Docket No. 99581.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

In re ROLANDI S G., a Minor (The People of the State of Illinois, Appellant, v. Rolandis G., Appellee).

Opinion filed November 20, 2008.

JUSTICE BURKE deliver ed th e judgme nt of the c ourt, with opinion. Chief Justic e Fitzgerald an d Justi ces Fr eem an, Garman, and Karmeier concurred in the judg ment and opinion. Justice Thomas specially concurr ed, with opinion. Justice Kilbride also specially concur red, with opinion.

OPINION

Eleven- ye ar-old

Rolan dis G. (respondent) was adjudicated delinquent

after a juveni le court judge, in the circuit court of Winn ebago County, found him guilty of the aggra

vat ed criminal sexual assault ( 720 I LCS 5/1 2–14(b)( i) (West 2002)) of six-year-ol d VonJ. The appellate c ourt reversed the adjudication and remanded for a new trial, ruling that the hearsay testimony of two witnesses had been impr

operly admitted under Crawford v. Washington , 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). 352 Ill. App. 3d 776. T he ap pellate court also held that the statute which permitted the hearsa y te stimony

to be admitted into evidence, i.e. , section 115–101 Section 115–10 provi des, in

pertine nt part: “(a) In a prosec

ut ion fo r a physical or sex ual act perpetrated upon or ag ainst a child un

der the age of 13, * ** the following evidence shall be ad

mitted as an exce

ption to the hearsay

rule: (1) testimony by the victim of an out of cou

rt stat ement made by the v

ictim tha t he or s he com

plained of such act to another; and (2) testim

ony o f an o ut of court statemen t made by

the victim describing any

complaint

of such act

or ma tter or d etail pertainingto any act wh

ich is an element

of an offense which is the subject of a prosecution fo r a sexu a l or physical act agai nst that vict im. (b) Such testim

ony s hall onl

y be a dmitted if: (1) The court find s in a hearing cond ucted outside the presence of the ju

ry tha t the tim e, cont ent, and circumstances of the sta temen t prov ide suff icient s afeguards of reliabil it y; and

-2- of the Code of Criminal Procedure of 1 963 (725 IL CS 5/115–10 (W es t2002)), was unconstitutional “to the extent [it] permits the introduction of [testimonial] statements” in violat ion of the confrontation

clause of the United

States Constitution (U.S. Const., amend. VI). 352 I

ll. App. 3d at 781. T he Sta te petitioned this court for leave to appeal, which we granted. In thi s appeal

we are asked to r

eso lve a number of

issues,

some of which were left open by our rec ent decision in People v. Stechly , 225 Ill. 2d 246 (2007).

BACKGROUND OnJuly 1 6, 2002, Ro landis G. was arre sted and c harge d with

the aggravated

criminal sexual assault of Von J. The following day , a delinquency

petition w as filed w

herein i twas alleged that on June 25, 2002, Rolandis had forced Von to per f orm fellatio on him. The petition asked tha

t Rolandisbe declared a delinquent minor and made a ward o f the cou

rt. OnNovember 21, 2002, a trial was held on the deli nquency petition. Prior to tr

ial, the Sta

te filedmotions in limine pursuant to section115–10 (725 IL CS 5/115–10 (West 2002)), 1 seeking to admit(2) The child ** * either : (A) testifies at the proceeding ; or (B) is unavail able as a witne ss and t here i s corr oborat ive evidence of the act which is the subject of the statem ent[.]

*** * * * (e) Statements described i n paragraphs (1) an d (2) of subsection

(a) shall not be exclud

ed o n the ba sis that

they were obtained as a result of interv

iews conducted pursuan

t to a protocol adopted by a Child A

dvoc acy A dviso ry Bo ard as s et forth in subsections (c), (d), and (e) of Sect ion 3 o f the Ch

ildren’s Advocacy

Center Act [ 55 ILCS 80/3] or that an interv iewer or witn ess to the interview w as or is an emp loyee, agen t, o r investigator

of a State’s Attorney ’s office.” 725 I LCS 5/115–10 (West 20 02).

-3- into evidenc e hears ay

st atements Von made

to his mothe

r and to Officer Cure of the Rockford pol ice dep artment, as well a s a videotaped

statement made to Jacqueline Weber, a child advocate at Rockford’s Carrie Ly

nn Children’s Center. The court deferred ruling

on th es e m ot io ns un ti l a ft er he ar in g a ll of th e t es ti mo ny. T he matter procee ded to tria l and Von w as calle d as the f irst witness. Von answered a few preliminary ques tions abo ut himself and made anin-court identification of Rolandis, stating that Rolandis was

someone he had known from the ne ighborhood. However, when asked about events that occur

r ed on June 2 5, 2002, V on resolu tely refused to respond. Even

after he was given a short rece ss to spea k to his mother and a child advocate, Von could not bring hi mself to

answer questions about the allegations con cernin g Rolandis. The court offere d defens e counse l the oppor tunity to cross-examine Von, but she declined to do so. The State then called Von’s mother, Jacqueline M., to the stand. She testified that around 11 a.m. on June 25, 200 2, her six-y ear-ol d son, Von, went outside to play with the neighborhood children. She said Von r eturned h ome short

ly a fter noon, acco mpanied by Ro landis. Uponenterin

g the ho me, Von im

mediat ely went to the

bathroom , wh ile Ro landis remained by the front door of the apartment. She heard Rolandis call to Von and ask him to come back outside, but Von ref used and Rolandis le ft.-4- Jacqueline testified that while Von was in the bathroom

she saw him coughi ng, spi ttin g, and r insi ng h is mouth out with water. She asked Von if something was wrong and Von told her that

his “throat

was hot.” Von

remaine d insid e the apartment and, after a few minutes, r

eturned to the bathroom and started coughing and spitting again. Short ly thereafter, Von came into the living room, whe re Jacqueline was sitting , and to ld her, “ Rolandis ma de me suck his dick.” Jacqueline said she questioned Von and he told he

r that whi le he had been outside that morning Rolandis had force d him into a nearby wooded area and threatened him with a stick if he did not do what Rolandis wanted. Von told her Rolandis called him names and made h im cry. Also, Von said that, af ter he did what Rolandi s tol d him to do, Rol a ndis made Von “pinky swe ar” not to tell anyone

. Jacqueline testified that, because of the “pinky swear,” Vo n did not want her to te ll any

one else what Rola

ndis had done. Neve

rtheless , Jacqueline called the Rockford police department to report what had happened and within 10 minutes Of ficer Ro bert Cure

came to Jacqueline’s apartment to speak to her and Von. Officer Cure was the next wit

ness to testify . He told

the cour t that, on June 25, 2002, he responded to Jacqueline’s call to the Rockford police departm ent and sp oke with Jac queline a nd Von at t

heir apartme nt. Officer Cure testified that Von told him that Rolandis had forced Von

to “suck his dick” and

that R oland is had been h oldi ng a stick in his hand when he forced Von to perform thi s act. Vo n also told Office r Cure tha t he had c hoked whi le he was performing the act and that a fluid ha d come out of Rolandis’ penis. Von told Officer Cure that, af

ter this happened, he came home and be gan to w ash his mouth out with water. The State’s last witness was Detective Paul Swanberg fr om the Rockford police department. He testified that, on Jul y 1 , 2002, he went t o the Carrie Ly

nn Children’s Center in Rockford, a faci lit y whichprovides services to child victims of sexual and severe physical abuse. Von J., accompanied by his mot her, came to the Center that day to be interviewed by

child advo cate J ackie We ber. Be cause Weber was unavailable to testify at trial, Detect ive Swa nberg, who h ad observed the interview, testified rega rding Weber’s interview with Von.-5- Detective Swanber

g testif ied that V on’s inte

rview to ok place in

a room that

w as equipped with a one-way mirror and a hidden audio/videotaping device. In a ccord with Center protocol, Weber’s interv iew with Von w as videot aped. Von and Webe

r were t he only people in the roo m when the

intervie w was c ondu cted. However, Detective Swanberg and another s ta ff person from the Carrie L ynn Children’s Center observed the interview via the one-wa y mirror. D etective Swanberg testified that Weber asked Von to i dentif y various parts of a bo y’s body usin g two an atomi cal dra wings (f ront and back). Weber then wrote down Von’s responses on the drawing s. At trial, Detective Swanberg identified the tw o drawi ngs Weber had marked and they

were placed into evidence. Det ective Sw anberg also testified that when Weber completed he r interviewwit

h Vo n he took a

copy of the vid

eotaped intervie w into custody. The videotape

was placed into an evidence bag and kept at the police department. At trial, Detective Swanberg identified the evidence bag an

d the vide otape. Su

bs equently, the videotape was played in its entirety for the cour t. On the videotap e, Von tol d Weber about the incid

ent with Ro landis, r

epeatin g what h e had told

his mother and Officer Cure, ad ding some

additiona l details i n respons e to We ber’s q uesti onin g. After presenting its evidence, the State asked for a rul i ng on its motions in limine . The court heard the arguments of counsel and then ruled, in accord with section 115–10(b)(1), that thetime, content, and circumstances under wh ic h Von’s sta tements w ere mad

e to his mother, to Officer Cure, and t o Jac kie Weber provided sufficient indicia of relia bil ity. T he court further ruled that, even though Von had been u na ble to answer que stions at tr ial reg arding

