People v. Miller, No. 5-98-0434

5th District, 15 February 2000

JUSTICE HOPKINS delivered the opinion of the court:

Defendant appeals from his conviction of the offense of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1996)). Defendant contends that his right to a fair trial was violated (1) when the trial judge read atranscript of the complaining witness's testimony to the jury during deliberations and (2) when the court admitted a highlyprejudicial and irrelevant statement made by defendant. For reasons we will more fully explain, we reverse and remand.

FACTS

On New Year's Day 1998, Tanya Harmon took her daughter, B.C., then six years old, to the emergency room of St. Mary'sHospital in Centralia, Illinois. The emergency room nurse, Judy Smith, testified at defendant's trial that she was on dutywhen B.C. and her mother arrived. B.C. told Judy that someone put his hand down her pants. Judy examined B.C. andnoticed redness in B.C.'s vaginal area but no trauma that exclusively indicated sexual abuse. Judy testified that rednesscould result from poor hygiene, insufficient wiping after urination, or someone rubbing the area.

While Tanya and B.C. were at the hospital, officer James Ramsey, a Centralia police department patrolman, interviewedB.C. and Tanya. According to Ramsey, at first B.C. would not talk to him, but later B.C. said that she wished defendantwould die because he hurt her by digging his fingers up into her. Ramsey testified that B.C. indicated where defendant hurther by pointing to her vaginal area rather than by saying anything. After Ramsey questioned her further, she indicated thatdefendant did this to her "under her clothes."

Prior to trial, in response to one of defendant's motions in limine, the trial court allowed the State to conduct an offer ofproof outside the presence of the jury. Ramsey testified in the offer of proof that after interviewing B.C., Ramsey arresteddefendant, transported him to the police station, gave him his Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 16L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), and told defendant that someone reported that defendant touched B.C.inappropriately. Ramsey described what defendant said when he asked defendant if he had touched B.C. inappropriately:

"His response was he was arrested in Maine when he was thirteen for gross sexual misconduct [and] that he had donea lot of bad things in the past."

Ramsey testified:

"[I wanted to] clarify exactly what[--]if he was answering my question or whether he was trying to lead with that. Iasked him if he was talking about [B.C.] or if he meant he had been touching [B.C.] inappropriately, what he meantby that statement. At that point, he said [']I think I need to speak to a lawyer.[']"

Ramsey terminated the interview at that point.

Defendant's attorney asked Ramsey if defendant ever told him that he sexually assaulted B.C. Ramsey responded thatdefendant had not.

The trial court granted defendant's motion to bar evidence about defendant's arrest in Maine, since that occurred whendefendant was a juvenile and is inadmissible under the Juvenile Court Act of 1987 (705 ILCS 405/1-10 (West 1986)). TheState argued, however, that the portion of defendant's statement referring to doing a "lot of bad things" was admissible as adirect response to Ramsey's question about touching B.C. inappropriately. The State argued that the statement wasadmissible because it was just as likely that defendant was admitting to the charge against him as it was that he wasreferring to his juvenile problems. The State argued that any interpretation of the statement or the determination of whatweight to give it should be made by the jury.

Defendant argued that the statement was inadmissible because defendant could not clarify it without divulging his juvenileconviction.

The trial court denied defendant's motion in limine to keep the statement out. The trial court found that the statement was "aspecific response to a direct question."

Prior to the trial, the State filed a motion to allow the complaining witness, B.C., to testify via closed circuit television,based upon a letter from her therapist, Jean Nosbisch, to the Marion County State's Attorney. In the letter, Nosbisch statedthat B.C. should be allowed to testify via closed circuit television because it was "necessary to prevent any further trauma tothe six-year-old child," in that she was fearful of defendant and was having nightmares and "other symptoms of PostTraumatic Stress Syndrome [sic]." Defendant objected to the motion on the ground that it violated his sixth amendmentright to confront the witnesses against him. The trial court granted the State's motion.

