Docket No. 99581.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

In re ROLANDIS G., a Minor (The People of the State of Illinois,

Appellant, v. Rolandis G., Appellee).

Opinion filed November 20, 2008.

JUSTICE BURKE delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Freeman, Garman, and

Karmeier concurred in the judgment and opinion.

Justice Thomas specially concurred, with opinion.

Justice Kilbride also specially concurred, with opinion.

OPINION

Eleven-year-old Rolandis G. (respondent) was adjudicated

delinquent after a juvenile court judge, in the circuit court of

Winnebago County, found him guilty of the aggravated criminal

sexual assault (720 ILCS 5/12–14(b)(i) (West 2002)) of six-year-old

Von J. The appellate court reversed the adjudication and remanded

for a new trial, ruling that the hearsay testimony of two witnesses had

been improperly admitted under Crawford v. Washington, 541 U.S.

36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). 352 Ill. App. 3d 776.

The appellate court also held that the statute which permitted the

hearsay testimony to be admitted into evidence, i.e., section 115–10
 

1Section 115–10 provides, in pertinent part:

“(a) In a prosecution for a physical or sexual act perpetrated

upon or against a child under the age of 13, *** the following

evidence shall be admitted as an exception to the hearsay rule:

(1) testimony by the victim of an out of court statement

made by the victim that he or she complained of such act to

another; and 

(2) testimony of an out of court statement made by the

victim describing any complaint of such act or matter or detail

pertaining to any act which is an element of an offense which

is the subject of a prosecution for a sexual or physical act

against that victim.

(b) Such testimony shall only be admitted if:

(1) The court finds in a hearing conducted outside the

presence of the jury that the time, content, and circumstances

of the statement provide sufficient safeguards of reliability;

and 

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of the Code of Criminal Procedure of 1963 (725 ILCS 5/115–10

(West 2002)), was unconstitutional “to the extent [it] permits the

introduction of [testimonial] statements” in violation of the

confrontation clause of the United States Constitution (U.S. Const.,

amend. VI). 352 Ill. App. 3d at 781.

The State petitioned this court for leave to appeal, which we

granted. In this appeal we are asked to resolve a number of issues,

some of which were left open by our recent decision in People v.

Stechly, 225 Ill. 2d 246 (2007).

BACKGROUND

On July 16, 2002, Rolandis G. was arrested and charged with the

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

delinquency petition was filed wherein it was alleged that on June 25,

2002, Rolandis had forced Von to perform fellatio on him. The

petition asked that Rolandis be declared a delinquent minor and made

a ward of the court.

On November 21, 2002, a trial was held on the delinquency

petition. Prior to trial, the State filed motions in limine pursuant to

section 115–10 (725 ILCS 5/115–10 (West 2002)),1 seeking to admit
(2) The child *** either: 

(A) testifies at the proceeding; or

(B) is unavailable as a witness and there is corroborative

evidence of the act which is the subject of the statement[.]

***

* * *

(e) Statements described in paragraphs (1) and (2) of

subsection (a) shall not be excluded on the basis that they were

obtained as a result of interviews conducted pursuant to a protocol

adopted by a Child Advocacy Advisory Board as set forth in

subsections (c), (d), and (e) of Section 3 of the Children’s

Advocacy Center Act [55 ILCS 80/3] or that an interviewer or

witness to the interview was or is an employee, agent, or

investigator of a State’s Attorney’s office.” 725 ILCS 5/115–10

(West 2002).

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into evidence hearsay statements Von made to his mother and to

Officer Cure of the Rockford police department, as well as a

videotaped statement made to Jacqueline Weber, a child advocate at

Rockford’s Carrie Lynn Children’s Center. The court deferred ruling

on these motions until after hearing all of the testimony.

The matter proceeded to trial and Von was called as the first

witness. Von answered a few preliminary questions about himself and

made an in-court identification of Rolandis, stating that Rolandis was

someone he had known from the neighborhood. However, when

asked about events that occurred on June 25, 2002, Von resolutely

refused to respond. Even after he was given a short recess to speak to

his mother and a child advocate, Von could not bring himself to

answer questions about the allegations concerning Rolandis. The

court offered defense counsel the opportunity 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, 2002, her six-year-old

son, Von, went outside to play with the neighborhood children. She

said Von returned home shortly after noon, accompanied by Rolandis.