Rolandis’

co nduct, Von had “testified” within the meaning of section 115–10(b)( 2)(A). Accordingly , the court held that the testimony of Von’ s mother and Officer Cure reg arding Von’s out-of-court statemen ts, as well a s Von’s vid

eotaped intervie w with Jackie Weber,

were admissible as exceptions to the hearsay rule. The State then rested. Defens e counsel c alle d Rolandis to testify on his own behalf. Rolandis admitted that he had been play ing with Von on June 25, 2002, and that he had walked Von ho me thr ough a wooded area near his home. He denied, however, that he had forced Von to perform any-6- sexual acts and could offer no explanation as to why Von would make up such a story . Defen se counse l a lso ca lled as wi tnesses Ro landis’ mother, Rolandis’ fri end Jessie, and another friend’s mom, Jessica. Thesewitness es p rovided no material evidence with respect to the charged offense. Althoug

h Jessie ha

d been wi thVon and Rolandis on June 25, 2002, Jesse testified that he left before Rolandis walked Von home. Defens e counse l attempte d to ask the oth er witn esses questions about Rolandis’ general characte r, but the State objected to the line of questioning and the evidence was ruled ina dmissible. After hearing counsel’ s arguments, the trial cou rt held it was “convinced

beyond a re asonable doubt” that Rolandis was guilty of committing aggravated cr iminal sexual assault. The cour t adjudicated Rolandis delinquent, made him a ward of the court, and sentence d him to prob ation for

a period of five y ears. Rolandis appeale d his adjud ication. He initia

lly argued, based on section115–10, that (1) the trial court erred in ruling that Von wa s an availab le witness a

nd (2) the

Sta te failed

to meet its burden of producingevidence to c orrobo rate Von ’s out-of court sta tements, pursuant to s ection 1 15–10(b)(2)(B), which it was require d to do be ca us e V on wa s u na va il ab le to te st if y. While Rolandis’ appeal was pendin g, the U nited State s Supreme Courtfiled its decision in Crawford v. Washington , 541 U.S. 36, 158 L. Ed. 2 d 177, 124 S. Ct. 1354 (2004). Rolandis then filed a supplemental brief, claimingthat Von’s statements to Officer Cure and Jackie Web er were

testimonia

l hearsa y a nd, thus, im

p rop erly admitted under Crawford . Rolandis also asked that the appellate court declare section 115 –1 0 constitu tionally invalid to t

he extent that it permits the introduction of testimonial out-of-court statements when the accuse d has h a d no prior opportunity to cross-examine the declar ant, in violation of the c onfronta tion clau se of the United States Constitution (U.S. Const., amend. VI). Onappeal, the State conceded that Von was not a vailable

to testify at trial. As to the remaining issues, the appellate court held that Von’s statements to Office r Cure and Jackie Weber were “testimon ial” and inadmissible under Crawford because Von did not testify at trial a

nd respon

dent had n

o prior op

portunityto crossexamine him. The court also held that, to the extent that section-7- 115–10 permits statements such as these to be admitted into evidence, the statut e is uncon stitutiona

l. The appella

te co urt further found

that Von’ s stateme

nt to his mother was nontestimonial and sufficiently c orroborated. Thus, t he appella te court ruled that

Von’s out-of-co

urt state ment to his mother

was properl

y a dmitted und

er sect io n 115–10 and Crawford. In addition, the cour

t held tha t, for pur poses of d ouble jeopardy, the testimony of Von’s mother was suffi cie nt to support a finding of guilt. Accordingly , the appel l ate cour t rever sed Rolan

dis’ adjudication, but remanded the cause for a new trial. 352 Ill. App. 3d 776. The State sought

leave to appeal pursuant to Supreme Court Rule 315 (210 I ll. 2d R. 315), arguing that review by this cour

t was crucial to affirm the constitutionality of section 115–10 and to consider the proper application of Crawford

insituations involving

you ng victi ms of sexual crimes. We granted the State’s petition. We also granted the National District Attorneys Association/Americ an Pr osecutors Research Institute to file an amicus brief.

ANA LYSIS There are three main issues r aised by the State in this app eal. First, the State

asks that we find the appell ate cour t erred when it ruled on respondent’s confrontation clause claim and held that the videotaped

statement Von

gave to child advocate Jackie Weber was “testimon ial” under Crawford v. Washington , 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). The State asks that we reve rse this ruling and find that admission of the vide otaped statement did not violate respondent’s right of

confrontation. The State maintains that whether a statement is “t es timonial” is a question of law and our review, theref

ore, is de novo. See People v . Hall , 198 Ill. 2d 173, 177 (2001) ( review o f lega

l question s is de novo ). The State’s r

emaining issues ar e prese nte d as alterna

tive clai ms and are raised for

the first time before this court. The State contends that if we affirm the appellate court’s finding that Von’s videotaped statement to Weber is “testimonial” we mus t consi der: (1) whether admission of Von’s

hearsa y st atements t o Web er and Officer Cure

was harmless error, and (2) whether, pursuant to the do ct rine of-8- forfe iture by wrong doing, respondent should be precluded fr o m raising a confrontation

clause claim. The State concedes that neither of these issues was raised in the court below or in its petition to this court for lea ve to appe al, but a sks that we excuse any f orfeiture of t hes e issues to promote a just result and to maintain a sound and uniform b ody

of prec edent.

I. Confrontati on Clause A. Crawford

, Davis , and Stechly In No vember 2 002, when responde nt’s adju dicati on trial too k pla ce, the juvenile court judge employ ed section 115–10 to find Von’s out-of- court sta

tements to

his mother, Officer Cure, and Jackie Weber admissible. S ectio n 115–10 is an Illinois statutory provision which, when enacted

by o ur legi slature, was tailored to co mport with sixthamendment confrontation clau s e requirements (U.S. Const., amend. VI) as

delineated

in Ohio v. Ro berts , 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. C t. 2 531 (1980). See People v . Stechly , 225 Ill. 2d 246, 2 64 (2007). Under Roberts , it was not a violation of the sixth amendment

confrontation clause t o ad mit out-of-court hearsay statemen ts into evidence as long as thestatements were found to be reliable, either because the evidence fe ll within a firmly rooted hearsay ex ception or because there were other “particularized guarantees of trustworthiness.” Roberts , 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539. In2004, whil e respon

dent’s a ppeal wa s pending

in the app ellate court, the Unit ed Stat es Supreme Court overturned Roberts and devised a fundamentally

newprocedure for analy

zing confrontation clause claims. See Crawford v. Washington , 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). In Crawford , the defendant claimed that his sixth amendment confrontation rights had been violated b ecause his wife’s tape-recorded statement to police wa s admitted into evide nce at de fendant ’s trial a

lthough she did

nottestify at trial due to defendant’s invocation of the spousal privilege. Afte r engag i ng ina lengthy

examination of the h istorical underpinnings of the confrontation

right g uarante ed by

the sixth ame

ndme nt , the Court concludedtha t when an

out-of- court sta

tement is “

testimonia

l” in nature “the only

indicium of

reliabil ity s

ufficie nt t o satisfy-9- constituti onal demands is the one the Constitution actually pres cribes :
co nfront ation.” Crawford , 541 U.S. at 68-69, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Thus, the Court held that testimonial out-of-court statements may be a

dmitted as evidence at trial only if the declarant testifies or the declarant is unavailable an d th e defendant has had a prior opportunity to cross-examine the declarant. Crawford

