeal
was pending before the appellate court. We must therefore
determine whether our decision in Fitzpatrick applies
retroactively to the defendant's case.
The standard for applying judicial opinions retroactively
was set forth in People v. Erickson, 117 Ill. 2d 271 (1987). In
Erickson, this court held that judicial opinions announcing new
constitutional rules applicable to criminal cases are retroactive
to all cases pending on direct review at the time the new
constitutional rule is declared. Erickson, 117 Ill. 2d at 288,
citing Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649,
661, 107 S. Ct. 708, 716 (1987). More specifically, retroactivity
is triggered when two factors are present: (1) the case to which
the new rule is to be applied was not final or was pending on
direct review when the rule was declared, and (2) the rule to be
applied retroactively is of constitutional dimension. Erickson,
117 Ill. 2d at 289; see also People v. Gersch, 135 Ill. 2d 384,
393 (1990); People v. Shields, 143 Ill. 2d 435, 442 (1991). Both
of these factors are present in the instant case. The defendant's
case was pending on direct review before the appellate court
when this court rendered its decision in Fitzpatrick. Second, this
court's ruling in Fitzpatrick is clearly a new rule of
constitutional dimension. Although the 1970 Illinois
Constitution's confrontation clause included the language "face
to face," this court in Fitzpatrick first announced that a
defendant was deprived of his right to confrontation when he
was unable to confront witnesses face to face. Thus, pursuant to
the above standard, we hold that the Fitzpatrick decision applies
retroactively to the defendant's case.
Parenthetically, we note that Fitzpatrick should also be
applied retroactively to cases pending on direct appeal given its
determination that the Child Shield Act was unconstitutional. In
People v. Gersch, 135 Ill. 2d 384 (1990), this court addressed
whether a decision finding a statute unconstitutional should be
applied retroactively to a case that was pending on direct
review. We stated: "To hold that a judicial decision that declares
a statute unconstitutional is not retroactive would forever
prevent those injured under the unconstitutional legislative act
from receiving a remedy for the deprivation of a guaranteed
right." Gersch, 135 Ill. 2d at 397. We agree with and adopt this
rationale in the present case.
B. Constitutional Amendment
The State argues that the defendant is not entitled to the
retroactive application of Fitzpatrick because that decision has
"lost all force and effect." In making this argument, the State
points to the following events which arose in response to our
decision in Fitzpatrick.
Shortly after the filing of the Fitzpatrick opinion on
February 17, 1994, the Illinois General Assembly proposed an
amendment to the Illinois Constitution's confrontation clause.
1994 Ill. Laws 3148 (Senate Joint Resolution Constitutional
Amendment 123). The proposed constitutional amendment
deleted the "face to face" language from the confrontation clause
and replaced it with language giving the accused the right "to be
confronted with the witnesses against him or her." 1994 Ill.
Laws 3148 (Senate Joint Resolution Constitutional Amendment
123). The legislative debates surrounding the proposed
constitutional amendment indicate that the amendment was
intended to reverse the effects of the Fitzpatrick decision and to
change the language of the confrontation clause in the Illinois
Constitution to conform with the language of the confrontation
clause in the United States Constitution. 88th Ill. Gen. Assem.,
House Proceedings, April 20, 1994, at 51; 88th Ill. Gen. Assem.,
Senate Proceedings, April 14, 1994, at 101-02; 88th Ill. Gen.
Assem., House Proceedings, November 30, 1994, at 52. On
November 8, 1994, Illinois voters approved the constitutional
amendment, thereby changing the language of section 8 of
article I of the Illinois Constitution. Ill. Const. 1970, art. I, 8,
amended November 8, 1994; Illinois State Board of Elections,
Official Vote Cast at the General Election on November 8,
1994, at vii (1994). The Illinois legislature then repealed the
Child Shield Act invalidated in Fitzpatrick (725 ILCS 5/106B--1
(repealed by Pub. Act 88--674, 5, eff. December 14, 1994))
and reenacted it in reliance on the newly amended constitutional
provision. 1994 Ill. Laws 2666; 88th Ill. Gen. Assem., Senate
Proceedings, December 1, 1994, at 77. The reenacted statute
applies to prosecutions pending on or commenced on or after
December 14, 1994. 725 ILCS 5/106B--5 (West Supp. 1995).