Upon entering the home, Von immediately went to the bathroom,

while Rolandis remained by the front door of the apartment. She

heard Rolandis call to Von and ask him to come back outside, but

Von refused and Rolandis left.
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Jacqueline testified that while Von was in the bathroom she saw

him coughing, spitting, and rinsing his mouth out with water. She

asked Von if something was wrong and Von told her that his “throat

was hot.” Von remained inside the apartment and, after a few

minutes, returned to the bathroom and started coughing and spitting

again. Shortly thereafter, Von came into the living room, where

Jacqueline was sitting, and told her, “Rolandis made me suck his

dick.” Jacqueline said she questioned Von and he told her that while

he had been outside that morning Rolandis had forced 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 him cry. Also, Von said that, after he did what Rolandis told

him to do, Rolandis made Von “pinky swear” not to tell anyone.

Jacqueline testified that, because of the “pinky swear,” Von did not

want her to tell anyone else what Rolandis had done. Nevertheless,

Jacqueline called the Rockford police department to report what had

happened and within 10 minutes Officer Robert Cure came to

Jacqueline’s apartment to speak to her and Von.

Officer Cure was the next witness to testify. He told the court that,

on June 25, 2002, he responded to Jacqueline’s call to the Rockford

police department and spoke with Jacqueline and Von at their

apartment. Officer Cure testified that Von told him that Rolandis had

forced Von to “suck his dick” and that Rolandis had been holding a

stick in his hand when he forced Von to perform this act. Von also

told Officer Cure that he had choked while he was performing the act

and that a fluid had come out of Rolandis’ penis. Von told Officer

Cure that, after this happened, he came home and began to wash his

mouth out with water.

The State’s last witness was Detective Paul Swanberg from the

Rockford police department. He testified that, on July 1, 2002, he

went to the Carrie Lynn Children’s Center in Rockford, a facility

which provides services to child victims of sexual and severe physical

abuse. Von J., accompanied by his mother, came to the Center that

day to be interviewed by child advocate Jackie Weber. Because

Weber was unavailable to testify at trial, Detective Swanberg, who

had observed the interview, testified regarding Weber’s interview

with Von.
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Detective Swanberg testified that Von’s interview took place in

a room that was equipped with a one-way mirror and a hidden

audio/videotaping device. In accord with Center protocol, Weber’s

interview with Von was videotaped. Von and Weber were the only

people in the room when the interview was conducted. However,

Detective Swanberg and another staff person from the Carrie Lynn

Children’s Center observed the interview via the one-way mirror.

Detective Swanberg testified that Weber asked Von to identify

various parts of a boy’s body using two anatomical drawings (front

and back). Weber then wrote down Von’s responses on the drawings.

At trial, Detective Swanberg identified the two drawings Weber had

marked and they were placed into evidence.

DetectiveSwanberg also testified that when Weber completed her

interview with Von he took a copy of the videotaped interview into

custody. The videotape was placed into an evidence bag and kept at

the police department. At trial, Detective Swanberg identified the

evidence bag and the videotape. Subsequently, the videotape was

played in its entirety for the court. On the videotape, Von told Weber

about the incident with Rolandis, repeating what he had told his

mother and Officer Cure, adding some additional details in response

to Weber’s questioning.

After presenting its evidence, the State asked for a ruling on its

motionsin limine. The court heard the arguments of counsel and then

ruled, in accord with section 115–10(b)(1), that the time, content, and

circumstances under which Von’s statements were made to his

mother, to Officer Cure, and to Jackie Weber provided sufficient

indicia of reliability. The court further ruled that, even though Von

had been unable to answer questions at trial regarding Rolandis’

conduct, 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 regarding Von’s out-of-court

statements, as well as Von’s videotaped interview with Jackie Weber,

were admissible as exceptions to the hearsay rule. The State then

rested.

Defense counsel called Rolandis to testify on his own behalf.

Rolandis admitted that he had been playing with Von on June 25,

2002, and that he had walked Von home through a wooded area near

his home. He denied, however, that he had forced Von to perform any
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sexual acts and could offer no explanation as to why Von would make

up such a story. Defense counsel also called as witnesses Rolandis’

mother, Rolandis’ friend Jessie, and another friend’s mom, Jessica.

These witnesses provided no material evidence with respect to the

charged offense. Although Jessie had been with Von and Rolandis on

June 25, 2002, Jesse testified that he left before Rolandis walked Von

home. Defense counsel attempted to ask the otherwitnesses questions

about Rolandis’ general character, but the State objected to the line

of questioning and the evidence was ruled inadmissible.