, 541 U.S. at 53-54, 158 L. Ed. 2 d at 194, 124 S. Ct. at 1365-66. The Court explained: “Where testimonial statements are in volved, we do not think the Fra me r s meant to leave the Sixth Amendment’s protection

to the vagaries of the rules of evidenc e, much le ss to amorphou s notions of

‘reliab ilit

y.’ Cer tainly none of the authorities discussed above acknowledges any general reliabil ity exception to the common- l aw rule. Admitting statemen ts dee med reliable by a judge is fundamentally

at odds with the right of confrontation. To besure, the Clause’s ultimate goal is t o ensure reliabil ity o f eviden

ce, but it is a procedural rather

than a sub stantive g

uarante e. I

t command s, notthat evidence be reliable, but

that reli ability

be asses sed in

a particular manner: by testing in the crucible of cross-examination. The Claus e thus re flects a judgment, not only about the desirability of re liable evidence (a point on whichthere could be l ittle dissent), but about h ow relia bility

can best be determined.” Crawford , 541 U.S. at 61 , 15 8 L. Ed. 2d at 199, 124 S. Ct. at 1370. The Court then concluded, “[w]here nontestimonial hearsa y is at issu e, it is wholly consistent with the Framers’ de sign to afford th e States flexibility in their devel opment of hearsay law–as does R obert s , and as wo

uld an app

roach that exempte d such sta tements fromConfrontation Clause scrut in y altogether. Where testimonial evidence is at issue , howeve r, the Sixth A

mendme nt demands what the common la

w requir ed: unava ilability and a prior opportunity for cross-examination.” Crawford , 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Alth ough the Crawford C ourt held that sixth amendment pr otections turned on whether or not the out-of-court stat ement s sought to be admitted are “testimon ial,” the Court did no t attempt to define what it meant by “testimonial” hea rsay. I t held, however , that,-10- at a minimum, i

tmust includ

e stateme nts made in

the cour se of police interrogation, as well as statements that a re the result of other ty pes of formal qu e stioning–such as testimony given at a preliminary he ar in g, be fo re a g ra nd ju ry, or at a former trial–where there was no opportuni ty for defendant to cross-examine. Crawford , 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. As noted above, in the

case at bar the a ppell ate cour

t relied on Crawford to reverse respondent’s a djudicat ion, findi n g t hat Von’s out-of-court statement

to Officer Cure and his videotaped statement to Weber we

re “tes timonial”

and, ther

efore, responde

nt’s sixth amend ment confrontation rights were violated by their admission. The State time ly f

iled a petition for

leave to appeal from the appella

te court’s judgment. Initially , we h eld the State’s petition because we already had before us a factually

similar case, People v

. Stechly , No. 1–01–2869 (2003) (unpublished orde r under Supreme Court Rule 23) , whichwe believed might resolve the issues raised in the case at bar. While Stechly

was before us, t he United States Supreme Court decided Davis v. Washington , 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006), which provided additional insight into what the Court mea

nt by “testimon

ial” stat ements. In Davis , the Cour

t consid ered whether statements made to law enforcement

personne l in two sep arate cases w ere “te stimonial”

and, thus, subject to the requi rements of the sixth amendment confrontation

clause. The first

case involved statements made during

a tape-r ecorde d call

to a 911 emergency

operator and

the second case involved statements made by the de fendant’s wife to police officers at the scene of

a domestic

bat ter y aft er t he a lt erc ati on h ad e nde d. In both cases th e stateme

nts w ere he ld to be nontestimonial and admitted into evidence although the declarant did not tes tify

at trial. Onreview, the Court held that the stateme nts made to police officers at the scene of

the domestic altercation were testimonial, but that the statements made on the 91 1 tape recording were not. The distinction was not based on the 9 11 ope rator’s status because the Courtassumed that the 911 operator was an age n t of th e police. Rather, the Court explained that a stat emen t to law enforcement personne l will be deemed “nontestimonial” if the circumstances objectiv ely

indicate that

the prima ry purpose of the inte

rroga tion is to gather information to meet an ongoing emerg ency. On the other hand,-11- sta tements to law enforcement will be deemed “testimonial” i f circumstanc es objectively indicate the re is no ongoing emerge

ncy and the primary purpose

of the interrogation is to establish or provepast events to identify or

convict the perpetrator. Davis , 547 U.S. at 826- 30, 165 L. Ed. 2d at 239-40, 126 S. Ct. at 2276. Withthe bene fit of bo th the Crawford and Davis opinions, t his court filed its d ecision in People v . Stechly , 225 Ill. 2d

246 (20 07) . In Stechly , the defendant challenged his convi ctions for predatory sexual assault of a child and aggrava

ted criminal sexual assault. He claimed that, pursuant to Crawford , his sixth ame

ndment confronta

tion rig hts had been violated

by t h e admission of out-of-court statements the unavaila ble witness, five-ye ar-old M.M., had made to th

ree persons: Joan G., M.M.’s mother; Ann Grote, a clinical specialist and head of the child-abuse team at the ho spita l where M.M. was taken for examination; and Perry Y ates, the social worker at the school where M.M. attended kindergarten. Ina p lu ra li ty d ec is io n, St ec hl y’ s c onvictions were reversed and the matter remanded to the circuit court with directions that a hearing be held on the issue of

forfeiture by

wrongdoing. Apply

ing Crawford to the defendant’s confrontation clause claim, we first looked at the th res hold issue, i.e. , whether the out-of-court statements were “testimonial.” Six justices a greed that M.M.’ s statem ents to her mother were nontestimonial and that her statement s to Grote and Yates were te stimonial. Howeve r, three of the six jus tices ( Justices Freeman, Fitzgerald and Burke) held that admiss ion of the testimonial statemen ts could not be consider edharmless error and that reversal

was required, while the other three justices (Chief Justice Thom as and Justices Garman and Karmeier) dissented from the reversal, holding t hat the admission o f the test imonial he arsay

did not amo

unt to

revers ible error “ in light o f the ove rwhelmin g evide nce ag ainst defendant that was properly

admitted.” S techly , 225 Ill. 2d at 330 (Thomas, C.J., dissenting, joined by Karmeier, J.). Justic e Kilbride agreed that revers a l was required, but reached that conclusion for

r easons that wer

e diffe rent from those expr

essed by the plura

li ty

. Justice Kilbride

held that

M.M. ’s stat ements should have been excluded pursuant to section 115–10 because the evidence did not adequa tely show that M

. M. was “unavailable” to testify . Also, employing

an analysis that did not

take into consideration the age of-12- the child-declarant, Jus tice Kilbride found tha

t all of M.M.’s statemen ts, includ ing those made to he

r mother, were te stimonial. After we filed our decision in Stec hly , w e granted the State’s petition for leave to appeal in the case at bar

. Crawfo rd , Dav is and Stechly provide us with an understanding of the current parametersof the confron

tation cla use gua rantee . Keepin

g them in min d, we now turn to the case at bar.

B. Admissibility of Von’s Videotaped Statement to Weber

1. Forfeiture At the outset, the State presents a brief, one-paragraph argument contending that respondent forfeited the right to raise a confrontation clause claim by his failur e to obje ct at trial, on confr ontation c lause g rou nds, to the admission of hearsay testimony. We rejected a n identical a rgument in Stechly and for t he reas ons expres sed ther ein reject t he State’ s claim he

re as we ll. As we e xplained in Stechly , Crawford announc ed a fund amentall y newrule regarding the e ffect of the confrontation cl ause on the admission of hearsay

statements and, thus, the rule should be applied retroa ctively to all cases pending on direct review or not y et final when Crawford

was decided. Stechl

y , 225 Ill. 2d at 268, quoting People v. Sisava th , 118 Cal. App. 4th 1396, 1400, 13 Cal. Rpt r. 3 d 753, 756 (2004). Moreover, as we recognized in Stechly , “it would be manifest ly unfair to hold defe

ndant to ha

ve waive d claims by not raising them at trial when

those cla ims are based on a rule which was only announced during the pendency of his appeal.” Stechly , 225 I ll. 2d at 268. Th

is reaso ning is e qually

applic able to the case at bar. Here, too, fairness requires a finding that responde nt did no t f

orfeit the right to

raise a confron tation cla use clai m by his failur e to make

a more specific objection at trial to the admission o f hear say te st im on y.

