People v. Major-Flisk

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State: Illinois

Court: 1st District Appellate

Docket No: 1-08-0777 Rel

Case Date: 01/29/2010

Preview:Sixth Division January 29, 2010 No. 1-08-0777 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL MAJOR-FLISK, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County 06 CR 4057

Honorable David P. Sterba, Judge Presiding.

JUSTICE McBRIDE delivered the opinion of the court: Following a jury trial, defendant, Michael Major-Flisk, was found guilty of one count of aggravated criminal sexual assault against the five-year-old victim M.O. The trial court sentenced defendant to a term of six years' imprisonment. On appeal, defendant contends that the trial court erred by allowing testimony of out-of-court statements made by the victim pursuant to the hearsay exception for sexual abuse victims under the age of 13 (725 ILCS 5/115-10 (West 2006)). For the reasons that follow, we affirm. Defendant was arrested and charged by indictment with 7 counts of aggravated criminal sexual assault, 14 counts of criminal sexual assault, 5 counts of aggravated criminal sexual abuse, and 10 counts of criminal sexual abuse. The two counts that were ultimately submitted to the jury alleged that defendant committed aggravated criminal sexual assault based upon penetration of the victim's anus by defendant's finger and contact between defendant's mouth and the victim's penis. These counts also alleged that defendant was under 17 years of age at the time of the alleged offense and that the victim was under 9 years of age when the act was committed. See 720 ILCS 5/12-14(b)(i) (West 2006). Defendant was found guilty of the first count.

1-08-0777 Prior to trial, the State filed a motion indicating that it intended to introduce statements made by the victim through the testimony of certain witnesses. The State also requested a hearing to determine whether the victim's hearsay statements were sufficiently reliable to be admitted under section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2006)). At this hearing, which was held on February 6, 2007, the State informed the trial court that the victim, seven-year-old M.O., would testify at trial and offered the testimony of three witnesses to M.O.'s hearsay statements. Celine M., M.O.'s aunt, testified that on January 22, 2006, M.O. was dropped off at her home by his mother. Subsequently, M.O. was at the kitchen table with several other boys talking "boy talk" when Celine, who was approximately 15 to 20 feet away at a nearby computer with her son, heard M.O. say, "Michael stuck his finger up my butt." The boys "went just crazy," and said "that's gross [and] that's disgusting." Celine moved closer to the boys and then heard M.O. say, "and he stuck his tongue in my mouth." This statement was followed by "more uproar." The other boys were repeating the things that M.O. said and one of the boys told Celine's son, "you got to tell your mom." Celine then sent all of the boys except M.O. downstairs and asked M.O. if what he said was true. M.O. nodded yes and then "clammed up" as if he did not want to say anymore. Celine called M.O.'s mother and told her to come over at once. On cross-examination, Celine explained that she was not visible to the boys when they were talking because the kitchen is an "L-shaped" room and the refrigerator blocked the boys' view of her. Celine also explained that she paid attention to all of the details of the boys' conversation, testifying that she always paid attention to these conversations because "you would

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1-08-0777 be surprised what you find out." Celine spoke to a detective from the Evergreen Park police department the following evening. Celine also testified that she did not tell the detective that she was in an adjoining room but that she did tell the detective that the boys were repeating what they heard and that one of those boys said, "Mike stuck his tongue in [M.O.'s] mouth and his finger in [M.O.'s] butt." The victim's mother, Lori O., testified that she went to Celine's home after receiving a call from her at approximately 11:30 a.m. She spoke to Celine and then she and her husband went to the police station. M.O. remained at Celine's home during this time and Lori had not yet spoken to her son. After speaking with an officer at the police department, Lori picked up M.O. and went home. She gathered her husband, M.O., and his brother Andrew in the family living room and explained to her two sons that they were going to have a conversation and that it was important to tell the truth. Lori did not give the children the facts about what Celine had told her, but instead asked M.O., "What did you say to Aunt Celine?" According to Lori, M.O., "actually took a deep breath, like a big relief was like off his chest, and he indicated to me that Michael Major had put his hand down his pants, [M.O.'s] pants." Lori asked M.O. where this happened, and M.O. responded, "on Michael's front porch." She asked M.O. if that was all that happened, and he said yes. Lori then explained to M.O. that what he said was serious and that it was important that he was not "fabricating a story" and that he was telling "the absolute truth." M.O. then said that "Michael had showed him his penis" and that he gave M.O. his video game "so that I would keep his secret from everybody." Lori did not say anything further because M.O. was five years old

