People v. Becker , 239 Ill. 2d 215 ( 2010 )

Docket No. 108986.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
ROBERT BECKER, Appellee.
Opinion filed December 2, 2010.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman,
Burke, and Theis concurred in the judgment and opinion.
OPINION
The principal issue presented for review in this appeal is whether
the trial court abused its discretion when it excluded, at trial, the
expert testimony of Dr. Katherine Okla, concerning the
reliability/credibility of hearsay statements made by O.B., the alleged
child victim of a sexual assault. The court had deemed the statements
“reliable”–and thus admissible at trial–following a pretrial hearing
conducted pursuant to the provisions of section 115–10 of the Code
of Criminal Procedure of 1963 (Code) (725 ILCS 5/115–10 (West
2006)). Okla provided extensive testimony at that hearing. A
secondary issue is whether statements of the victim, made five months
after the alleged abuse, were sufficiently reliable to be admissible at
trial.
On appeal below, with one justice dissenting, the appellate court
reversed the judgment of the circuit court and remanded for a new
trial, holding that the trial court had erred in excluding the defense
expert’s testimony on the ground that it would usurp the jury’s role as
the arbiter of the victim’s credibility. Although the appellate court
found it was unnecessary to decide the remaining issues raised by
defendant in light of the foregoing determination, the court
nonetheless addressed “the admission of hearsay statements and the
closed courtroom during [the victim’s] testimony since both issues are
likely to arise again on remand.” No. 3–07–0660 (unpublished order
under Supreme Court Rule 23). The appellate court discerned no
error in closure of the courtroom, nor in admission of most of the
hearsay statements at issue; however, the appellate court majority did
conclude that the trial court abused its discretion in allowing evidence
of the victim’s belated statements of September 19, 2003, and the
court “preclude[d] their admission on remand.” No. 3–07–0660
(unpublished order under Supreme Court Rule 23). Justice Holdridge
dissented from that finding and from the majority’s determination that
Okla’s testimony was improperly excluded at trial. For the reasons
that follow, we reverse the judgment of the appellate court and affirm
the judgment of the circuit court.
BACKGROUND
Defendant, Robert Becker, was charged by indictment in the
circuit court of Peoria County with predatory criminal sexual assault
of a child (720 ILCS 5/12–14.1(a)(1) (West 2002)) and criminal
sexual assault (720 ILCS 5/12–13(a)(3) (West 2002)). The alleged
victim was defendant’s three-year-old daughter, O.B. Defendant was
initially found guilty after a bench trial and was sentenced to 14 years
in prison. On appeal, his convictions were overturned, the appellate
court having found that defendant had received ineffective assistance
of counsel. People v. Becker, No. 3–05–0106 (2005) (unpublished
order under Supreme Court Rule 23).
Prior to retrial, the State sought to introduce four hearsay
statements made by O.B: (1) an April 21, 2003, statement she made
to her mother, Amy Becker, immediately after returning from her
father’s house; (2) a statement made to her mother in May of 2003,
about a “blue microphone”; (3) a July 1, 2003, videotaped interview
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with Detective Michael Eddlemon; and (4) a September 19, 2003,
statement she made to her mother in the presence of her mother’s
friend, Olga Reyes.
The court scheduled a hearing, pursuant to section 115–10 of the
Code (725 ILCS 5/115–10 (West 2006)), to determine whether the
statements in question should be admitted at trial. Pertinent to our
present inquiry, section 115–10 provides for admission of evidence
and testimony concerning a statement of a child victim of sexual
abuse, relating to the abuse, where the court finds, after a hearing,
“that the time, content, and circumstances of the statement provide
sufficient safeguards of reliability.” 725 ILCS 5/115–10(a), (b)(1)
(West 2006). If the statement is admitted at trial, “the court shall
instruct the jury that it is for the jury to determine the weight and
credibility to be given the statement and that, in making the
determination, it shall consider the age and maturity of the child, ***
the nature of the statement, the circumstances under which the
statement was made, and any other relevant factor.” 725 ILCS
5/115–10(c) (West 2006). Prior to the section 115–10 hearing, the
State moved in limine to exclude Okla from testifying at both the
section 115–10 hearing and the trial. The trial court admitted Okla’s
testimony for purposes of the section 115–10 hearing, but ultimately
excluded it for purposes of trial.
At the section 115–10 hearing, Amy Becker testified regarding the
statements made by O.B. in April and May of 2003. Amy stated that
she picked her children up from defendant’s Peoria residence on April
21, 2003, after visitation. On the way home from defendant’s house,
O.B. threw up in the car. When they arrived in Chicago, Amy put
O.B. in the bathtub. As Amy tried to wash O.B., O.B. stood up, cried,
and backed away. She told Amy that her “front bottom” hurt. Amy
asked O.B. what happened, and O.B. responded, “Daddy hurt my
front bottom.” When Amy asked her what she meant, O.B. pulled her
genitals apart and pointed to her vagina.