2. Videotaped Statement to Weber: Testimonial or Nontestimonial The State ag

rees tha t, pursua nt to Stechly , Von’s sta

tement to h

is mother was nontestimonial and his statement to Officer Cu re was testimonia

l. The State ’s only

challen ge is to the appellate court’s determination

that Von’ s videota

ped state ment to Weber was-13- testimonia

l. The State asks that we reverse this det e rmination, maintaining that the videotaped statemen t is nontest

imonial be cause neither Von nor We

ber was acting to a substa

ntial deg ree to produce

a statement for future trial . I n support o f this con tention, the State maintains that: (1) th ere is no evidence to show Weber’s intent because Weber did

not testif

y a t tria l, (2 ) in general, the primary

concer n of child a

dvocate s and chil d advoca cy center s, such as

t h e Ca rrie Ly nn Children’s Center here, is the phy sical, mental an d emotional welfar

e of chil d victims; ( 3) Weber’s interview occurred prior to the time that Rolandis was arrested and the juvenile petition

was filed, ind

icating that the p

urpose of the inter view was to asse ss whether abuse occurred, rather than prepare for trial; and (4) Weber

was not acting as an agent of law e nforce ment bec ause, as a child advocate, her primary

focus was the best interests of the child. The St at e a dm it s t ha t a ma jo ri ty o f c ourts in other jurisdictions have held state

ments m ade to child advocates, under circumstances similar to those here, to be testimonial. However, the State argues that thesecases are distingu

ishable or wrong ly d

ecided. Further , the State insists that the fact that Weber conducted her videotaped int erview with Vonunder the observation of a policeofficer does not mean that Weber was acting as an

agent of law enforcement. The State asks that

we take into consideration the fact that Webe r ’s interview was conducted

as p art of a statutorily e ncouraged, multidisciplinary response to child sexual abuse , the purp ose of wh ich is to re duce trauma to child victi ms. Th e Sta

te co nten ds tha t a fa ilure to re cog nize thesemultidisciplinary interviews as nontestimonial will “di s courage colla bor ation and video-taping, which is important in limiting the trauma to which children ar e subjecte d when the y a re involv ed in such investigations.” Fi na ll y, the State contends that, because Weber’s interview wa s notpolice in

te rrogat ion, we may consider the viewpoint of the declar ant, six-year-old Von J., in determining whether the statement is testimonia

l. The Stat

e urge s us to find

that, in the

caseat bar, Von’s videotaped statement i s nontestim onial bec ause a r

easonab le six -year

old would not have anticipated that his statement to Weber would be used for a future prosecution. Inresponse, Rolandis argues that the circumstanc es of this c ase objectiv ely

indicate that Weber wa s acting as an agent of the police-14- and that the primary purpose of her interview was to es tablish or prov e past events that would be relevant in a future cr imina l prosecution. Thus, respondent conten ds t hat the appellate court

correc tly ruled that the videotaped statement to Weber was testimonial and should not have been admitted. We agree. I n Stechly , the plurality devised a f ramework for determining whether an out-of-court statement is testimon ial. It held that a testimonial statement is one w hich is (1) made in a solemn fashion, and (2) inten ded to establish

a particular fact. I

n general, a statement is testimonia

l if the decl arant is acting in a manner analog ous to a witness at tr ia l, describing or giving information re garding events that have already

occurred. Stechly , 225 Ill. 2d at 281-82 . Of course, this framework

begs the question, “Whose intent is d eterminative–the questioner

or the declar ant? ” After review ing Crawford and Davis , the Stechly

plurality con clude d that, when the statement under consideration

is the product of questioning , either by the police or someone acting on

the beha lf of law enforc ement, it is the objective intentof the que stioner that is d eterm inative. Stechly , 225 Ill. 2d at 284-85. However, wher e statements are not the product of law enforcement

interrogation, the proper f ocus is on the intent of the declarant and the inqu iry should be whether the objective circumstances w ould lea d a reas onable pe rson to conclude that his statement could be u sed ag ainst the d efenda nt. Stechly , 225 Ill. 2d

at 288-89. Moreover, the plurality held that, when

the declar

ant is a child, the child’s age may be “one of the obj ective c ircumsta nces to be taken into account in determining whether a reasona ble person in his or her circ umstances would have understood that his or her statement would be avail able for use at a later trial.” Stechly , 225 I ll. 2d at 295-96. Applying this framew ork to the case at bar, w e first mu st determine whether Von’s tape-recorde d i nt erview with Weber resulted in a testimonial stat

ement, i.e. , whethe

r it was so lemn statement made with

the inten t of estab lishing f

acts regard ing past events. Pursuant to Stech ly , the f irst step i

n this inquir

y is to determine whether Weber was acting as a representative of the police when she obtained Von’s re corded s tatement

. As the State

points out, the Carr

ie Ly nn Children’s Center, where V on’s interview took place, is one of several acc redited c hil d-15- advocacy center s in this sta

te “esta blished to coordina te the activities of the various agencies involved in the investigation, prosecution and trea tmentrefe

rral of ch ild sexual a

buse .” 55 IL CS 80/4 (a) ( We s t 200 2). Weber, a child advocate and employ ee of the Center , interviewed

Von in furtherance of

th e “ in te rd is ci pl in ar y, coordinated sys tems approach to the investigation of child sexual abuse.” See 55 IL CS 80/4(c) (1) (West

2002). Although Weber did not testify and the record is silent a s to the actual purpose of her interview with Von, the record, from an objective viewpoint, indicates that the interviewtook place at the behest of the police so that a more detailed account of the alleged sexual abuse could beobtained by a tra ined interviewer and memorialized

on vide otape . Moreover, because the interview wa s witnessed by

Detective Swanberg and a c opy of the videotape d interviewi mme diately turned over to him “as evidence” upon completion of the interview, the objective circumstances indicate that Vo n’s statement was the product of an interroga tion, conducted o n behalf of the pol ice, inte

nded to g ather in formation and esta blish past acts for future prosecution. Clearly , then, it must be concl ud ed that Weber was acting as a repre sentative of the polic e, assisti

ng in their investigation

of an alleged child sexualabuse, when she interviewed Von. It is true that the purpose of this type of i nter di sc ip li na ry, collaborative protocol

is to “mini

mize the stres s creat

ed for the child and his or her family by

the investigatory

and judicial process, and

to

ensure that more effective treatme nt is provid

ed for th e child a

nd his

or her family.”

See 55 IL CS 80/3(d) (West 2002). Howeve r, there is absolute ly

no indication that, in the case at bar, Weber’s interview of Vonwas conducte d, to a substantial degree, for trea tment rather than investigative purposes. Accordingly , we are compelled to conc lud e tha tVon’s videotaped statement was testimonial in nature a nd , because Von did not testify

at trial and there was no prior o pportunit y for cross-e xamination, it

wa s improperly admitted in violation of respondent’s confrontation rights. The appe llate cou

rt’s judg ment in this regard must be affirmed. We note, add

itio nally, t

hat our conclusion here is supported by decisions render

ed in othe r jurisdictions. As th e State c oncede s, “the majority of court s to consid

er the qu estion ha ve found statemen ts to child abuse ad vocates such as so cial wor

kers to be testimonial.” One-16- suchcase is State v. Snowden , 385 Md. 64, 867 A.2d 314 (20 05) . In Snowden , a

social worker for Montgomery County Child Protective Services in Maryland interviewed three minors (two 10-year -olds and

an8-year -old) who were victims of sexual abuse. The interview took place at the Child

Assessment Center in Rockville and was part of a joint investigation

with the Montgomer

y Co unty police de partmen t. The Court of

Appeals of Mary land held that the st

atements made to the so cial w orker ( Wakee l) were testi moni al, st ating:

“[W]efind that the struct ure, location, and style of the interviews actually support the notion that the childre n’s interviews were a formal and structured interroga tion where the response s reasonably

would be e

xpected to be used a

t a later trial. Th e fact that th e in te rv ie ws we re co nd uc te d b y a licensed sexual abuse investigator, rather than a police officer , is of little persuasive weight in our analysis. *** Wakeel’s role as interviewer was little different from the role of a police officer in a routine police interrog ation. Wakeel beca

me inv olved only after

being contacted by

the Montgomery

County Police De

partmen t, whichinformed her

o f the substance of the children’s accusations. Be cau s e Wakeel was performing her res ponsib ilities in response and at the behest of law enforce ment, she became, for ConfrontationClause analysis, an a gent of the po lic e department.” Snowden , 385 Md. at 85-86, 867 A.2 d at 32 6- 27. Si mi la rl y, in People v

. Sisavath , 118 Cal. App. 4th 1396 , 1402, 1400, 13 Cal. Rptr. 3d 753, 757, 756 (2004), the videotaped statement of a four-year-old sex abuse victim was held to be testimonial. In that case, the child was interviewed by a “forensic interview

specialist” at the Fresno Coun ty M

ulti-Disc iplinary

Inte rview Ce nter, “a facility special ly designed and staffed

for interviewing children suspected of being v ictims of

abuse.” The interview was observed by a district attorney and a police officer. The court held that the vide o taped state ment o btain ed at t his i nterv iew was testi moni al, st ating: “Under these ci rcumstan ces, it does not matter what the government’s actual in

tent was i n setting up the in terview , wh ere t he interview took place, or who employ ed the interviewer. It wa s eminentl y r easonab le to expec

t t hat the2 In Hernandez , the court cited a num ber of cases from various jurisdictions, includ ing Snowden and Sisavat h , which we hav

e cited above, wherein courts have foun

d statements to be

testimonial under facts similar to those present here. S ee Hernandez , 946 So. 2d a t 1284-85.