After hearing counsel’s arguments, the trial court held it was

“convinced beyond a reasonable doubt” that Rolandis was guilty of

committing aggravated criminal sexual assault. The court adjudicated

Rolandis delinquent, made him a ward of the court, and sentenced

him to probation for a period of five years.

Rolandis appealed his adjudication. He initially argued, based on

section 115–10, that (1) the trial court erred in ruling that Von was an

available witness and (2) the State failed to meet its burden of

producing evidence to corroborate Von’s out-of court statements,

pursuant to section 115–10(b)(2)(B), which it was required to do

because Von was unavailable to testify.

While Rolandis’ appeal was pending, the United States Supreme

Court filed its decision in Crawford v. Washington, 541 U.S. 36, 158

L. Ed. 2d 177, 124 S. Ct. 1354 (2004). Rolandis then filed a

supplemental brief, claiming that Von’s statements to Officer Cure

and Jackie Weber were testimonial hearsay and, thus, improperly

admitted under Crawford. Rolandis also asked that the appellate court

declare section 115–10 constitutionally invalid to the extent that it

permits the introduction of testimonial out-of-court statements when

the accused has had no prior opportunity to cross-examine the

declarant, in violation of the confrontation clause of the United States

Constitution (U.S. Const., amend. VI).

On appeal, the State conceded that Von was not available to

testify at trial. As to the remaining issues, the appellate court held that

Von’s statements to Officer Cure and Jackie Weber were

“testimonial” and inadmissible under Crawford because Von did not

testify at trial and respondent had no prior opportunity to crossexamine him. The court also held that, to the extent that section
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115–10 permits statements such as these to be admitted into evidence,

the statute is unconstitutional.

The appellate court further found that Von’s statement to his

mother was nontestimonial and sufficiently corroborated. Thus, the

appellate court ruled that Von’s out-of-court statement to his mother

was properly admitted under section 115–10 and Crawford. In

addition, the court held that, for purposes of double jeopardy, the

testimony of Von’s mother was sufficient to support a finding of

guilt. Accordingly, the appellate court reversed Rolandis’

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 Ill. 2d R. 315), arguing that review by this court was crucial

to affirm the constitutionality of section 115–10 and to consider the

proper application of Crawford in situations involving young victims

of sexual crimes. We granted the State’s petition. We also granted the

National District Attorneys Association/American Prosecutors

Research Institute to file an amicus brief.

ANALYSIS

There are three main issues raised by the State in this appeal.

First, the State asks that we find the appellate court erred when it

ruled on respondent’s confrontation clause claim and held that the

videotaped statement Von gave to child advocate Jackie Weber was

“testimonial” under Crawford v. Washington, 541 U.S. 36, 158 L. Ed.

2d 177, 124 S. Ct. 1354 (2004). The State asks that we reverse this

ruling and find that admission of the videotaped statement did not

violate respondent’s right of confrontation. The State maintains that

whether a statement is “testimonial” is a question of law and our

review, therefore, is de novo. See People v. Hall, 198 Ill. 2d 173, 177

(2001) (review of legal questions is de novo).

The State’s remaining issues are presented as alternative claims

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 must consider: (1) whether

admission of Von’s hearsay statements to Weber and Officer Cure

was harmless error, and (2) whether, pursuant to the doctrine of
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forfeiture by wrongdoing, respondent should be precluded from

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 leave to appeal, but asks that we excuse any forfeiture of

these issues to promote a just result and to maintain a sound and

uniform body of precedent.

I. Confrontation Clause

A. Crawford, Davis, and Stechly

In November 2002, when respondent’s adjudication trial took

place, the juvenile court judge employed section 115–10 to find

Von’s out-of-court statements to his mother, Officer Cure, and Jackie

Weber admissible. Section 115–10 is an Illinois statutory provision

which, when enacted by our legislature, was tailored to comport with

sixth amendment confrontation clause requirements (U.S. Const.,

amend. VI) as delineated in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed.

2d 597, 100 S. Ct. 2531 (1980). See People v. Stechly, 225 Ill. 2d

246, 264 (2007). Under Roberts, it was not a violation of the sixth

amendment confrontation clause to admit out-of-court hearsay

statements into evidence as long as the statements were found to be

reliable, either because the evidence fell within a firmly rooted

hearsay exception 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.