The reenacted Child Shield Act is substantially the same as the
version declared unconstitutional in Fitzpatrick. It allows young
victims of certain listed sexual crimes to testify by closed circuit
television outside the presence of the defendant. 725 ILCS
5/106B--5 (West Supp. 1995). All of these aforementioned
events occurred while the defendant's case was pending on
appeal before the appellate court.
In view of the preceding circumstances, the State insists that
Fitzpatrick has been "legislatively overruled or superseded,"
such that it is no longer controlling precedent. According to the
State, Fitzpatrick should not be applied retroactively to the
defendant's case because it is an invalid decision given its
reliance on the former language of section 8 of article I. The
State asserts that the appellate court properly utilized the
constitutional amendment and the reenacted Child Shield Act to
cure any error that may have arisen at the defendant's trial.
We cannot agree with the State's position. In essence, the
State is arguing that the constitutional amendment to the Illinois
Constitution's confrontation clause be applied retroactively to
the defendant's case. It is well established, however, that a
constitutional provision or amendment operates prospectively
from its effective date unless its language clearly indicates an
intent to apply the provision or amendment retroactively. See
Shreveport v. Cole, 129 U.S. 36, 43, 32 L. Ed. 589, 591-92, 9 S. Ct. 210, 213 (1889); People ex rel. Kutner v. Cullerton, 58 Ill. 2d 266, 270 (1974), citing City of Chicago v. Rumsey, 87 Ill. 348, 357 (1877); accord State v. Lavazzoli, 434 So. 2d 321, 323
(Fla. 1983); State v. Cousan, 1996 La. Lexis 3233 (La.
November 25, 1996); Succession of Fragala, 680 So. 2d 1345,
1348 (La. App. 1996); People v. Gornbein, 407 Mich. 330, 332,
285 N.W.2d 41, 43 (1979); State ex rel. Moore v. Molpus, 578 So. 2d 624, 643 (Miss. 1991); Kayden Industries, Inc. v.
Murphy, 34 Wis. 2d 718, 731, 150 N.W.2d 447, 453 (1967); 16
C.J.S. Constitutional Law 36 (1984); 16 Am. Jur. 2d
Constitutional Law 65 (1979). This principle recognizes that a
constitutional amendment may have a retroactive effect only "if
such an intention is clearly expressed in the constitution." See
Cullerton, 58 Ill. 2d at 270. No such intent was expressed in the
constitutional amendment at issue here.
Section 8 of article I, as amended in 1994, states that the
accused in criminal prosecutions "shall have the right *** to be
confronted with the witnesses against him or her." Ill. Const.
1970, art. I, 8, amended November 8, 1994. This language
does not clearly indicate an intention to apply retroactively the
amended constitutional right to confrontation. Moreover, the
schedule contained in the 1994 constitutional amendment
proposed by the General Assembly does not indicate that a
retroactive application was intended. The schedule contained in
that resolution stated as follows: "This Constitutional
Amendment takes effect upon approval by the electors of this
State," which date was November 8, 1994. 1994 Ill. Laws 3148
(Senate Joint Resolution Constitutional Amendment 123). As
further support for our finding that there was no intent to apply
the constitutional amendment retroactively, we look to the form
of ballot used in the November 1994 election to explain the
proposed amendment to the voters. The form of ballot read:
"This proposed amendment changes Article I, Section 8 of the
Illinois Constitution regarding the rights of the accused in a
criminal prosecution by replacing language giving the accused
the right `to meet the witnesses face to face' with language
giving the accused the right ` "to be confronted with the
witnesses against him or her." ' " 1994 Ill. Laws 3096 (Senate
Joint Resolution 181); George H. Ryan, Secretary of State, State
of Illinois, Proposed Amendments to the Constitution of Illinois
That Will Be Submitted to the Voters November 8, 1994, at 5
(1994). The express language on the ballot thus did not express
an intent to apply the constitutional amendment retroactively.