-17- interviewwould be available for use at trial.” Sisava th , 118 Cal. App. 4th at 1403, 13 Cal. Rptr. 3d at 758. Mo re recent

ly, a Florid

a appell ate cour

t reach ed the sa

me conclusionin Hernandez v. Fl orida , 9 46 So. 2d 1270 (Fla. App. 2007). 2 In Hernandez , an officer investigating the alleg ed sexual abuseof a child took the child and her parents to the local hospital. At the hospital, a nurse, who was a m ember of the Child Protection Team (CPT), physically

examined the child and questioned her and her parents about the alleged

abuse. Because a wee

k had passed since th e alleged abuse had occurr ed, no specimens were taken and n o treatment was provided. Also, no referral was made to a physician for follow-up treatment or examination. The nurse’s

testi mo ny r egard

ing the c

hild’s re sponses to questioning was admitted at trial pursuant to state statute. However, on review, the court held that the child’s statement to the nurse was testimonial and

the nurse’s testimony was inadmissible because he r interviewwith the child and th e child’ s parent s w as “the functional equivalent

of a police interrogation.” Hernandez , 946 So. 2d at 1280. The court noted four factors that

contributed to its determination: (1) the nurse, as a member of the CPT, was an arm of law enforcemen

t, statutori ly bound to work with the police to provide various services “directed to the detection, i nvesti gation, and prose cution of child abuse”; (2) the nurse was working in concer t with the police, as evinced by the fact that after her examination and questioning of the child, the investigating officer, who had r emained at the hospita l during the inter view, made t he deci sion to cha rge the defendant; (3) the primary

purpose o f the exami

nation an d question

ing was to gather facts for a pot entia l prosecution; and (4) when the interview took place the child was in a place of safety and there was no indication of an ongoing emerge

ncy. Hernandez , 946 So. 2d at 1280-82. Thesesame factors are present in the ca se a t ba r. The child advoca te who interviewed Von was employ ed by a lice

nsed advocacy-18- center and, pursua

nt to th e Childre

n’s Advoc acy

Center A ct, this Center not only worked in concert with other agencies involved in the investigation

and prosecution of child sexual abuse, it was obligated to share in formation it obtaine d with the p olic e. S ee 55 I LCS 80/4 (c)(2) (West 2002). Respondent was not charged until after Weber’s interview took place and Detective Swanberg had retained

a copy of the vid

eotaped intervie w as evid ence. F urthermore, sin c e there is no indic ation tha

t the primary purpose of the inter view was for treatment and because Von was nolonger inany dang er from the responde nt, it must be concluded that the main purpose of the interviewwas to gather infor mation about past events for potential future prosecu

tion. Thus, here, as in Hernandez , the only conclusion

we can rea ch is that the child’s statement to the child advocate was testimonia

l. We are not unsy

mpathetic to the State ’s conce

rn that child

abuse victims are oft

en unava ilable totestify beca

use of their tender years and, for that reason, “ Crawford is incompatible with the realities of child abuse prosecutions.” However, the Court in Davis , when faced with a similar argument in regard to victims of dom est ic violence, stated, “We may

not, however, vitiate constitutional guarantees when they have the effect of allowing the g uilty to go fre e.” Davis , 547 U.S. at 832-33, 165 L. Ed. 2d

at 243-44, 126 S. Ct. at 2279-80. Thus here, too, we ma y n o t abridg e constitu tional g uarante es simply

because they are a hindranceto the prosecution of child s exual abus e crimes

.

C. The State’s Alternative Claims 1. Procedural Default and Forfeiture As noted above, the Sta

te never argued in the

appellate court, or raised as an issue in its petition for leave to appeal, that the admission of Von’s out-o f-cour t stat ement s to W eber an d Offi cer Cu re, th ough improper, was harmless error. Nor did the Sta

te argue below, or in its petition for leave to appeal, that respondent should be prec luded from raising a confr ontation clause claim pursuant to the doctrine of “forfeiture by wrong doing.” The State conced es that by raising these issues for the f

irst time in

its brief before this court, the issues may be deemed forfeited and we need not consider them. The State, however,-19- asks that we excuse the f orfeitur e and co nsider th e i ssues on th eir merits. Respondent

does not contend

that we should forgo addressing the State’s alterna

tive clai ms becau se they

have be en proce durally defaulted due to the

failure to raise them below. Nor does respondent object to reaching the merits of the State’s claims on the ground that the issues were not included in the petition for leave to appeal and are being raised for the first time in the State’s brief before t his court. Thus, respondent has forfeited any proce dural default or forfeiture by the State. Neve rth eless, in recently f iled opinions of this court, the failure to include a claim in a

petition for leave to appeal has been raised sua sponte by this co ur t and relied upon to deny c onsideration of the claim. See, e.g. , People v . Whit field , 228 Ill. 2 d 502 (200 7); People

v. Robinson , 223 Ill. 2d 165 (2006). Accordingly , one could interpret thesecases as suggesting tha t the failure to include an i s sue in a petition for lea

ve to appeal s tands as a

n absolute

bar to re view by this court. Such an interpretat ion of these cases, however, would be incorre ct. This cour

t has long held that the failu re to ra ise an issu

e in

a petition for leave to appealis not a jur isdictiona l bar to this court’s ability to review a matter but, rather, “a principl e of administrative convenience.” See Dineen v. City of Chicago , 125 Ill. 2d 248, 265-66 (1988). In other word s, this court alway s has the authority to review

a matter not properly pr

eserved, or may

decline to do so, as a matter of discreti on. Althou

gh that d

isc ret ion should not be exercised

ar bi tr ar il y, review

of an issue not

specifically me

ntioned in a petition for leave to appealwill be appropriate when that issue is “inextri cably intertwined” with other

matters properly

before the cour t. Hansen v. Baxter Healthcare Corp. , 198 Ill. 2d 420, 430 (2002). Ina situation, such as here, where a court of r eview d etermines t hat certain evidence was improperly admitted at trial, it is en tirel y appropr iat e to conside

r whethe r any exception s to inadmis sibility apply and whet

her the a dmi ssion o f evidence, though error, wa s h armless. These matters are inextricably intertwined with th e determination

of whether the error that occur redrequire s rever sal. Thus, we consider the State’s alternative claims de spite its f ailure to present them in the

petition f or leave to appea l.-20- 2. Forfeiture by

Wrongdoing The State ask s us to find that re spondent f

orfeite d the rig

ht to chall enge the admission of Von’s testimonial hearsay statements on confrontation

grounds because respondent’s wr ongdoi ng c aused Von’s una vailab ility. The State acknowledg es that, in Stechly , this court was split on the prop er appli ca ti on of th e f or fe it ur e- byw rong doing doctrine

–four jus tices he ld that a d efenda nt forfe its his confrontation

rights only if he a cts wit

h the intention of causing the witness to be unavailable to testify and that i t is insuff icient to show that the wron

gful conduct wa s causally linked to th e witness ’

un av ai la bi li ty; two justices held that it was unnecessary to show that the accuse d intende d to prevent the witness from testifying when he committed

the wrong. The State contends, h ow ever, that even the Stech ly plurality recog

nized that most courts have held that inten t need not be proven and may

b e presumed when t

he wrongdoing is murder. The State, therefore, asks that we expand on this concept and hold thatin child sexual abuse cases, as in murder cases, intent may be presumed. The State explains its rationale, sta ting, “i n child sexual abuse cases, the abuse

may well cause th e victim

to be unavailable to testify at trial *** b ecause

of trauma , fear, or the victim ’s predi sposed incompetence to testify.” The State also c ites public policy and the “high importance” society places on protecting

children as additional

reasons for per

mitt ing courts to presume an intent to prevent the witness fromtestifying whe n applying the

forfeiture-by

-wrongdoing doctrine in child sexual abuse

cases. As an alternative argument, the State contends that, even if we decline to hold tha

t intent ma

y be presume d in child s e xua l abuse cases, we should find that intent was proven in the case at bar. As evidence that

respondent intended to prevent Von from testifying, the State points to the evidence that respondent made Von “pinky swear” not to tell anyone about the abuse