In 2004, while respondent’s appeal was pending in the appellate

court, the United States Supreme Court overturned Roberts and

devised a fundamentally new procedure for analyzing 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

because his wife’s tape-recorded statement to police was admitted

into evidence at defendant’s trial although she did not testify at trial

due to defendant’s invocation of the spousal privilege. After engaging

in a lengthy examination of the historical underpinnings of the

confrontation right guaranteed by the sixth amendment, the Court

concluded that when an out-of-court statement is “testimonial” in

nature “the only indicium of reliability sufficient to satisfy
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constitutional demands is the one the Constitution actually prescribes:

confrontation.” 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 admitted as evidence at trial only if the declarant

testifies or the declarant is unavailable and the defendant has had a

prior opportunity to cross-examine the declarant. Crawford, 541 U.S.

at 53-54, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365-66. The Court

explained:

“Where testimonial statements are involved, we do not

think the Framers meant to leave the Sixth Amendment’s

protection to the vagaries of the rules of evidence, much less

to amorphous notions of ‘reliability.’ Certainly none of the

authorities discussed above acknowledges any general

reliability exception to the common-law rule. Admitting

statements deemed reliable by a judge is fundamentally at

odds with the right of confrontation. To be sure, the Clause’s

ultimate goal is to ensure reliability of evidence, but it is a

procedural rather than a substantive guarantee. It commands,

not that evidence be reliable, but that reliability be assessed in

a particular manner: by testing in the crucible of

cross-examination. The Clause thus reflects a judgment, not

only about the desirability of reliable evidence (a point on

which there could be little dissent), but about how reliability

can best be determined.” Crawford, 541 U.S. at 61, 158 L.

Ed. 2d at 199, 124 S. Ct. at 1370.

The Court then concluded, “[w]here nontestimonial hearsay is at

issue, it is wholly consistent with the Framers’ design to afford the

States flexibility in their development of hearsay law–as does

Roberts, and as would an approach that exempted such statements

from Confrontation Clause scrutiny altogether. Where testimonial

evidence is at issue, however, the Sixth Amendment demands what

the common law required: unavailability and a prior opportunity for

cross-examination.” Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203,

124 S. Ct. at 1374.

Although the Crawford Court held that sixth amendment

protections turned on whether or not the out-of-court statements

sought to be admitted are “testimonial,” the Court did not attempt to

define what it meant by “testimonial” hearsay. It held, however, that,
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at a minimum, it must include statements made in the course of police

interrogation, as well as statements that are the result of other types

of formal questioning–such as testimony given at a preliminary

hearing, before a grand jury, or at a former trial–where there was no

opportunity 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 appellate court relied on

Crawford to reverse respondent’s adjudication, finding that Von’s

out-of-court statement to Officer Cure and his videotaped statement

to Weber were “testimonial” and, therefore, respondent’s sixth

amendment confrontation rights were violated by their admission.

The State timely filed a petition for leave to appeal from the appellate

court’s judgment. Initially, we held the State’s petition because we

already had before us a factually similar case, People v. Stechly, No.

1–01–2869 (2003) (unpublished order underSupremeCourtRule 23),

which we believed might resolve the issues raised in the case at bar.

While Stechly was before us, the 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 meant by “testimonial” statements.

In Davis, the Court considered whether statements made to law

enforcement personnel in two separate cases were “testimonial” and,

thus, subject to the requirements of the sixth amendment

confrontation clause. The first case involved statements made during

a tape-recorded call to a 911 emergency operator and the second case

involved statements made by the defendant’s wife to police officers

at the scene of a domestic battery after the altercation had ended. In

both cases the statements were held to be nontestimonial and

admitted into evidence although the declarant did not testify at trial.

On review, the Court held that the statements made to police

officers at the scene of the domestic altercation were testimonial, but

that the statements made on the 911 tape recording were not. The

distinction was not based on the 911 operator’s status because the

Court assumed that the 911 operator was an agent of the police.

Rather, the Court explained that a statement to law enforcement

personnel will be deemed “nontestimonial” if the circumstances

objectively indicate that the primary purpose of the interrogation is to

gather information to meet an ongoing emergency. On the other hand,
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statements to law enforcement will be deemed “testimonial” if

circumstances objectively indicate there is no ongoing emergency and

the primary purpose of the interrogation is to establish or prove past

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.

With the benefit of both the Crawford and Davis opinions, this

court filed its decision in People v. Stechly, 225 Ill. 2d 246 (2007). In

Stechly, the defendant challenged his convictions for predatory sexual

assault of a child and aggravated criminal sexual assault. He claimed

that, pursuant to Crawford, his sixth amendment confrontation rights

had been violated by the admission of out-of-court statements the

unavailable witness, five-year-old M.M., had made to three persons:

Joan G., M.M.’s mother; Ann Grote, a clinical specialist and head of

the child-abuse team at the hospital where M.M. was taken for

examination; and Perry Yates, the social worker at the school where

M.M. attended kindergarten.

