Criminal Law FLASHPOINTS September 2023

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | E-mail Matthew R. Leisten

Prior Statements Admissible in Domestic Violence Prosecution When Witness Was Unavailable To Testify

In People v. Moore, 2023 IL App (2d) 220289, the Second District Appellate Court affirmed a domestic battery conviction in which the state was allowed to admit the complaining victim’s statements to a police officer and to her mother under 725 ILCS 5/115-10.2a (“Admissibility of prior statements in domestic violence prosecutions when the witness is unavailable to testify”).

In Moore, the defendant was charged with domestic battery against his girlfriend (victim). The victim answered basic questions on direct examination from the state about their relationship during the trial. The victim then repeatedly answered “I don’t recall” in response to questions about the incident and the other witness. 2023 IL App (2d) 220289 at ¶4. The victim also testified that she did not recognize her written statement and did not remember writing it. However, she admitted that the signature on the written statement could have been her signature. Id.

The state also showed the victim photos of her from the date of the battery. The victim testified that she recognized herself but could not recall if they accurately depicted how she looked that day. The victim did admit that the photos depicted her shoulder. The victim later testified that she went to the sheriff’s office a few months afterward and recanted her written statement. The victim confirmed that she could not remember what happened on the date of the battery. 2023 IL App (2d) 220289 at ¶¶5 – 6.

The victim answered either “I don’t know” or “I don’t recall” on cross-examination when asked about the defendant’s actions or her statements to the police or to the other witness. 2023 IL App (2d) 220289 at ¶7.

The trial court then admitted — over objection — the victim’s statements to the deputy about how the defendant battered her, as well as her written statement that described the battery, under 725 ILCS 5/115-10.2a. 2023 IL App (2d) 220289 at ¶¶8, 10, 15. The victim’s mother also testified that she observed her daughter complete the written statement. 2023 IL App (2d) 220289 at ¶15.

The appellate court held that the victim’s statements to the deputy and her written statement were allowed to be admitted under 725 ILCS 5/115-10.2a. The appellate court focused its attention on §115-10.2a(c)(3), which states in part that a domestic violence victim is “unavailable” if the declarant testifies “to a lack of memory of the subject matter of the declarant’s statement” and if the statement contains “equivalent circumstantial guarantees of trustworthiness.” 2023 IL App (2d) 220289 at ¶25.

The appellate court noted that both the state and the defendant agreed that the victim was unavailable under the statute when she testified she could not recall the events on the date of the battery and that her statements were testimonial. 2023 IL App (2d) 220289 at ¶¶13, 27.

The appellate court next held that the statements did not violate the defendant’s Confrontation Clause rights. The appellate court noted that the victim answered questions about her relationship with the defendant, that she acknowledged photos of her injured shoulder, and that her testimony about going to the sheriff’s office to recant her written statement was proof that she did in fact provide the written statement on the date of the incident. 2023 IL App (2d) 220289 at ¶¶32 – 33.

The court cited the First District’s opinion in People v. Burnett, 2015 IL App (1st) 133610, 46 N.E.3d 1171, 399 Ill.Dec. 671, in which the appellate court held that there was not a Confrontation Clause violation when the victim of an order of protection testified that she could not remember anything from the date of the incident and could not recall making her written statement but was able to recall meeting with a detective, receiving text messages and phone calls from the defendant, and calling the police. 2023 IL App (2d) 220289 at ¶28. The Burnett court stated that the victim was available for cross-examination under Crawford because she still answered preliminary questions and answered questions about the offense in her statement despite her lack of memory regarding specifics. Burnett, supra, 2015 IL App (1st) 133610 at ¶107.

The Moore court next addressed whether the victim’s statements to her mother about the defendant putting his hands on her contained sufficient guarantees of trustworthiness as required under the statute. The court reiterated that Illinois appellate courts had adopted a “totality of the circumstances” test for hearsay statements under the companion statute of 725 ILCS 5/115-10.2 and that the following factors should be considered when determining whether a hearsay statement contains

equivalent circumstantial guarantees of trustworthiness:

(1) whether the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) whether the statement was corroborated by other evidence; (3) whether the statement was self-incriminating or otherwise against the declarant’s interest; and (4) whether there was an adequate opportunity to cross-examine the declarant. 2023 IL App (2d) 220289 at ¶34, quoting People v. Bueno, 358 Ill.App.3d 143, 829 N.E.2d 402, 415, 293 Ill.Dec. 819 (2d Dist. 2005).

Not all factors are required for the statement to be admitted, but there must be other assurances of the statement’s trustworthiness. 2023 IL App (2d) 220289 at ¶34.

In the instant case, the Moore court concluded that the statements made by the victim to her mother that the defendant had put his hands on her contained sufficient guarantees of trustworthiness because the mother had testified that she received a phone call from her daughter on the date of the battery, that her daughter appeared scared and upset at the mother’s house, and that the mother observed red marks on her daughter’s body. 2023 IL App (2d) 220289 at ¶35.

Likewise, the court also concluded that the victim’s written statement had sufficient guarantees of trustworthiness because her written statement contained nearly identical details to her statement to her mother and both statements were made shortly after the incident. 2023 IL App (2d) 220289 at ¶36.

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