Amy removed O.B. from the bathtub and dressed her. Amy
testified she then suggested that she be O.B. and O.B. be her father,
and that they act out what happened. Amy stated: “I laid down on the
floor and I think she must have told me to lay down, mommy, lay
down. She said, now you pretend like you’re asleep. She started kind
of moving my hips and she said, now you say, no, daddy, please stop,
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you’re waking me up. So I said, no, daddy, please stop, you’re waking
me up. And then she shook my shoulders and said, you woke yourself
up, now go back to sleep.”
Amy testified that approximately two weeks later, she was in the
bathroom when O.B. came in and asked her if she knew about “dad’s
special blue microphone.” Amy said, “No.” O.B. then described it to
her as blue and shiny at the top, and she said sometimes daddy poked
her with it. O.B. told Amy it “hurt sometimes.” Amy testified she had
not been asking O.B. any questions or talking about defendant when
O.B. made the statements.
On cross-examination, Amy admitted that, at a proceeding in July
2003, she had testified that when O.B. became upset in the bathtub
she had asked “Is daddy hurting you?” and O.B. responded
affirmatively. On redirect, Amy denied that she had initially told
investigators that she had asked O.B. if defendant was hurting her.
Detective Michael Eddlemon testified that he was assigned to the
juvenile division of the Peoria police department and had been with
the department for 15 years. On July 1, 2003, he conducted a
videotaped interview of O.B., who was four years old at the time.
Eddlemon testified that the copy of the videotape presented in court
fairly and accurately depicted the interview he conducted.
On cross-examination, Eddlemon acknowledged that he did not
interview O.B. using any specific protocol for interviewing child abuse
victims. He testified that Pam Coates, an investigator for the
Department of Children and Family Services (DCFS), was also
present for the interview. Both he and Coates asked O.B. questions.
During the interview, O.B. stated, “My dad hurt me.” Eddlemon
asked, “Did your dad touch your front bottom?” O.B. responded
affirmatively and whispered into Eddlemon’s ear, “He put the blue
microphone there.” When Eddlemon asked O.B. if people were
supposed to touch her there, O.B. responded in the negative.
Eddlemon admitted there were numerous inconsistencies in O.B.’s
answers during the course of the interview. He acknowledged that
O.B. had stated the “blue microphone” came from defendant’s head
and that Amy had also touched her with the blue microphone. He did
not ask O.B. to resolve the inconsistencies. He did, however, ask her
if she understood the difference between the truth and a lie, and she
stated she did. The circuit court then viewed the video.
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The final statements at issue were uttered on September 19, 2003,
when Amy had some friends over, one of whom was Olga Reyes.
Reyes testified, as the adults talked after dinner, O.B. crawled into
Amy’s lap and said, “I miss my daddy, but he hurt my front bottom.”
Reyes indicated O.B.’s statement had nothing to do with the
conversation the adults were having at the time. O.B. had never said
anything to Reyes about the incident before. Later, when Amy was
getting the children ready for bed, Reyes overheard O.B. say, “Don’t
go, I’m afraid daddy is going to hurt me. I’m afraid daddy is going to
come.”
Dr. Okla testified that she specializes in child and adolescent
psychology and forensic evaluation, treatment and questioning in child
abuse cases. Okla evaluated all of O.B.’s out-of-court statements by
reviewing interview notes, transcripts and videos. She did not
interview O.B. Based on her review of those materials, Okla testified
that O.B. “may have been influenced” by “post-event information and
improper techniques.” With regard to O.B.’s statements to her
mother, Okla underscored the significance of the impending divorce
and O.B.’s desire to please her primary caregiver. Okla found the
statements in the bathtub troubling because defendant’s involvement
was first suggested by Amy. She thought Amy also may have
suggested the action by lying on the floor and asking O.B. to reenact
the event. As for O.B.’s interviews with various professionals, Okla
testified that O.B.’s psychologist used suggestive and coercive
questioning during counseling. Okla suggested that those actions may
have undermined the reliability of the detective’s interview and
“likely” impacted O.B.’s ability to accurately report the event. Okla
opined that O.B.’s ongoing psychotherapy may also have affected her
ability to accurately report as it was a method of “rehearing.”
Okla testified that Detective Eddlemon may have intimidated O.B.
in his interview with her, by telling her that he had already spoken
with her mother and brother. Okla also noted the lack of ground rules
at the beginning of the interview: “[S]o we don’t have any way of
knowing whether or not this child understood that she wasn’t
supposed to guess; that she was not supposed to talk about pretend;
that she was supposed to ask questions if she didn’t understand; that
she was supposed to correct the interviewer if they [sic] made a
misstatement.” Okla stated that Eddlemon should have questioned
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O.B. further on the issue of the “blue microphone” rather than
accepting her terminology and moving on. In Okla’s opinion, the most
troubling part of the interview was the detective’s failure to ask
follow-up questions when O.B. changed her story and told Eddlemon
that defendant pulled the blue microphone out of his head, that Amy
tried to pull it out of defendant’s head, and that Amy touched O.B.’s
front bottom with the blue microphone as well.
