People v. Dabney, 2017 IL App (3d) 140915 (October). Episode 433 (Duration 8:44)
Kid didn’t testify about some of the acts.
Defendant’s sole contention on appeal is that his constitutional rights under the confrontation clause were violated when the trial court admitted K.J.’s videotaped statement into evidence at defendant’s trial.
Defendant asserts that K.J. did not appear for cross-examination as required by the confrontation clause as to two of the charges because she made no mention whatsoever during her trial testimony that defendant had allegedly touched her vagina with his hands and had touched her buttocks with his penis.
K.J. took the witness stand and testified that, on the date in question, defendant had touched her breasts and bottom (buttocks) with his hands. While it is true that K.J. did not testify in court that defendant had also touched her vagina with his hands and her buttocks with his penis, that testimony was not required under the confrontation clause for K.J.’s video recorded statement to be admissible.
Defense counsel was given the opportunity to cross-examine K.J., and K.J. answered all of the questions that were asked of her by defense counsel.
The confrontation clause guarantees an opportunity for effective cross-examination; it does not guarantee cross-examination that is effective in whatever way the examining party may want.
In general, a witness at trial is considered to be present, available for, or subject to cross examination when the witness takes the stand, is placed under oath, willingly answers questions, and the opposing party has an opportunity to cross-examine the witness.
More specifically, as to an out-of-court statement, 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.
Thus, there are no confrontation clause problems merely because a witness’s lack of memory precludes the defendant from cross-examining the witness to the extent the defendant would have liked.
In this case defense counsel chose to let the witness’s direct testimony stand and not ask additional or specific questions about a matter does not make a witness unavailable for cross-examination for the purpose of the confrontation clause.
In the present case, after having reviewed the record, we find that K.J. was available for cross-examination at defendant’s jury trial as necessary to satisfy the confrontation clause.
Therefore, under the established law on this issue, K.J. was present for cross examination as to her out of court statements (only the videotaped statement was challenged in this appeal).
What About People v. Learn?
To the extent that our decision in this case can be read as being inconsistent with the appellate court’s ruling in People v. Learn, 396 Ill. App. 3d 891, 898-902 (2009) (a child witness was unavailable for cross-examination when she gave preliminary testimony that she knew the defendant did not like him, but then began to cry and did not answer further questions), the main case relied upon by defendant in support of his argument on this issue, 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.
See also Rolandis
Rolandis G. involved a child witness who, after answering a few preliminary questions, refused to answer questions about the alleged offense. The defendant’s attorney then declined an opportunity to cross-examine the witness. Our supreme court held that out-of-court statements by the child were inadmissible under Crawford, because the child did not testify at trial and there was no previous opportunity for cross-examination. Thus, under Rolandis G., where a child answers some preliminary questions but refuses to answer substantive questions regarding the allegations, the child is unavailable for cross-examination.
We also believe that the facts of Learn are distinguishable from the facts of the present case because in Learn the child victim only provided background testimony in court and did not testify at all about any events that gave rise to the criminal charge against the defendant (the victim did not accuse defendant).
Therefore, for the reasons stated, we find that the admission of K.J.’s videotaped statement did not violate defendant’s constitutional rights under the confrontation clause.
Because no error occurred at defendant’s trial, defendant’s forfeiture of this issue must be honored.