. The State’s arguments concerning f orfeiture by

wrongdoing were present ed in its brief, w

hich was submitted prior to the time that the United States Sup reme Cou rt released its decision in Giles v. California , 554 U.S. ___, 171 L. Ed. 2d 488, 128 S. Ct. 2678 (2008). Giles de mo ns tr at es th e p ro pe r a pp li ca ti on of th e f or fe it ur e- bywrongdoing

doctrine as i t relates to an accused’s sixth amendment-21- confrontation

ri ghts and resolves the debate over the nece ssity of proving in ten t. Inlight of

Giles , we must reject the State’s a rgumen ts concerning

the application of forfeiture by wrongdoing in the case at bar. I n Giles , the defendant shot and killed his ex-girlfriend, Avie, outside defenda

nt’s gr andmothe r’s h ome. Alth ough A vie was sh ot six times, the defendant claimed self-defense , testifying that Avie was jealous, that he knew her to have vi olent tendencies , and that Avie had come to his grandmother’s that day and threatened to kill him and his girlfriend. The prosecution introduced statements Avie had made to a police officer three weeks prior to the shooting when the officer h ad responded to a domestic violence call. The office r testified tha t Avie told him defendant accused her of hav i ng an affair and had choked her, punched her

in the head, and

threatened her with a knife, saying that he would kill her if he found that she was cheating on him. After defendant was convicted, he challenged the admission of Avie’s out-of-court statement to the officer. On review , t h e Califor nia Supreme Court rule d that the

state ment wa s admissible under Crawford pursuant to the doctrine of forfeitureby wrong doing. The court held that

defenda nt had for

feit ed his right of confrontation because he committ

ed th e m urder, an intentional criminal act, that rendered Avie unavailable. The United States Supreme C ourt reve rsed, finding that the theory of forfeiture by

wrongdoing, which wasemployed by t he California Supreme Court to find the out-of-court statement admissible, was not

a recog nized exce

ption to the

sixth amendment conf rontatio n require ment. The Court held that at common law an unconfronted testimonial statement could not be admitted without a showing that the defendant

intended to prevent

the witness from testifying

. Giles , 554 U.S. at ___ , 171 L . Ed. 2d at 4 97, 128 S. Ct. at 2684. In other words, according

to the Court, for forfeiture by wr on gd oi ng to ap pl y, the evide nce had to show tha t the def endant e ngag ed in witne ss tamperingor some type of c onduct des i gned to prevent the witne ss fromtestifying, thwa

rt the judicial process, or procure the witne ss’ abse nce from trial. Giles , 554 U.S. at ___, 171 L. Ed. 2d at 495- 96 , 128 S. Ct. at 2683. The Court further noted that it was not an accepted practice at the time

the Constit

ution was a

dopted to a

dmit statemen ts-22- on the ground that the defendant’s crime wa s to blame for the witness’ absence. The Court stated: “The notion that judges may strip the defendant of a right that the Constitution

deems es sential to

a fair tr ial, on the basis of

a prior judicial

assessment that the de fendantis guilty as charged, does not si

t well with

the rig ht to trial b y ju ry . It i s akin, one migh

t say , to ‘dispe

nsing wi th jury trial b ecause a defendant is obviously guilty .’ Crawfor d , 541 U.S., at 62.” (Emphasi s in original.) Giles , 554 U.S. at ___, 171 L. Ed. 2d at 499, 128 S. Ct. at 2686. The Court’s majority also rejected a suggestion by

the dissent that special confron

tation rul es might

be applic able based on the status of the victims, for example, where the victims are women in abusive relationships. The Giles majority stated:

“The dissent c loses by

pointin g o ut that a f

orfeitur e rule whichignore s Crawford would be p articula

rly he lpful to

wom enin abusive

relation ships–or a

t least particu

larly helpfu l inpunishi ng their

abusers. Not as helpful as the dissent sugge sts, si nc e o nl y testim on ial statements are excluded by the Co nfronta

tion Clause . Stateme

nts to frie nds and neighbor s about abuse and intimidation, and statemen ts to phy sicians in the course o f rece iving tr

eatment w

ould be exc luded, if

at all, only by hearsay rules, which are free to adopt the dissent’s versionof forf

eiture b y w

rongdo in g. In any

event, we are puzzled by the dissent’s dec ision t o devote i ts peror ation to domestic abuse ca ses. I s th e su ggestion that we should have

one Confrontation Clause (the one the Framers adopted and Crawford describ ed) for

all other

crim e s, but a spe cial, improvised , Co nfrontation Clause for those crimes that are freque ntly directed against women? Domestic violence is an intolera ble of fense that legislatures may choose to combat throug h man y me ans–fro m increa sing cr iminal penalties to adding resources for investigation and prosecution to funding

aware ness and prev ent ion campaigns. But for that serious crime, as for others, abridging the co nstitutional rights of criminal defendants is not in the State’s arsena

l.” (Emphasis inoriginal.) Giles , 554 U.S . at

___ , 17 1 L. Ed. 2d at 505-06, 128 S. Ct. at 2692-93.-23- The Giles majority concede d that domestic violence might be a relevant factor indetermining whether

the forfeiture-by

-wrongdoing excep tion is app licab le, st ating: “Acts of domestic violence often a re intended to dissuade a victim from res orting t

o outsid e help , and include conduct designed to prevent testimony to police offic er s or cooperation

in criminal prosecutions. Where such an abusive relation ship culminates in murder, the evidence may support

a finding that the c

rime expre ssed the i

n tent to isolate the victim and to stop her from reporting abuse to the authorities

o rco operating with a criminal prosecution–render ing her prior statements admissible under the f o rfeiture doctrine.” Giles , 554 U.S. at ___, 171 L. Ed. 2d a t 506, 128 S. Ct. at 2693. Based on the above, the Giles majorit y ma kes clea r that, regar dless of how expedient

or beneficial it might

be to the v

ictim to permit his or her unconfronted, testimonial hearsay to be a dmitted at trial, the rig

ht of conf

rontati on g uaranteed an accused by our Constitution must take precedence. The doctrine of forfeiture by wrongdoing

may not be employ

ed to deny

an accu sed his confrontation

right absent evidence that, when committing

the crime

oro ther wrongdoing, the acc used was motivated by the de s ire t o prevent the witne ss from te stify

ing ag ainst him a

t trial. Applying Giles to the case at bar, we find no evidence that respondent

ever committed any

wrongdoing with the inten ded purpose that Von be una

vailable to testify at trial. It istrue that sexual abusers sometimes select children as their victims because children

are gener ally more vulnerable

to threa ts and co ercion due to their age and imm at ur it y. However, in the case at bar, there is no indication that when respondent sexual assaulted Von, hi s assault was motivated i n any way by a desire t o prev ent Vo n from bearin g witn ess aga ins t hi m at trial. We recognize that, according to the r ecord, after respondent

assaulted Von h e m ade Von “ pinky swear” not to tell anyone what happened

in a n attempt t

o keep his

crime a s ecret. However, there is n

othing in the rec ord to indi cate th at wh en respondent

ext racted the promis e from Von, he did so in contemplationof some future trial. Thus, wh e ther Von ’s refu sal to testify at trial was due to hisembarrassment or because of his “pinky-24- swear” to respondent is of no matter. Respondent’s confrontation rightsmay

not be abr

idged u nless he a cted with the intended purp ose of procuring Von’s absence fr om trial. Since there is no evidence that respondent

intentionally committed any wrongdoing for the

purpose of pr oc ur in g V on ’s un av ai la bi li ty a t t ri al , t he fo rf ei tu re -b ywro ngdoingdoctrine is inapplicable to the case at bar. Havin g
reac hed this determination, we will go on to determine whether t h e admission of the testimonial statements to Officer Cure an d Jackie Weber, though er

ror, wa s harmles s.