Okla believed there was no reason for her to interview O.B.
because “[t]here’s no clean evidence left to get.” Okla opined it was
likely that O.B.’s memory and answers were tainted. She stated:
“Now, it’s too late for us to go back and say which of these things are
true or false because she’s heard it so many times. *** [I]t does
educate you hopefully about all the reasons why you should or should
not put weight on her credibility one way or the other.” Although
Okla did not give an ultimate opinion as to O.B.’s credibility, when
asked directly by the court, Okla frankly stated her belief that O.B.
could not give a “reliable” statement in person on the stand.
In a thorough 18-page order, the circuit court set forth its reasons
for excluding Okla’s testimony from trial and admitting the hearsay
statements in question. With respect to the former ruling, the court
noted, inter alia, defendant’s response to the State’s motion in limine
wherein defendant indicated that Okla would testify “based upon the
specific facts as reflected in the documented questioning and treatment
of [O.B.], that [O.B.]’s ability to testify accurately as to the subject
matter of the questioning has been significantly impaired.” (Emphasis
in original.) The court emphasized the mandate of section 115–10,
that it is for the jury to determine the weight and credibility given to
any statement admitted pursuant to that section, considering “the age
and maturity of the child, *** the nature of the statement, the
circumstances under which the statement was made, and any other
relevant factor.” The circuit court stated its belief that “the law in the
State of Illinois” is expressed in People v. Wilson, 246 Ill. App. 3d
311 (1993), and quoted the following passage in that opinion:
“In refusing to allow defendant’s expert to testify, the trial
court noted that the expert testimony would unduly emphasize
the children’s testimony at trial, would reveal only general
information about children as opposed to information about
the child victims in this case, and would only provide common
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knowledge that defendant could argue to the jury without the
aid of an expert. We agree. The limited cognitive abilities of
children are well known, and any jury can be expected to take
that factor into account when determining a child’s credibility.
The proffered expert testimony on this point would have
provided no useful information to the jury.” Wilson, 246 Ill.
App. 3d at 321.
In this case, the circuit court noted Okla’s stated opinion at the
section 115–10 hearing “that the child’s out-of-court statements and
any yet to be received testimony at trial are tainted and have a ‘high
probability’ of having been influenced by improper questioning.”
Continuing, the court observed: “Incredibly, from a criminal
procedure standpoint, she testified that it would be useless to
interview the child further or even have the child testify at this point
at trial as ‘there is no clean evidence left to get.’ ”
Confronted with the proposed testimony of an expert, that would,
in effect, advise the jury to ignore not only O.B.’s hearsay statements,
but her trial testimony as well, the circuit court exercised its discretion
and excluded Okla’s testimony at trial. In so ruling, the court
observed:
“Virtually all of the points Defendant seeks to establish can
be accomplished through cross-examination or summation to
the jury as Defendant’s counsel so aptly accomplished during
his cross-examination of Detective Eddlemon at the 115–10
hearing. Likewise, he will be able to do that at the trial. In
other words, Defendant still has, and always has had, the
significant benefits and safeguards afforded by cross-
examination, and those benefits should not be dismissed as
inconsequential. Specifically, the Defendant will have the
opportunity to cross-examine anyone testifying as to the out-
of-court statements and, likely, the minor as well.”
The court expressed concern that the trial could deteriorate into
a situation where “two battling experts”–one for defendant and one
for the State–would convey to the jury opinions as to whether the jury
should believe the witness’s statements, a scenario that would
“significantly infringe[] upon the jury’s duty to assess for itself the
weight and credibility of the statements.” On this issue, the court
concluded:
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“In offering an expert’s opinion on ‘O.B.’s ability to testify
accurately,’ Defendant is directly attacking O.B.’s credibility.
There is no other possible inference. Simple common sense
dictates that jurors have already connected the invisible dots
and formulated the obvious answer. It invades the province of
the jury on the issue of credibility, it is not to be permitted and
it is not cured by simply prohibiting the obvious ultimate
question from being asked. Accordingly, Doctor Okla will not
be allowed to testify before the jury.”
