Butt In The Box Rule Means Your Available For Cross Examination

People v. Smith, 2019 IL App (3d) 160631 (March). Episode 619 (Duration 14:06)

Kid is available for cross even though they don't remember the actual allegation of sexual abuse.

Gist

Defendant was charged with predatory criminal sexual assault of a child (720 ILCS 5/11- 1.40(a)(1)) in that he placed his penis in the mouth of J.H.

Charges

The information alleged that defendant was 17 years of age or older at the time of the offense and J.H. was under 13 years of age. The State filed a motion for a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10). 

The court found defendant guilty of predatory criminal sexual assault of a child and aggravated kidnapping.

115-10 Statement

The State sought a ruling that J.H.’s recorded interview at the CAC would be admissible if J.H. testified and was subject to cross-examination. After a hearing, the court ruled that the recording of the interview would be admitted into evidence as an exception to the hearsay rule pursuant to section 115-10 of the Code.

Facts

7 year old female victim was at an auction with her 8 year old brother and grandpa.

A man took her into a camper and forced her to undress and put her mouth on his penis. Grandpa found her in the camper and chased the man. He was caught.

The child described the even in a recorded interview.

On The Stand

On the stand she testified to the events of the day including parts of the auction.

Then she said could not remember what happened inside the camper. During cross-examination, defense counsel asked J.H.

• questions about watching the recording of the interview previously,
• whether she had discussed the case with anyone,
• what defendant was wearing at the time of the incident, and
• whether J.H. saw defendant getting in trouble with his mother after the incident.

Defense counsel did not ask any questions about the incident itself.

J.H. answered all of defense counsel’s questions.

Independent Witnesses

Four witnesses testified that they were at the auction on the day of the incident.

They all saw a man running and heard another man yell to stop him. They all later identified defendant as the man they saw running.   

Sentence

The court sentenced defendant to natural life imprisonment for predatory criminal sexual assault of a child, which was mandatory based on defendant’s prior conviction for aggravated criminal sexual assault. The court sentenced defendant to 20 years’ imprisonment for aggravated kidnapping, to be served consecutively with his sentence for predatory criminal sexual assault of a child.

Issue

Defendant argues that his right to confront his accusers was violated in that the recording of J.H.’s interview at the CAC was admitted into evidence but J.H. was unavailable for crossexamination.

Specifically, defendant contends that J.H. became unavailable as a witness when she testified at trial that she could not remember the portion of the incident that comprised the offense of predatory criminal sexual assault of a child.

Confrontation

Both the United States Constitution and the Illinois Constitution guarantee a criminal defendant the right to confront his or her accusers. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8.

“When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements...The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004).

“In general, a witness is considered to be present, available for, or subject to cross-examination when the witness takes the stand, is placed under oath, and willingly answers questions, and the opposing party has an opportunity to cross-examine the witness.” People v. Dabney, 2017 IL App (3d) 140915, ¶ 19. The key inquiry in determining whether the declarant is available for cross-examination is whether the declarant was present for cross-examination and answered all of the questions asked of him or her by defense counsel.

Where the declarant appears for cross-examination, even where the declarant does not testify to the substance of his hearsay statement, its admission is a nonevent under the confrontation clause. People v. Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 66.

Many Illinois cases have held that child victims of sex offenses were available for cross-examination for purposes of the confrontation clause where they testified at trial and answered the questions posed to them during cross-examination even if they were unwilling or unable to testify as to some or all of charged conduct. See Dabney, 2017 IL App (3d) 140915, ¶ 20 (collecting cases).

“A gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination.” People v. Flores, 128 Ill. 2d 66, 88 (1989). “There are no confrontation clause problems merely because the witness’s memory problems preclude him from being cross-examined to the extent the parties would have liked.” People v. Leonard, 391 Ill. App. 3d 926, 934-35 (2009).

What About Rule 804(a)(3)?

Illinois Rule of Evidence 804 is called Hearsay Exceptions; Declarant Unavailable. The rule says,

 “Unavailability as a witness” includes situations in which the declarant–testifies to a lack of memory of the subject matter of the declarant’s statement..." 

Rule 804(a)(3).

Rule 804 concerns certain exceptions to the rule against hearsay that are applicable where a declarant is “unavailable as a witness.” Ill. R. Evid. 804.

To be sure, the definition of unavailability in Rule 804 applies when analyzing the admissibility of hearsay statements pursuant to the exceptions outlined in the rule. However, Rule 804 does not concern availability for cross-examination under the confrontation clause.

Defendant has cited no authority to support the proposition that the definition of unavailability in Rule 804 applies in the context of an alleged confrontation clause violation. We reassert that our supreme court has held that “a gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination” for purposes of the confrontation clause.

People v. Learn Is Out

Defendant further relies on People v. Learn, 396 Ill. App. 3d 891, 899-900 (2009), for the proposition that a victim does not testify for purposes of the confrontation clause when the victim’s testimony is not incriminatory.

As we stated in Dabney, “we respectfully disagree with the conclusion reached by the appellate court in that case and do not believe that it reflects the current state of the law on this issue.” Dabney, 2017 IL App (3d) 140915, ¶ 21; see also In re Brandon P., 2013 IL App (4th) 111022, ¶ 44 (noting that much of the Illinois judiciary had distanced itself from Learn and that no court has cited it approvingly).

This Case

In the instant case, J.H. was available for cross-examination for purposes of the confrontation clause. She took the witness stand and willingly answered the questions posed to her by the prosecutor and defense counsel. She answered every question asked of her during cross-examination.

Although she testified that she could not remember what happened between the time she removed her clothing and the time her grandfather entered the camper, her lack of memory did not render her unavailable for cross-examination.

Holding

Conviction affirmed.

See Also

• Episode 433 - People v. Dabney, 2017 IL App (3d) 140915 (October) (kid was available for cross even though he she didn't describer everything)
• Episode 123 - People v. Burnett, 2015 IL App (1st) 133610 (December . (Witness Can Be Available Under Crawford But Unavailable Under Domestic Violence Statute)
• Episode 450 - In re T.Z., 2017 IL App (4th) 170545 (December) (Judge Gets A Little Too Involved With Kid On The Stand: 7 year old victim is allowed to whisper the damaging testimony to the judge who then repeated the statement for the record.)