3. Harmless Error As noted in Stechly , Crawford violations are subj ect to ha

rmlesserror review a nd the tes t is whethe

r it appe ars bey

ond a rea so nab le doubtthat the error at issue did not contribute to the verdict obtained. Stechly , 225 Ill. 2d

at 304 , citi ng People v. Patterson , 217 Ill. 2d 407, 42 8 (2 005). When deciding whether error is har mless, a reviewing court may (1) foc

us on the error to determine whether it might have contrib uted to the conviction; (2) examine the other properly admitted evidence t o determine whether it overwhelmingly supports the convic tion; or (3) determine whether the improperly admitted evidence is merely cumulative or duplica tes prope rly

admitted evidence. Stechly , 225 I ll. 2d at 3 04-05 , quot ing Patterson , 217 Ill. 2d at 428, citing People v. Wilkerson , 87 Ill. 2d 151, 157 (1981). In the

c ase at bar, we find that the properly admitted ev idenc e overwhe lmingly

supports the conviction and, for that reason, the admission of Von’s

testimonia

l stateme nts to Off icer Cu re an d Weber was har mless bey ond a rea sonable d

oubt. Unlike the situation in Stechly , h er e there was no inconsistency regarding th e p er pe tr at or ’s id en ti ty. The properly admittedtestimony of Von’s mother, Jacqueline M., revealed that, on the day in question, Voncamehome s ometime after noon accomp anied by responde nt. Jacqueline heard respondent, who waited at the door, call to Von

and ask hi m t o c om e b ac k o ut si de . U nc ha ra ct er is ti ca ll y, Vondeclined and respondent

left. Von , immediat

ely upon arr iving home, went d

irectly to the bat hroom and began to act strange ly: coughing , spitting, and washing his mouth out with water. After returnin g to the b athroom a second time to wash his mouth out with water, V on spo ntaneous ly revealed to Jacqueline that respondent had made him “suck his dick.”-25- Von’s actions upon his return home, which Jacqueline witnessed, correlated to the type of

sexual abu se Von sa

id occur red and s trongly indicated that the a buse occurred very recently, a

t a time when Von had been solely in re sponden t’s co mpany. Respondent admitted at trial that he alone walked Von home, throu gh the wo oded area . We find that Jacqueline’s testimony a bout her observations of Von’s behavior, in addition to her testi mony regar ding Von ’s statement to her, overwhelmingly

supports the conviction in this case. We recognize that in Stechly , a case simi l ar to the one at bar, a plu rality of this co

urt found the improp er admiss ion of tes timo nia l statemen ts by t wo witnes ses was no t harmless. However, the circumstances in Stechly were considerably different and distin

guish Stechly from the casebefore us. In Stech ly , the five -y ear-ol d victim, M.M., did not make an immediat e ou tcry. B renda Galete, M.M.’s babysitter, learned from M.M. on J anu ary 13, 1999, that “B ob” had sexually abused M.M . n early a

month earlier, in December 1998. Uponobtaining thi s infor mation, Galete drove to where M.M.’s mother, Joan, worked and insisted that M.M. be taken to the hospital. At the hospital, M.M. told clinical specialist Ann Gro te about the sexual abuse by

“Bob.” Grote did

not inquir

e int o who “B ob” was. Instead, Joan identified “Bob” as defe ndant, Robert Stechly, who lived in Joan’s a

partment buildi ng and was, at that time, Joan’s boyfriend. Subsequently, Stechly was ar rest ed and charge d with predatory crimina l sexu al assault, criminal sexual assault, and aggr avated c riminal se xual abuse

of M.M. At trial, a serious question arose concerning whe ther M.M. had, infact, identified defendant as her abuser. Prior to defe ndant’s trial, at the reliability hear

ing, Joan testified that, on January 13, 1999, afte r Galete came to her place of employ ment and they were e n route to the hospital, M.M. desc

ribed an incident of sexual a

buse and told

her that “Bob” had been the perpetrator. Although M.M. only identified

t he abuser as “Bob ,” Joan said she had understood M.M. to mean the defenda nt, Bob Stechly . At trial, however, Joan testified that, during the trip to the

hospital, M.M. actu

ally told her th at “R ob er t S te ch ly”

was the abuse

r, id entifying him by

name. This deviation in Joan’s testimony became significant becaus e Brenda Galete t estified , in contradiction

to Joan’s testimony, that Bob Reilly , Joan’s nephew, who also lived in an apartment in Joan’s building, baby sat M.M. “a-26- lot” and that M.M. “acted strangely ” around men in November 1998, long before the time in December 1 998 when defendant babysat M.M. and allegedly

abused her. Brenda Galete also testified

that, on January 13, 1999, when M.M. told her about the abuse, M.M. never specified who “Bo b” was. F urther, Galete t

estified th at sh e did not hear M.M. tell Joa

n any thing ab out th e abuse during the trip to the hospital and that she believed that there were others who had molested M.M. , incl udin g Joan , M.M .’s mo ther. Also, altho ugh defendant had confessed

to sexually

abusing M.M. afte

r his arrest, the confess ion was dis credite d at trial

. It is c lear from the facts above that, in Stechly , the testimony concerning

M.M.’s he arsay

statemen

ts w as, wi th respe ct to defendant’s identity

, both inconsistent a

nd the subj ect of so me dispute. Also, as the Stechly plurality pointed out, defendant’s original jury trial resulted in a mistrial be cause th e jury

was unab le to reach a consensus on any

of the counts. Though not dispositive, the plurality believed that this fact lent creden ce to the notion that the evid ence of defendant’s guilt was closely balanced, even when t

h e improper ly a dmitted ev

idence was taken

into acc ount. Following the mis tr ial, defendant was found guilty after a stipulated bench tr ial. The t rial judg e consi der ed the same evidence heard by the jury

, including the improperly admitted testimony of the hospital clinical specialist, Ann Grote, and the school social worker, Perry Yates. Grote had testified that M.M. identifie d her abu ser only

as “Bob,” but Yates had testified that when he interviewed M.M. at school, he beg an the int

e rv ie w b y asking M.M. to “tell me about Robert Stechly.” The testimon y of Yates, in particular, gave heightened

support to the notion that M.M. had identified defendant

as the perpetrator. For this reason, the improperly admitted evidence tended to resolve the controversy ove r the identity of M.M.’s abuser and, thus, was not simply cumulative to the prope rl y a dmitted evi den ce. Certainly, then, the prope rly admitted evidence , standing alone, di d not over

whelmingly e stablish th e defen dant’s g uilt. Unlike the situation in Stechly , in the ca se at bar, the prope rly admitted testimony of Von’s mother, Jacqueline, wa s clear and uncontroverted. It overw helm ingly

established respondent’s g uilt. Th e impr operly admitted evidenc e was largely repetitive of the

e vidence presented by

Jacqueline and did not resolve any material-27- issue. We conclu

de, ther efore, that the a

dmissio n of Von’s testimo nial statements made to Officer Cure and Weber, thoug h error, was, under the

facts of this case , harmle ss bey

ond a rea sonable

doubt.

II . Constitutionality of Section 115–10 W e note that the State argued in its petition for leave to appea l and i n its opening brief to this court that the appellate court below found section 115–10 unconstitution al an d, therefore, that it was necessary for this court to consider whether the statute could be saved by severin g th e offend ing port

ions of the

statutory provision . In it s reply brief, however, the State concedes that there is no need to sever any portion of the sta

tute bec ause the

appella te court made only

an asapplied finding of unconstitutionality and, thus, the statute will continue to be enforce able in circumstances where it is not unconstit utional. The State ci tes Peop le v. Brady , 369 Ill. App. 3d 836, 847-48 (2007), which he ld that when a statute is unconstitutional

as applied, the St ate may continue

to enfor

ce the st

atute in circumst ances w here it is not uncon stitutiona

l. The S tate has withdrawn the part of its opening brief whe rei n i t addressed the constitutionality and sever a bility of section 115–10. Conseque ntly , the issue

is no long er before us.

CONCLUSIO

N We agree with the a

ppellate court’s ruling that Von’s videotaped statement to child advocate Jackie Weber was testi monial under Crawford and, for that reason, the admission of the statemen t at respondent’s adjudication trial was in violation o f r espondent’s confrontation

right. We ha

ve found, however, that the e rror in admitting this statement was harmless bey ond a reasonab le doubt because the prope

rly admitted e

vidence overwhe lmingly

supports respondent’s conviction. Accordingly , we reverse the appellate cour t judgmen t, which reversed respondent’s adjudication, and we remand to the circ uit court with instructions that respondent’s adjudication be reinstated.

Appellate court judgment reversed;-28- cause remanded.

JUS TICE THO MAS, speci ally conc urrin g: Iagree entirely

with the outcome and analy si s in this case, including the conclusion that the erroneous admission of Von’s statemen ts to Cure and Weber was harmless bey ond a reasonable doubt. I wr

ite separately

only to reaff

irm my belief

that the erroneous admission of the statements at issue in Stechly

was likew

ise harml ess beyond a reasonable doubt. See Stech ly , 225 Ill. 2d at 346-53 (Thomas, C.J., dissenting, joined by Karmeier , J.).