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1-08-0777 and she did not want him to feel that she had to know all the information right away. Therefore, she "just kind of said okay, [M.O.]," and accepted his answer for the time being. Lori was later contacted by the police regarding having M.O. attend a victim-sensitive interview. She brought him to that interview on January 25, 2006. She did not tell M.O. what to say during the interview and only told him where they were going on the morning they left for the interview. At that time, Lori told M.O. that "this is where we were going, and these people are here to help us." She also told him that it was "important to tell them the same thing that you told mom and dad, and most importantly, you have to tell the truth." On cross-examination, Lori testified that during their first telephone conversation, Celine did not tell her what had happened but only that it was important for her and her husband to come to Celine's home as soon as possible. When Lori and her husband arrived at the home, Celine told her about the conversation among the boys that she had overheard. Lori further testified that she spoke to M.O. about strangers and inappropriate touching several weeks prior to the incident and that he did not say anything at that time. Lori also testified that M.O. told her that defendant showed him his penis on defendant's porch. Lori explained that defendant lived next door to her and she described the porch as being open but having an obstructed view from the street or sidewalk. Lori further testified that prior to the victim sensitive interview, she told M.O. that the police and friends of the police wanted to talk to him. M.O. said that "he didn't want to talk to anybody about this." Lori told him that it would be a "friendly conversation"and that "it was important that he talk to these people." She also asked M.O. when the incident happened, and he responded "after school." She also asked him if it happened more than once, and he said that it

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1-08-0777 had. Danielle Butts, the director and forensic interviewer for the Children's Advocacy Center of Southwest Cook County (the Center), interviewed M.O. at approximately 11 a.m. on January 25, 2006. The interview was conducted in an interview room at the Center, which Butts described as containing a one-way mirror and children's furniture. Detective Jack McCarthy from the Evergreen Park police department and an assistant State's Attorney (ASA) were in an adjoining observation room and observed the interview through the one-way mirror. When M.O. arrived at the Center, he agreed to speak with Butts in an interview room. Butts asked M.O. his name, age and grade, and M.O. responded with his name, that he was five years old, and that he was in kindergarten. Butts asked M.O. to identify colors, to distinguish between a truth and a lie, inside and outside and on top of and under, and to identify body parts using an anatomically correct male doll that was fully clothed. M.O. was able to complete all of these requests. Butts asked M.O. if he knew why he was at the Center, and he said it was because "his friend was a bad guy." M.O. stated that his friend was "Mike Major." Butts then asked M.O. if anyone told him not to talk to her or what to say, and M.O. responded no. M.O. told Butts that he was five years old when the events occurred and that they occurred on "Mike's front porch" and "one time in his own basement." Butts asked M.O. what happened, and he stated that "Mike put his hand down the front of his pants, Mike put his tongue in [M.O.'s] mouth, and Mike put his finger on [M.O.'s] butt." When asked how this felt, M.O. said, "it felt bad." Butts asked if anything else happened, to which M.O. responded, "Mike put his mouth on [M.O.'s] penis," that "Mike touched his penis to [M.O.'s] penis," and that "Mike put