Based on our examination of the foregoing provisions, we find
no indication that the constitutional amendment which altered
the scope of the right to confrontation was intended to apply
retroactively. We therefore hold that this constitutional
amendment has prospective application only and cannot be
applied retroactively to the defendant's case. Accordingly, the
defendant, who had a right to confrontation at trial and whose
trial had been completed, cannot be deprived retroactively of his
right to a "face to face" confrontation.
We further note that fundamental fairness and justice dictate
that the constitutional amendment to section 8 of article I not
apply retroactively to the defendant's case. At the time of the
defendant's trial, the Illinois Constitution conferred on him an
express and unqualified right to "face to face" confrontation.
When we held the Child Shield Act unconstitutional in
Fitzpatrick, we declared that the procedure allowed by that
statute violated this constitutional right. Because the procedure
found to be unconstitutional in Fitzpatrick was also employed
during the defendant's trial, his then-existing constitutional right
was violated. The State argues that the subsequent amendment
to the constitution can be applied retroactively to cure this error.
The fortuity of circumstances on which the State now relies,
however, cannot validate retroactively what was undeniably an
unconstitutional trial procedure when it occurred. The defendant
is entitled to a trial which vindicates his constitutional right to
"face to face" confrontation. We therefore find that retroactive
application of this constitutional amendment to the defendant's
case would result in manifest injustice because the defendant
would be deprived of a fundamental constitutional right which
was guaranteed to him at the time of his trial.
Based on the foregoing analysis, we hold that the
amendment to section 8 of article I of the Illinois Constitution,
effective November 8, 1994, and the subsequently reenacted
Child Shield Act do not apply retroactively to the defendant's
case. Consequently, at the time of his trial, the defendant was
entitled to meet witnesses face to face. Fitzpatrick, 158 Ill. 2d 360. The defendant was deprived of that constitutional right
when the victim, E.C., testified by closed circuit television.
Moreover, we conclude that the appellate court erred in applying
the constitutional amendment and reenacted Child Shield Act
retroactively to cure the error of admitting E.C.'s testimony via
closed circuit television.
II. Harmless Error
Having determined that the defendant was deprived in his
trial of his constitutional right to "face to face" confrontation,
we next address whether that error was harmless. The appellate
court disposed of this case on the basis that the constitutional
error committed at trial had been rendered harmless by
"subsequent legislative activity." We reject this rationale because
it does not conform to the standard for determining whether a
constitutional error is harmless. A constitutional error can be
deemed harmless error only if it is proven beyond a reasonable
doubt that the error did not contribute to the defendant's
conviction. People v. Childs, 159 Ill. 2d 217, 228 (1994), citing
Chapman v. California, 386 U.S. 18, 23-24, 17 L. Ed. 2d 705,
710-11, 87 S. Ct. 824, 827-28 (1967); Shields, 143 Ill. 2d at
446; People v. Coleman, 129 Ill. 2d 321, 341 (1989); People v.
Johnson, 116 Ill. 2d 13, 28 (1987). Essentially, then, the issue
is whether the defendant would have been convicted regardless
of the error.
With this principle in mind, we examine whether E.C.'s
testimony via closed circuit television contributed to the
defendant's conviction. The State contends that the confrontation
error is harmless because even in the absence of E.C.'s
testimony, the defendant would have been convicted based on
independent credible evidence of the defendant's guilt presented
at trial. We disagree. First, we point out that in announcing the
guilty finding, the trial judge, who acted as the finder of fact,
stated that the "bottom line" in finding the defendant guilty was
that he believed E.C.'s testimony. More specifically, the trial
judge stated:
"The only direct evidence in this case as to the offense
charged comes from [E.C.], the victim, a five year old
female child. Most of the evidence that has been
presented to me in this case has to do with whether or
not I should believe what [E.C.] has told me, and that
is really the bottom line in this case. *** I believe
[E.C.], and that is the bottom line."