With respect to the admissibility of the victim’s hearsay
statements, the circuit court enumerated frequently mentioned factors
considered “safeguards of reliability,” and then concluded there were
sufficient safeguards in this case. The court placed special emphasis
upon the victim’s initial statements on April 21, 2003, noting they
were for the most part spontaneous and “extremely close in time to
the alleged abuse [citation], and accompanied by emotion.” In
addition, “the minor’s non-verbal description of the alleged act was
beyond the developmentally usual sexual knowledge of a four year
old.” Moreover, the court noted there had been no counseling as of
that date. The court stated “there is simply nothing in the evidence
that warrants a finding that the questioning was so unnecessarily
suggestive, conducive or improper such that the time, content and
circumstances surrounding the statements do not provide sufficient
safeguards of reliability.” The court observed, with respect to
statements made to Detective Eddlemon, there was a “taped interview
to be reviewed directly by the jury.” The court concluded “it is
appropriately left to the jury to decide whether the statements
contained ‘no clean evidence’, and whether there was any ‘clean
evidence left to get.’ ”
At the ensuing trial, the witnesses from the section 115–10 hearing
gave testimony similar to their statements at the hearing. Amy testified
regarding the April 21 and May 2 statements. Again, on cross-
examination, Amy was confronted with her testimony from July 2003,
when she testified that she asked O.B.: “Is daddy hurting you?” Amy
acknowledged that she so testified. Defense counsel also questioned
Amy about a statement she gave to a detective in May of 2003. The
detective’s report stated, “Amy thought to ask [O.B.] if her daddy had
touched her there.” Amy denied that she made that statement. Amy
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admitted she did not say that O.B. told her to lie down when she
testified at defendant’s first trial, but stated that O.B. must have told
her to do that because she would not have known to lie down
otherwise.
Detective Eddlemon did not testify at trial, but the videotaped
interview was played for the jury. The first segment of the two-part
interview lasted 16 minutes. That segment of the interview depicts a
conversation between O.B. and Detective Eddlemon regarding O.B.’s
statements that defendant hurt her “front bottom” with a “blue
microphone.” O.B. is seated at a small table with Eddlemon and
Coates. She appears happy and is comfortable speaking with
Eddlemon. She tells him her dad hurt her “front bottom” with a “blue
microphone” that he held in his hand, that he touched her “privates”
in his closet and on his bed, and that he touched her “front bottom”
with his hand. When Eddlemon asks where the microphone came
from, O.B. points to her head and says that her father kept it in his
head. She then states that Amy used the blue microphone on O.B.’s
“front bottom” too. She states that her mother “tried and tried to pull
the blue microphone out of Daddy’s head and she finally got it!”
When asked, O.B. indicates that the blue microphone was shaped like
a circle and was approximately six to eight inches tall. Eddlemon then
asked O.B. if she knew the difference between the truth and a lie, and
she nodded her head “yes.” O.B., Eddlemon and Coates then exit the
room.
The second segment of the video is unremarkable from an
evidentiary standpoint, other than O.B.’s disinterest in the
proceedings. The three principals return to the interview room and
Eddlemon states that he needs to ask O.B. a few more questions.
Eddlemon asks O.B. to draw the blue microphone and she produces
a picture that is unidentifiable. The caseworker then asks O.B.
questions about a room in the attic or a “special” room in defendant’s
house. O.B. is unable to identify such a room and asks if she can
watch a movie. At that point the interview ends.
Amy’s friend, Olga Reyes, testified that on the evening of
September 19, 2003, she heard O.B. make two statements to Amy. In
the second statement, she overheard O.B. telling Amy, as the latter
was putting the former to bed, that she was “afraid that daddy will
come and hurt my front bottom.” Reyes acknowledged that during the
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earlier section 115–10 hearing, she had stated that when O.B. was in
her bedroom, O.B. said, “I’m afraid daddy will come.” Reyes did not
testify that O.B. had used the term “front bottom” at that time.
O.B. was eight years old when she testified at trial. She told the
jury when she was three she spent the Easter holiday with her father.
She testified, during that weekend, defendant put hair gel in her front
bottom, stuck a tall metal knife in her front bottom, and put a “blue
microphone,” 8 to 10 inches in length, between her front bottom and
back bottom while she was sleeping on his bed. She stated that she
told her mother what defendant had done while her mother was giving
her a bath. She recalled talking to a doctor the next day, but could not
remember the details of the conversation.
On cross-examination, O.B. had difficulty recalling many of the
facts to which she had testified at the first trial. She did not remember
talking to a DCFS investigator, meeting with Eddlemon or Coates, or
answering “no” to the trial court when the judge asked if anything bad
happened to her on Easter weekend. She also denied telling
investigators that her friend, Grant, kicked her in her “privates.” In
response to questioning by defense counsel, she did elaborate on her
description of the “blue microphone,” describing it as “yellow” at the
top and “blue and green on the handle.” O.B. acknowledged having
testified at the first trial that “it felt weird” when defendant put the
“blue microphone” in her front bottom.
Pediatrician Elizabeth Powell testified that she examined O.B. in
the emergency room on April 22, 2003. Her examination did not
reveal any bruises or tears; however, she could see the posterior
vaginal wall, which she thought was unusual for a young child, so she
referred O.B. to the advocacy center.