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1-08-0777 his finger in [M.O.'s] butt." Butts asked M.O. if he put his mouth on defendant's penis, and M.O. said no. Butts asked where this happened, and M.O. stated that it happened on "Mike's front porch." M.O. also stated that his brother witnessed these events. M.O. also told Butts that "Mike put his finger inside his butt," and that he also "tried to put his penis inside his butt." When asked how this felt, M.O. said that it felt "very very very bad." When asked if anything else happened, M.O. said "Mike had him touch his penis and squeeze it" but nothing came out. M.O. stated that he was in kindergarten when this happened and that it occurred both before and after Halloween. When asked how many times this happened, M.O. said it happened "all the time when he went over to Mike's house on the front porch, and it happened one time in his basement." When Butts asked M.O. to show her what happened using the anatomically correct doll, M.O. turned the doll over, pulled down its pants, bent it over, and pointed to the doll's anus indicating that he had inserted his finger into the anus. On cross-examination, Butts testified that she had spoken to a detective and an ASA and had been briefed about the investigation prior to interviewing M.O. She was therefore aware that there had been allegations of sexual contact between defendant and the victim. The detective and ASA could see and hear the interview with M.O., although Butts did not tell him that the two were observing the interview. Butts asked M.O. if it was good or bad to tell the truth or lie, and M.O. stated that it was good to tell the truth and bad to lie. Butts did not take notes or prepare a report of the interview because this was being done by a police officer. She also testified that she did not ask M.O. about specific acts or locations but, rather, asked him open-ended questions such as "What happened." Butts also only told M.O. that her name was Danielle and that she was

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1-08-0777 there to talk to M.O., but she did not tell him the purpose of their conversation. The parties stipulated to the testimony of Detective McCarthy. According to the stipulation, Detective McCarthy would testify that, consistent with his police report, he spoke with Celine on January 25, 2006. Although not verbatim, Celine told the detective that she heard her son's friend, Phillip, twice say "you got to tell your mom," that she heard M.O. say, "he stuck his tongue in my mouth," and that one of the boys said, "Mike stuck his tongue in [M.O.'s] mouth and his finger in [M.O's] butt." The trial court granted the State's motion to admit M.O.'s statements. With respect to the statements that M.O. made to his mother and the statements overheard by Celine, the court found that they were not testimonial in nature and that the time, content and circumstances of those statements provided sufficient safeguards of reliability. Therefore, the court found that if M.O. testified at trial or was judicially declared "unavailable" and there was corroborating evidence of the acts which were the subject of the statements, M.O.'s statements would be admitted through the testimony of Lori and Celine. With respect to the statements made to Butts, the court found that they were testimonial in nature and therefor subject to the confrontation clause contained in the sixth amendment. The court further found that if the child did in fact testify at trial, as the State had indicated he would, the confrontation clause placed no limits on the introduction of M.O.'s statements to Butts because defendant would have the opportunity to cross-examine M.O. Finally, the court found that the time, content and circumstances of M.O.'s statements to Butts provided sufficient safeguards of reliability and that, therefore, if M.O. testified at trial, these statements would be admitted.

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1-08-0777 The following evidence was presented at defendant's trial. M.O. testified that he was currently seven years old and in second grade. M.O. identified defendant as his neighbor and as someone with whom he played in his basement and in defendant's bedroom. Defendant would also grab M.O.'s hands and swing him around in his front yard, and M.O. testified that defendant did not do anything to him that he thought was "bad" when they played these games. M.O. also testified, however, that defendant touched him when he was on defendant's front porch by making M.O. "sit on his hand." When asked if he remembered whether defendant touched him in any other way, M.O. responded, "uhm, no." M.O. then gave the following testimony under direct examination: "Q. [M.O.], did you ever talk to your mom and tell her that Michael Major touched you? A. Uhm, no. Q. [M.O.], did you ever speak with your Aunt Celine and tell her that Michael Major touched you? A. Uhm, yes. Q. You did? A. Yes. Q. Do you remember when that was, [M.O.]? A. Uhm, last night we

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