The State called B.C. as its first witness. In the courtroom, without the jury present, defendant's attorney informed the courtthat, "for strategy reasons," defendant requested not to be present in the courtroom while the jury viewed and listened toB.C.'s televised testimony. The record indicates that defendant waited in the law library, but it is not clear if defendant had atelevision available for viewing B.C.'s testimony.

When B.C. testified, the trial judge, the State's Attorney, defendant's attorney, the court reporter, B.C., and her mother wereall present in one courtroom and the jury was in another courtroom watching B.C. on the television. B.C.'s testimony beganas follows:

"THE COURT: [B.C.], I need to ask you a few questions. First of all, you remember last week we talked about tellingthe truth? Remember that?

B.C.: Yes.

THE COURT: And you know the difference between the truth and a lie? Correct?

B.C.: (The witness nodded her head.)"

At this point, the circuit clerk apparently came into the room where B.C. was testifying and commented that the "camerawent static." There is nothing in the record to indicate whether the circuit clerk came from the courtroom in which the jurywas watching B.C.'s testimony, there is nothing to indicate exactly what the clerk meant by "static," and there is nothing toindicate what anyone did to correct the problem. The trial judge responded by saying, "Thank you," and resumedquestioning B.C.

"THE COURT: Okay, [B.C.], you remember last week, last Friday, and I talked to you a few minutes, and you aregoing to have to speak loud enough so that Officer Ramsey can hear you. Could you do that?

B.C.: Yes.

THE COURT: You remember you told me you would tell the truth?

B.C.: Yes.

THE COURT: And you remember we talked about the difference between the truth and a lie. Remember?

***

THE COURT: *** You told me you would tell the truth.

B.C.: Yeah.

THE COURT: And you will do that today, too, okay? Okay, I am going to let these attorneys ask you a couple ofquestions?

B.C.: (The witness nodded her head.)"

After the judge's questions, the State began questioning B.C. B.C. testified that defendant gave her a "bad touch," whichmeant, she said, that he touched her in a private place. The trial court interrupted the State's questioning to inform the State'sAttorney that "the picture went off again." When the State resumed questioning, B.C. testified that the "bad touch" occurredin the bathroom of the house where she used to live. B.C. testified that defendant touched her with his fingers under herclothes. When asked what defendant did with his fingers, she stated, "He dug them up inside me." B.C. testified that whenshe told defendant to stop, he stopped, but that he told her not to tell anyone. B.C. testified that she told her mother aboutwhat happened after her stepbrother, Joe, told her mother about it.

Under cross-examination, B.C. testified that when defendant did these things, he was babysitting her. She admitted thatdefendant babysat for her in the past and that sometimes he made her clean her room or the house, which made her mad.She admitted that she and defendant went into the bathroom together to pick out snacks that were kept in a pantry in thebathroom. She admitted that as they were choosing the snacks, she told defendant "no" more than once, in response to hisquestions if she wanted certain snack items. B.C. testified that she was crying when she was in the bathroom, but not whenshe came out.

Joe Miller, B.C.'s stepbrother, who was 11 years old at the time of the trial, testified that he lived with his father, B.C.,B.C.'s mother, and defendant on New Year's Eve 1997. That evening, B.C.'s mother and Joe's father went over to a friend'shouse and left defendant with Joe and B.C. Joe testified that after the parents left, defendant told B.C. to put on hernightgown, and defendant and B.C. both went into the bathroom to get snacks. Joe testified that after 20 or 30 minutes, B.C.and defendant came out of the bathroom. While they were in the bathroom, Joe was in the kitchen about four feet awayfrom the closed bathroom door. Joe described what he heard coming from behind the closed door:

"[B.C.] like a scared cry saying, stop, don't do that, and, stop, Gary, no, and repeatedly."

Joe testified that he did not hear defendant talking, but he heard pants unzipping. According to Joe, when they came out ofthe bathroom, they brought snacks with them. Joe testified, "[B.C.] had red under her eyes, and they were a little wet."

Joe testified that either later that night or the next day, he told B.C.'s mother about what happened.