Dr. Marjorie Fujura, a pediatrician employed by the Children’s
Advocacy Center, testified that she met with Amy and O.B. on June
2, 2003. After several attempts, she examined O.B. under sedation on
June 11, 2003. Her physical exam of O.B. indicated that a portion of
her hymen was absent. Fujura testified that she had performed 3,000
examinations on sexually abused children. She believed O.B.’s injury
to her hymen was not self-inflicted, nor was it caused by a punch from
another child. It was Fujura’s opinion that O.B. had been sexually
abused. Fujura took photographs of O.B.’s hymen. Those photos,
which were admitted into evidence, showed the lower portion of
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O.B.’s hymen was missing.
Dr. Ramona Slupik testified on behalf of defendant. Slupik, a
board-certified obstetrician and gynecologist, was the head of
pediatric and adolescent gynecology at Children’s Memorial Hospital
from 1990 to 1999. She examined the photographs of O.B.’s hymen
and testified that O.B. had a “normal crescent hymen.” She noted
there were no lacerations in the hymenal tissue. Dr. Slupik stated her
belief that it was “physically impossible” to insert an object of the size
described by O.B. “without causing a complete tear of the hymen.” In
addition, a child the size of O.B. would suffer serious injury and
bleeding from such penetration. Slupik’s review of the photographs
revealed no signs of penetration trauma.
Dr. Lela Jain also testified for defendant. She examined O.B. on
May 19, 2003, in her office for a respiratory illness. During the exam,
Amy mentioned O.B.’s report of possible abuse. Jain visually
examined O.B.’s vaginal area and found nothing abnormal. She
observed no tears or lacerations.
Defendant testified that he and Amy had been separated for
several months prior to April of 2003. However, the couple
maintained an amicable relationship and even attempted to reconcile
at one point. Although they were in the midst of divorce proceedings
in April of 2003, which included issues of custody and visitation,
visitation arrangements had never been contentious prior to the
allegation of abuse. Defendant had the children for Easter weekend
that year, and Amy picked them up on Monday afternoon. That was
the last day he was allowed to see his children. Defendant testified that
he never abused the children and the accusation that he had abused his
daughter was false. Defendant admitted, on cross-examination, that he
left on a photo safari to Africa at a time when he was aware of Amy’s
“concerns” that “somebody” had sexually abused O.B., though he
claimed he did not then know he was the alleged perpetrator.
The jury found defendant guilty of both counts, and defendant was
sentenced to 14 years’ imprisonment for predatory criminal sexual
assault.
As noted, the appellate court, with one justice dissenting, reversed
and remanded for a new trial. With respect to the issue of admissibility
of expert testimony, the majority believed the facts of this case make
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it distinguishable from People v. Enis, 139 Ill. 2d 264 (1990), and
People v. Wilson, 246 Ill. App. 3d 311 (1993), and controlled by the
holding in People v. Cardamone, 381 Ill. App. 3d 462 (2008). The
appellate majority reasoned that the courts in Enis and Wilson rejected
the use of the expert’s testimony at trial “because it lacked
applicability to the specific facts of the case.” According to the
majority, “[b]y contrast, Dr. Okla’s testimony directly analyzed the
effects of suggestion, repetition and narration on O.B.’s cognitive
memory. *** She *** applied *** scientific theories to the
questioning and interviewing techniques used to recall O.B.’s memory
of the events of April 21, 2003.” No. 3–07–0660 (unpublished order
under Supreme Court Rule 23). According to the majority, “[u]nlike
the experts in Enis and Wilson, Okla proposed to testify to the specific
facts related to O.B.’s statements, not generalities.” The majority
likened the circumstances here to those extant in Cardamone, where
the appellate court reversed the defendant’s conviction and remanded
for a new trial, because the trial court excluded expert testimony on
this subject. No. 3–07–0660 (unpublished order under Supreme Court
Rule 23). This appellate panel summarized the holding of Cardamone
as follows:
“The court concluded that, unlike Enis and Wilson, the
experts’ testimony was supported by the testimony of the
victims, who reported the events at an age when young
children have difficulty remembering events, had told the story
numerous times even without suggestion, and were
interviewed using leading and suggestive questions instead of
being allowed to give a narrative response. The court further
determined that the experts’ testimony did not constitute
improper commentary on the credibility of victims because the
experts had not interviewed the victims and had not made any
determinations as to whether they were credible. Cardamone,
381 Ill. App. 3d at 507.” No. 3–07–0660 (unpublished order
under Supreme Court Rule 23)
In this case, the appellate court found it significant–and indeed a fact
supporting its disposition–that “Dr. Okla did not interview O.B.”