These comments demonstrate that the trial judge relied heavily
on E.C.'s testimony in finding the defendant guilty.
The record also reveals that E.C. likely would not have
testified without the use of closed circuit television. The State
was unsuccessful on two occasions when it attempted to elicit
testimony from E.C. in the defendant's presence. Given the
importance of E.C.'s testimony and the fact that the trial judge
placed great weight on it in reaching his decision to convict the
defendant, we cannot conclude beyond a reasonable doubt that
the defendant would have been convicted without E.C.'s
testimony. We therefore find that the error in admitting E.C.'s
testimony by closed circuit television contributed to the trial
judge's decision to convict the defendant. The error therefore
was not harmless beyond a reasonable doubt. Accordingly, we
hold that the defendant's conviction must be reversed and the
cause remanded to the circuit court for a new trial.
III. Remand
We must next consider what law will apply on remand. On
remand, the defendant claims that fundamental fairness requires
that he retain his right to face-to-face confrontation as it existed
at his first trial. The defendant relies on People v. Reddick, 123 Ill. 2d 184 (1988), in support of his argument. In Reddick, the
defendant was granted a new trial because the jury received
improper instructions regarding the burden of proof. In
addressing additional trial errors, this court considered the
defendant's claim that the trial court erred in preventing the
defendant from impeaching a prosecution witness with evidence
of a prior felony conviction. The trial court excluded the
impeachment evidence pursuant to People v. Montgomery, 47 Ill. 2d 510, 516 (1971), which held that a witness cannot be
impeached by a prior conviction if more than 10 years have
elapsed since the date of the witness' conviction or the date of
the witness' release from confinement, whichever is later.
Reddick, 123 Ill. 2d at 202-03. The trial court in Reddick,
however, miscalculated whether 10 years had elapsed and thus
erroneously applied the Montgomery rule to exclude the prior
conviction. Reddick, 123 Ill. 2d at 202. This court determined
that the defendant's initial trial was held within 10 years of the
prosecution witness' release from prison for the conviction.
Reddick, 123 Ill. 2d at 203. Consequently, the Montgomery rule
did not bar admission of the prior conviction for impeachment
purposes at that trial. Nevertheless, this court noted that, under
this rule, on retrial the prosecution witness' prior conviction will
not be admissible for impeachment because the 10-year limit set
forth in Montgomery will have lapsed. As a result, this court
refused to apply the 10-year provision of the Montgomery rule
on remand to exclude the evidence. We held that fundamental
fairness required that the defendant be allowed to impeach the
witness in his new trial in the same manner that the defendant
should have been permitted to impeach him at the initial trial.
Reddick, 123 Ill. 2d at 203.
Here, the defendant argues that a similar principle of
fairness dictates that his retrial be conducted pursuant to the
face-to-face confrontation clause as it should have been applied
at his first trial. We agree and hold that fundamental fairness
requires that the defendant be allowed to confront witnesses face
to face at his retrial. This result seems particularly just given
that the defendant was deprived of a fundamental constitutional
guarantee at his first trial.
As a final matter, we note that double jeopardy principles
do not bar the State from proceeding against the defendant in a
new trial. After thoroughly reviewing the evidence, we find it to
have been sufficient to support the defendant's conviction. As
such, there is no impediment to a new trial. See People v. Hope,
116 Ill. 2d 265, 279 (1986); People v. Taylor, 76 Ill. 2d 289,
309 (1979). We, however, in no manner imply that we have
made a finding as to the defendant's guilt that would be binding
on retrial. People v. McDonald, 125 Ill. 2d 182, 202 (1988).
CONCLUSION
For the reasons stated above, we reverse the judgments of
the appellate and circuit courts. We therefore reverse the
defendant's conviction and remand for a new trial consistent
with the views expressed in this opinion.
Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded with directions.
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