B.C.'s mother, Tanya, testified that on January 1, 1998, after Joe talked to her, she took B.C. to the hospital. Tanya'stestimony corroborated Ramsey's regarding the statements B.C. made to Ramsey.

Officer Ramsey testified at trial essentially the same as in his offer of proof. Ramsey testified that after he arresteddefendant, Ramsey explained defendant's Miranda rights and defendant signed the form indicating that he understood thoserights. Ramsey's testimony was as follows:

"[THE WITNESS:] [I told defendant I] would listen if he was willing to give a statement. I asked him if he hadtouched [B.C.] in a manner that would be deemed inappropriate by [B.C.] or her parents.

THE STATE: And did he respond to that question by stating, I have done a lot of bad things?

A. Yes, sir, he did."

On cross-examination, Ramsey admitted that defendant did not tell him that he sexually assaulted B.C. and that the policedid not attempt to gather any physical evidence from defendant.

Terry Knolhoff testified that he was in the same cellblock with defendant after his arrest. Knolhoff testified that defendanttold him that defendant was charged with sexual assault but that the State did not have a case against him, because thedoctor who examined the child did not find any evidence of a crime. Knolhoff testified that defendant told him that he gavethe boy (Joe) a cigarette to leave defendant and B.C. alone in the bathroom, and then defendant started "fingering the littlegirl" until the boy came back and he had to stop. Knolhoff admitted that he had been convicted of burglary twice before,that he was in jail at the same time as defendant on a charge of forgery, and that he was released on bond for the forgerycharge in exchange for his testimony against defendant.

Dr. Mohammed Ashgar, the physician who examined B.C. at the emergency room, testified that his physical examinationrevealed no injuries to B.C. consistent with sexual abuse but that it was possible for an adult to digitally penetrate a child'svaginal area without damaging the hymen or causing other types of injury.

Defendant testified that on New Year's Eve 1997, he was living with his uncle, his nephew Joe, his uncle's girlfriend(Tanya), and B.C. When the parents went out for the evening, he stayed home with the children. He testified that he toldB.C. to put on her nightgown, and after she did, they went into the bathroom to the pantry to get some snacks. Defendanttestified that he was in the bathroom for only about a minute and a half and that B.C. said "no" a few times when asked ifshe wanted certain snack items. Defendant testified that he babysat for Joe and B.C. again the next day, and when he askedB.C. to clean her room, she became very angry at defendant.

Defendant admitted he told Ramsey that he had done a lot of bad things but denied he told Ramsey or Knolhoff that hesexually assaulted B.C. Defendant explained that he made the statement to Ramsey, about having done "bad things," inreference to prior arrests. Defendant asserted that he told Ramsey that he did not touch B.C. and that then he asked for alawyer. Defendant denied that he sexually assaulted B.C. and stated that B.C. was fabricating the story, but he did not knowwhy.

The State called Officer Ramsey in rebuttal. Ramsey denied that defendant ever told him that he did not molest B.C.Ramsey claimed that defendant never stated whether he did or did not molest her.

The jury retired to deliberate at 10:35 a.m. At approximately 10:50 a.m., the jury sent out the following note:

"The T.V. kept going out during [B.C.]'s testimony. There were parts of her testimony we did not see. Did the tapepick up all the testimony[,] and if so[,] can we review the tape?"

The judge met in chambers with defendant's attorney and the State's Attorney, but there is no indication that defendant waspresent during this meeting. The judge stated that he and the attorneys "agreed" to the following response:

"When the video camera failed, we stopped the questions of [B.C.] and only began again after it was back on. To thebest of our knowledge, we picked up where we left off, and there should be no gaps in what you heard from what shetestified to."

The trial judge signed the response and returned it to the jury.

Sometime before 4 p.m., the jury sent out a second note, which stated:

"Your Honor

There is great concern over the testimony of [B.C.]. The jury feels the [sic] need a copy of [B.C.]'s testimony becauseof [the] poor quality of the video we watched during the hearing. Without the transcript I'm afraid we may not be ableto come to a decision."