As for the hearsay statements at issue, the appellate court found
the initial April 21 statement reliable because it was spontaneous, it
was made “within days of the alleged event,” it was repeated to
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Detective Eddlemon, and the language used by O.B. was consistent
with the terms a three-year-old would use. The court determined that
the second statement, made two weeks after the first, was also
properly admitted, as it was made without significant adult prompting
or solicitation, and, though it was different from the April 21
statement, it was relevant to the allegations of abuse and consistent
with her later statement to Detective Eddlemon. The court found that
the statements given by O.B. in the first segment of her July 1
videotaped interview were properly admitted, noting that O.B.’s
previous statements were “substantially similar,” that she seemed
comfortable and did not appear apprehensive or concerned that she
might not tell the story correctly, and her use of “sexual” terminology
was typical for a four-year-old. Moreover, the fact that the interview
was videotaped was “the best evidence that no adult prompting or
manipulation occurred” during the course of the discussion. However,
the appellate court found no relevance to the second segment of the
interview, as the picture O.B. drew of the “blue microphone” was
unidentifiable, and nothing of record suggests that an attic or special
room might have been involved in the alleged incident, as Coates’
question suggested. The court held that segment of the interview
should have been excluded. No. 3–07–0660 (unpublished order under
Supreme Court Rule 23)
The court made the same determination with respect to O.B.’s
statements of September 19, finding the “timing of these statements
*** troubling.” The court noted that they were uttered five months
after O.B. spent Easter vacation with her father, that she had been
interviewed by two detectives and had attended counseling sessions
with a psychotherapist, and the State had failed to introduce any
substantive evidence regarding the first investigative interview or the
therapist’s interview. The court concluded, citing this court’s decision
in People v. Zwart, 151 Ill. 2d 37, 45 (1992): “[We cannot] presume
from a silent record that suggestive interview techniques were not
used.” Almost as an afterthought, the court observed that a portion of
Reyes’ trial testimony was cumulative of other evidence in the case,
insofar as she stated her father had hurt her “front bottom.” The court
noted O.B.’s statement that she was afraid of her father was a
comment not previously made and suggested that the statement may
have been the product of suggestive questioning during interviews.
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Though the appellate court acknowledged that “delay alone may not
suggest that the statements are unreliable,” it believed that “the delay
becomes more significant when considered in light of other factors
that tend to show O.B.’s September 19 statements made in Reyes’
presence lacked reliability.” Thus, the appellate court majority
concluded that the trial court had abused its discretion in admitting
those statements at trial. No. 3–07–0660 (unpublished order under
Supreme Court Rule 23).
Given its determinations of evidentiary error–principally the
exclusion of Okla’s testimony–the appellate court reversed and
remanded for a new trial, finding, however, that the evidence properly
before the trier of fact was sufficient to prove defendant guilty beyond
a reasonable doubt, such that there was “no double jeopardy
impediment to a new trial.” No. 3–07–0660 (unpublished order under
Supreme Court Rule 23).
ANALYSIS
We begin our analysis with basic standards of review applicable to
evidentiary issues. The admission of evidence is within the sound
discretion of a trial court, and a reviewing court will not reverse the
trial court absent a showing of an abuse of that discretion. Snelson v.
Kamm, 204 Ill. 2d 1, 24 (2003); People v. Hall, 195 Ill. 2d 1, 20-21
(2000). An abuse of discretion occurs where the trial court’s decision
is arbitrary, fanciful or unreasonable (People v. Illgen, 145 Ill. 2d 353,
364 (1991)) or where no reasonable person would agree with the
position adopted by the trial court (Schwartz v. Cortelloni, 177 Ill. 2d
166, 176 (1997); Illgen, 145 Ill. 2d at 364). Decisions of whether to
admit expert testimony are reviewed using this same abuse of
discretion standard. Snelson, 204 Ill. 2d at 24; People v. Reid, 179 Ill.
2d 297, 313 (1997).
In People v. Enis, 139 Ill. 2d 264, 289 (1990), this court
prophetically cautioned against the overuse of expert testimony:
“Such testimony, in this case concerning the unreliability of
eyewitness testimony, could well lead to the use of expert
testimony concerning the unreliability of other types of
testimony and, eventually, to the use of experts to testify as to
the unreliability of expert testimony. So-called experts can
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usually be obtained to support most any position. The
determination of a lawsuit should not depend upon which side
can present the most or the most convincing expert
witnesses.”
In an effort to curb potential abuses, this court established certain
standards for admissibility. In Enis, this court mandated that a trial
judge, when determining the admissibility of expert testimony, and
when considering the reliability of the expert testimony, should
balance its probative value against its prejudicial effect. Enis, 139 Ill.
2d at 290. In the exercise of his or her discretion, the trial judge
should also carefully consider the necessity and relevance of the expert
testimony in light of the facts in the case before admitting it for the
jury’s consideration. Enis, 139 Ill. 2d at 290. This court has held that
expert testimony is only necessary when the subject is both
particularly within the witness’s experience and qualifications and
beyond that of the average juror’s, and when it will aid the jury in
reaching its conclusion. People v. Cloutier, 156 Ill. 2d 483, 501
(1993); Enis, 139 Ill. 2d at 288. Expert testimony is not admissible on
matters of common knowledge unless the subject is difficult to
understand and explain. People v. Gilliam, 172 Ill. 2d 484, 513
(1996). A trial court does not err in barring expert testimony where
the matter at issue is not beyond the ken of the average juror. Watkins
v. Schmitt, 172 Ill. 2d 193, 206-07 (1996).