JUS TICE KILBRIDE, al so sp ecial ly concurr ing: Iagree with the ma

jority ’s holding

in all res pects oth er

than its framework

for determining whether the statement

to child a

dvocate Jacqueline Weber w as testimonia l. As set f

orth in my

dissent in Stechly , Ibelieve the proper focus of the inquiry is whether a

reasona ble adult in

the declarant’s position

would anticipate that the statement likely would be u sed in

a criminal prosecution. Stechly , 225 Ill. 2d at 324-25 (Kilbride, J., concurring in part and disse

nting in part). Apply

ing that st anda rd to the f

acts of th

is case r esults in agreement

with the majority’s conclusion that the statement to Weber

w as testimonial. Accordingly , I specially concur in the major it y’ s decision. In Stechly , the plurality devised a test for determining whether a statement is testimon

ial that s hifts the focus from the declarant’s intentto that of the questioner depending on the circumstances of

the

case. See Stechly , 225 Ill. 2d at 284-92. Th e plural it y held that the objective intent of t

he decla rant is the foc us of the inquiry when a statement is not produced by law e

nforcement

interrogation. Stechly , 225 Ill. 2d at 289. Thes tandard is whether the objective circumstances would

lead a reasonable person to anticipate that his or her statemen t likely would be u sed in

a criminal prosecution. Stechly , 225 Ill. 2d

at 292. When a

statement is produced by la w enforcement interrogation, however, the focus is on the ques tioner’ s objective intent in eliciting the statement. Stechly , 225 Ill. 2d at 284-85. The shifting

focus of the inquir

y f rom Stechly was based on the plurality’s rea ding of

the Supreme Court’s decision in Davis v.-29- Washington , 547 U.S. 813, 165 L. E d. 2d 22 4, 126 S. Ct. 2266 (2006). Stechly , 225 Ill. 2d at 267-68. The plurality acknowledged that, prior to Davis , many authorities had c oncluded that the focus of the in qu iry was alwa

ys on the declar

ant’s intent in giving the statemen t. Stechly , 225 Ill. 2d at 290-91. Ac co rd in g t o t he pl ur al it y, though, Davis mo di fi ed th e a na lys is by indicat ing that when a stat ement is the product of police questioning, the intent of the law enforcement

office r in taking

the state ment is the

focus. Stechly , 225 Ill. 2d at 267. Icontinue to disagree with the plurality’s interpre

tation of Davis

. As explained

inmy separa

te writing in Stechly , the Supreme Court’s decisionin Davis did not change the f oc us of the inquiry for determining whether a statement is testimonial. Stechly , 225 Ill. 2d at 324-25 (Kilbride, J., concurring in part and dissenting in part). Rather, Davis indicated that the perspective of the declara nt remains the focus of the inquiry. A s noted in Davis , “even when interrogation exists, it is in the final analysis the declar ant’s statem en ts, not the interrogator’s questions , that the Confronta

tion Clause

requires us to evaluate.” Davis , 547 U.S. at 822 n.1, 165 L. Ed. 2d at 237 n.1, 126 S. Ct. at 2274 n.1. Further, the Stechly pluralit y ackn owledged “ultimate ly

it is the declarant’s intent to which the confrontation clause looks.” Stechly , 225 Ill. 2d at 290. Thus, I continue to believe that the inten

t of the de claran

t is alw ays the proper f ocus in determin ing whe ther a sta tement is t

estimonia l. In Stechly , I a

lso disagr eed with the plura lity ’s concl

usion that a child’s age “is among the circu mstance s potentia

lly r elevant to evaluatingwhethe rthe objective circumstances of the statement woul d have led a reasonable declar ant to understand that his or her statement could be used in a subseq uent prosecution of the defendant.” Stechly , 225 Ill. 2d at 296. I n my view, the ca ses deciding t hat a child’s age should not be considered are persuasive. Stechly , 225 Ill. 2d at 325 (Kilbrid e, J., conc urring in part a nd dissent

ing in part) (citi ng People v

. Sisavath , 118 Cal. App. 4th 1396, 1402 n.3, 13 Cal. Rptr. 3d 753, 758 n.3 (2004), and State v. Snowden , 385 Md. 64, 90-91, 867 A.2d 314, 329 (2005)). Sp ec if ic al ly, the Snowden court

recognized that the confrontation clause is des igned

to protect fundamental rights of the accuse d and the inter est in shiel ding v icti ms fro m test ifying may nev er out weigh-30- the explicit constitutiona

l right to be confronted with the witnesses at trial. Snowden , 385 Md. at 90, 867 A. 2d at 3 29, ci ting Coy v. Io wa , 487 U.S. 1012, 1019-21, 101 L. Ed. 2d 857, 866-67, 108 S. Ct. 2798, 2802-03 (1988). Accordin gly , the cour

t c o ncluded that an objective person standar d, rath er than an objective child of the witness’ age , should be used in determining whether a statement is testimonial and sub ject to the confrontation clause guarantee

. Snowden , 385 Md. a t 90-91, 867 A.2d at 329. As noted, the Stechly pl ur al it y he ld th at a c hi ld ’s ag e m ay b e considered

in decidi

ng whet her a re asonable

declar ant would comprehend

that his or her statement

could be u sed in

a subsequent criminal prosecution. Stechly , 225 Ill. 2d at 295-96 . Thus, under the plurality’s holding, the confrontation clause will not

apply to certa in out-of-court

statemen ts b y chil dren simp ly b ecause they are inc apable of anticipa ting tha t their sta tements c ould be use d in a subsequent prosecution. The conf

rontation clause p rovides, however , that a criminal defenda

nt “shall e

njoy the rig ht *** to be

confron ted with the witnesse s ag ainst him.” U.S. Const. , amend. V I. Th e plain langua ge of the confronta tion clau se applie s to all w itnesses. The Stechly plurality’s framework for determin ing whe ther a sta tement is testimonial cannot

be squared

with the c onfronta

tion clau se beca

use it e xempts an entire category of out-of-court statements fr o m confrontation

clause protections. Stechly , 225 Ill. 2d at 326 (Kilbride, J., concurring in part and dissenting in part). Alth ough testimonial out-of-court statements by c hild witnesses clearly may not b e exempted from the protections of the confrontation clause, I emphasize that there are a number o f ways to re duce any impact of testifying. See Stech ly , 2 25 Ill. 2d at 326-27 (Kilbride, J., concurring

in part and dissenting in part ). In particular, it may be appropr iate to expand th e use of c losed-c ircuit te levision a s a way to reduce or eliminate the impact of testifying . See 725 IL CS 5/106B–5 (West 2006). There may

also be ot her way s to elimina

te any adverse effec ts of testif

yin g in compliance with

the confrontation clause. The interest in shielding a witness from testify ing, however, may

not outwe igh a defendant’s constitutional right to be confronted

with the witnes ses a t trial. Snowden , 385 Md. at 90, 867 A.2d at 329, citing Coy , 487 U.S. at 1019-21, 101 L. Ed. 2d at 866-67, 108 S. Ct. at 2802-03.-31- Insum, I contend the applicable sta ndard for determining whether Von’s statemen

t is testimon

ial is whether a reasonable ad ult in his position would expect that the statement likely would be usedin a subsequent

criminal prosecution. Stechly , 225 Ill. 2d at 327 (Kilbride, J., concurring

in part and dissenting in part). Under that standard, Von’s statement to Weber was testimonial. His statement was made inan inter

view at a child advocacy

center. The circumstancesof the interviewwere sufficien

tly formal a nd struct ured to r esult in a s olemn statemen t. I agre e with the majority that there is no indication that the primary purpose of the interview was for treatment or to prote ct Von froman ongo ing eme

rge ncy. The inter

view was focused on recountingpast eve

nts. Thus, Von was acting in a manner analogous to a witness at trial by desc ribing past events. Also, a reasona ble adult may have re cognized

that the child advocate was a “mandated reporter” obligat

e d to share information with law enforcement. See 55 IL CS 80/4(c) (West 2002). Given these objective circumst ances,
a reasonable adult in Von’s position would anticipat e t hat his statement likely would be used in a c riminal prosecution. Thus, although I disag

ree with the majority’s frame work for determining whether

a stateme

nt is te stimon ial, I agre e that Von’s statement to Weber was testimonial and was admitted in violation of the confrontation clause. I a lso agree with

the majority’s decision on forfeiture by wrong doing and harmless error. Accordingly , Ispecial ly concur i n the majo rity ’s judgment.