The judge sent the jury a written response, which stated:

"The reason for the delay is that the court reporter is preparing the transcript of [B.C.]'s testimony."

The response was signed by the trial judge.

At approximately 4 p.m., the jury was brought back into the courtroom, and the trial judge told the jury as follows:

"I do wish to indicate to you that, in addition to the preparation of the transcript, certain matters were discussed by theCourt with counsel regarding this. The procedure that we have agreed upon or that I have made the decision on is thatI am going to read the transcript to you."

The trial court did not poll the jurors to find out what they did or did not see or hear during B.C.'s televised testimony. Thetrial judge then read the transcript of B.C.'s entire testimony to the jury, including the judge's preliminary questions askingif B.C. were going to tell the truth. The judge also informed the jury about the times when he and the attorneys waited whilethe equipment appeared to malfunction, which information was not contained in the transcript but which the judge evidentlythought was important enough that he should tell the jury. When the trial judge finished reading B.C.'s testimony to thejury, he sent them back to the jury room to continue deliberations. The judge did not give the jury any further instructions.

At 4:45 p.m., the jury announced that they had reached a verdict. The jury found defendant guilty of predatory criminalsexual assault of a child.

Defendant filed a posttrial motion. At the hearing on the posttrial motion, defendant's attorney argued that allowing the juryto rehear B.C.'s testimony unfairly overemphasized it to the jury. Regarding the televised aspect of B.C.'s testimony,defendant's attorney stated:

"We didn't have a tape that we could review, so we are not sure what the [jurors] saw or didn't see. We don't know ifthey saw three-quarters of the tape or there were just bits and pieces that they missed. So I believe that her testimonywas emphasized over and above that of the other witnesses. In addition, I would note that the [jurors] had made astatement that they may not be able to make a decision in this case if they didn't get to see the testimony."

The State responded to the argument about the review of B.C.'s testimony as follows:

"I think the record is clear on this point. But if it is not, I will make sure it is of record. We had some technicalproblems. There was a tape within the camera. It recorded the direct testimony of the child. While we were in theroom, we could hear the child without difficulty. Her voice was not being picked up by the microphones very well.We were told that the jury could not hear her. We tried to get her to speak up, thought we had the problem corrected.In viewing the tape of the direct testimony, your Honor, the audio part of that tape picked up my voice, but it wasn'tpicking up the child's voice. You couldn't hear the child when we played back the tape. There was a break betweenthe direct and cross. When we went back on the record, I don't know why, your Honor, but the tape did not record thecross[-] examination, so it wasn't like we could play the tape back to the jury. I think we did it the only way wecould."

After the attorneys concluded their arguments, the trial court made its findings:

"[A]s counsel are aware and as I want the record to be aware, there were some substantial problems with thevideotape presentation. *** There was a problem with the sound. There was a problem with the video portion. TheCircuit Clerk came in several times and said there was difficulty in the sound, that the jury could not hear[,] [and][t]hen came back and said that the video went off. And also there is no record of this, but as of last Friday, the ballaststhat were in the lights in the courtroom were repaired; but the ballasts had been making a loud humming sound forseveral months ***. *** Here, I believe, we have a situation that many of the things said by [B.C.] in this room fromthis witness stand they were hearing for the first time when I read to them from the transcript ***. *** So it is notreally overemphasized but in some regards stating for the first time certain portions of the testimony they obviouslyhad not heard. *** I am sure my visage did not engender sympathy for the victim or cause any prejudice to thedefendant. So I believe there were substantial portions of the testimony that they actually did not hear. In fact, Ibelieve [that] one of these jurors' inquiry [sic] was that they felt that a portion of the testimony was blacked out, andthey did not hear a substantial portion of it when, in fact, there were just problems when the TV blacked out whichwere actually picked up from the point where the TV blacked out. So I don't find any prejudice to the defendant inthat regard."

The trial court denied defendant's posttrial motion and sentenced him to 8