In this case, the trial court was confronted with the proffered
testimony of Dr. Okla, that would, for all practical purposes, advise
the jury to disregard not only O.B.’s hearsay statements, but her trial
testimony as well, all without Okla having even interviewed O.B.
During section 115–10 proceedings, Okla stated there was no reason
for her to interview O.B. because “[t]here’s no clean evidence left to
get.” Okla said it was likely that O.B.’s memory and answers were
tainted. She stated, “hopefully,” her (Okla’s) testimony would
“educate” people why they “should or should not put weight on
[O.B.’s] credibility one way or the other.” When asked directly by the
court, Okla frankly stated her belief that O.B. could not give a
“reliable” statement in person on the stand.
Her tactical equivocation aside, there was no “one way or the
other” involved in Okla’s proposed testimony. Her testimony would
constitute direct, adverse comment on the “credibility” of O.B., that
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is “credibility” in the broadest, utilitarian sense, as defined in Black’s
Law Dictionary: “The quality that makes something (as a witness or
some evidence) worthy of belief.” Black’s Law Dictionary 423 (9th
ed. 2009). Given the facts of this case, the trial court did not abuse its
discretion when it excluded Okla’s testimony.
One basis for exclusion is the impropriety of asking one witness to
comment directly on the credibility of another. Under Illinois law, it
is generally improper to ask one witness to comment directly on the
credibility of another witness (People v. Kokoraleis, 132 Ill. 2d 235,
264 (1989); People v. Henderson, 394 Ill. App. 3d 747, 753-54
(2009)) as “[q]uestions of credibility are to be resolved by the trier of
fact” (Kokoraleis, 132 Ill. 2d at 264). While this observation in
Kokoraleis was rendered regarding the impropriety of asking for such
an opinion during the cross-examination of another witness, the error
here would obviously have been magnified many times
over–quantitatively and in terms of apparent authority of the
source–had the trial court allowed Okla to testify as an expert at trial,
offering extensive testimony attacking the credibility of O.B.’s out-of-
court statements and her trial testimony.
Even if we were to disregard this principle, we would uphold the
trial court’s decision because what Okla was offering, i.e., the
observation that this young child, like any young child, might be
influenced by suggestive questioning and improper investigative
techniques, is not a matter beyond the ken of the average juror. The
operative principles are matters of common knowledge and are not
difficult to understand. Couching these principles in technical terms
does not render them otherwise. Certainly, the concepts involved are
familiar to the average citizen and no more difficult to understand than
that at issue in Gilliam.
In Gilliam, defendant claimed that the trial court erroneously
limited the evidence he could present to the jury on the circumstances
surrounding his confession. In an offer of proof, Dr. Michael Althoff,
an examining psychologist, opined that defendant’s desire to protect
his family made him especially susceptible to police pressures and
created a form of psychological compulsion to confess. Thus,
according to Althoff, defendant’s confession was the product of
psychological coercion. The trial court granted the State’s motion in
limine to limit Althoff’s testimony. The court ruled that Althoff could
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testify on defendant’s mental state or condition, but could not testify
on the circumstances surrounding the voluntariness or competency of
defendant’s confession.
Describing a procedure with some parallels to the section 115–10
procedure employed in this case, this court noted that “the
admissibility of a confession that is challenged on the ground that it is
involuntary is a matter for the trial court to determine in the first
instance out of the presence of the jury. If the court rules that the
confession is voluntary and admissible in evidence, the defendant still
has the right to present evidence to the jury that affects the credibility
or weight to be given the confession.” Gilliam, 172 Ill. 2d at 512-13.
In the end, this court held that the trial court properly exercised its
discretion in limiting the trial testimony of Dr. Althoff. “Whether
defendant falsely confessed to protect his family is not a concept
beyond the understanding of ordinary citizens, and is not difficult to
understand or explain. [Citations.] Further, we note that defendant
was not precluded from challenging the credibility of his confession.
The jury could have reached the same conclusion as Dr. Althoff based
on the facts imparted through the testimony of other witnesses.”
Gilliam, 172 Ill. 2d at 513.
The same is true here. Defendant could have apprised the jury of
the circumstances surrounding O.B.’s statements through other
witnesses both on direct and cross-examination. Counsel in fact did
that and, in summation, discussed, in laymen’s terms, the very
principles Okla would have testified to. As for the principles of
psychological suggestion defendant would have had Okla testify to,
we fail to see how they are different, in any significant way, from the
principles of psychological coercion at issue in Gilliam–principles that
this court deemed within the ken of the average juror.
Notwithstanding defendant’s arguments otherwise, we believe it is a
matter of common understanding that children are subject to
suggestion, that they often answer in a way they believe will please
adults, and that they are inclined to integrate fictional notions with
reality as we know it. Are citations to scientific studies necessary to
apprise jurors of these tendencies? We think not. We need only cite as
an example O.B.’s claim that defendant at one time had a blue
microphone stuck in his head and that Amy succeeded in pulling it
out. In our opinion, defendant’s argument as to the necessity of Okla’s
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testimony is yet another instance of a defendant who would exalt the
role of the “expert” beyond its warranted dimensions. In the process,
he implicitly seeks “to discredit the common sense and intelligence of
those who served on the jury” (see People v. Urdiales, 225 Ill. 2d
354, 445 (2007)), which is a cornerstone of our system of justice.
The testimony of Dr. Okla was not necessary to make defendant’s
points. The limited probative value of her testimony–limited, that is,
in light of the jurors’ common knowledge in this area–was outweighed
by the prejudice she would have interjected into the trial–commenting
extensively and directly on circumstances purportedly affecting the
mental processes and credibility of another witness, whom she had
never even interviewed, and, for all practical purposes, telling the
jurors that that witness’s testimony should be disregarded. Given the
facts of this case, the trial court’s decision to exclude Okla’s testimony
was not “arbitrary, fanciful or unreasonable.” See Illgen, 145 Ill. 2d
at 364. The appellate court erred in holding otherwise.
As for the testimony of Amy’s friend, Olga Reyes, regarding
statements made by O.B. on September 19, 2003, we need not
address the admissibility thereof as their admission at trial was
harmless, assuming, arguendo, it was error at all.
Defendant argues that we should not address harmless error
because the State did not specifically mention harmless error in its
petition for leave to appeal, wherein the State argued that the
appellate court erred in finding that the trial court’s exclusion of
Okla’s testimony at trial was an abuse of discretion, and that the
appellate court erred in finding that the trial court should have
excluded O.B.’s hearsay statement of September 19. As we explained
in In re Rolandis G., 232 Ill. 2d 13, 37 (2008), “the failure to raise an
issue in a petition for leave to appeal is not a jurisdictional bar to this
court’s ability to review a matter.” When an issue is not specifically
mentioned in a party’s petition for leave to appeal, but it is
“inextricably intertwined” with other matters properly before the
court, review is appropriate. People v. McKown, 236 Ill. 2d 278 , 310
(2010); Rolandis G., 232 Ill. 2d at 37. In this instance, we find that
the consequence of admitted evidence is inextricably intertwined with
the propriety of its admission.
Defendant also argues that the State’s treatment of harmless error
in its brief is insufficient to warrant our consideration of the matter.
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We disagree. Citing, with explanation, our decision in Rolandis G.,
the State contends, “given the appellate court’s finding that the
content of the statements was ‘cumulative’ of other evidence ***, if
admission of the September 19, 2003 statements was error, it was–by
definition–a harmless one.” We find this argument is adequate and in
fact dispositive here.
As we noted in Rolandis G., when deciding whether error is
harmless, a reviewing court may (1) focus on the error to determine
whether it might have contributed to the conviction; (2) examine the
other properly admitted evidence to determine whether it
overwhelmingly supports the conviction; or (3) determine whether the
improperly admitted evidence is merely cumulative or duplicates
properly admitted evidence. O.B.’s September 19 statements fall into
the third category. The testimony of Amy’s friend, Olga Reyes, added
nothing new for the jury’s consideration. The jury was otherwise
informed of O.B.’s statements that her father had hurt her “front
bottom” through Amy’s testimony regarding O.B.’s initial statement–a
statement as spontaneous as, and more detailed than, the September
19 statements, and one uttered immediately after the abuse. The
videotaped interview with Detective Eddlemon also contained more
detail than O.B.’s subsequent statements. Defendant argues that the
September 19 statements add “a new-found fear of [the victim’s]
father” that is not evinced in her earlier statements. While that may be
true, it would hardly be revelatory, as the only basis for fear would
have been the action of defendant in hurting her, which she mentioned
in her earlier statements, and in the very statement at issue. The
average citizen serving on a jury understands that. We find that
admission of the September 19, 2003, statement was harmless as
cumulative and duplicative of properly admitted evidence, assuming,
arguendo, it was error at all.
With respect to the other issues that were addressed by the
appellate court–the dispositions of which are not matters of
discussion, controversy, or briefing here–we find no basis for
disagreement. Those assessments include the appellate court’s finding
that the evidence, when viewed in the light most favorable to the
State, was sufficient to prove defendant guilty beyond a reasonable
doubt.
For the foregoing reasons, the judgment of the appellate court is
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reversed, and that of the circuit court affirmed.
Appellate court judgment reversed;
circuit court judgment affirmed.
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