In a plurality decision, Stechly’s convictions were reversed and

the matter remanded to the circuit court with directions that a hearing

be held on the issue of forfeiture by wrongdoing. Applying Crawford

to the defendant’s confrontation clause claim, we first looked at the

threshold issue, i.e., whether the out-of-court statements were

“testimonial.” Six justices agreed that M.M.’s statements to her

mother were nontestimonial and that her statements to Grote and

Yates were testimonial. However, three of the six justices (Justices

Freeman, Fitzgerald and Burke) held that admission of the testimonial

statements could not be considered harmless error and that reversal

was required, while the other three justices (Chief Justice Thomas and

Justices Garman and Karmeier) dissented from the reversal, holding

that the admission of the testimonial hearsay did not amount to

reversible error “in light of the overwhelming evidence against

defendant that was properly admitted.” Stechly, 225 Ill. 2d at 330

(Thomas, C.J., dissenting, joined by Karmeier, J.). Justice Kilbride

agreed that reversal was required, but reached that conclusion for

reasons that were different from those expressed by the plurality.

Justice Kilbride held that M.M.’s statements should have been

excluded pursuant to section 115–10 because the evidence did not

adequately show that M.M. was “unavailable” to testify. Also,

employing an analysis that did not take into consideration the age of
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the child-declarant, Justice Kilbride found that all of M.M.’s

statements, including those made to her mother, were testimonial.

After we filed our decision in Stechly, we granted the State’s

petition for leave to appeal in the case at bar. Crawford, Davis and

Stechly provide us with an understanding of the current parameters of

the confrontation clause guarantee. Keeping them in mind, 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 failure to object at trial, on confrontation clause

grounds, to the admission of hearsay testimony. We rejected an

identical argument in Stechly and for the reasons expressed therein

reject the State’s claim here as well.

As we explained in Stechly, Crawford announced a fundamentally

new rule regarding the effect of the confrontation clause on the

admission of hearsay statements and, thus, the rule should be applied

retroactively to all cases pending on direct review or not yet final

when Crawford was decided. Stechly, 225 Ill. 2d at 268, quoting

People v. Sisavath, 118 Cal. App. 4th 1396, 1400, 13 Cal. Rptr. 3d

753, 756 (2004). Moreover, as we recognized in Stechly, “it would be

manifestly unfair to hold defendant to have waived claims by not

raising them at trial when those claims are based on a rule which was

only announced during the pendency of his appeal.” Stechly, 225 Ill.

2d at 268. This reasoning is equally applicable to the case at bar.

Here, too, fairness requires a finding that respondent did not forfeit

the right to raise a confrontation clause claim by his failure to make

a more specific objection at trial to the admission of hearsay

testimony.

2. Videotaped Statement to Weber: Testimonial or Nontestimonial

The State agrees that, pursuant to Stechly, Von’s statement to his

mother was nontestimonial and his statement to Officer Cure was

testimonial. The State’s only challenge is to the appellate court’s

determination that Von’s videotaped statement to Weber was
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testimonial. The State asks that we reverse this determination,

maintaining that the videotaped statement is nontestimonial because

neither Von nor Weber was acting to a substantial degree to produce

a statement for future trial. In support of this contention, the State

maintains that: (1) there is no evidence to show Weber’s intent

because Weber did not testify at trial, (2) in general, the primary

concern of child advocates and child advocacy centers, such as the

Carrie Lynn Children’s Center here, is the physical, mental and

emotional welfare of child victims; (3) Weber’s interview occurred

prior to the time that Rolandis was arrested and the juvenile petition

was filed, indicating that the purpose of the interview was to assess

whether abuse occurred, rather than prepare for trial; and (4) Weber

was not acting as an agent of law enforcement because, as a child

advocate, her primary focus was the best interests of the child.

The State admits that a majority of courts in other jurisdictions

have held statements made to child advocates, under circumstances

similar to those here, to be testimonial. However, the State argues that

these cases are distinguishable or wrongly decided. Further, the State

insists that the fact that Weber conducted her videotaped interview

with Von under the observation of a police officer does not mean that

Weber was acting as an agent of law enforcement. The State asks that

we take into consideration the fact that Weber’s interview was

conducted as part of a statutorily encouraged, multidisciplinary

response to child sexual abuse, the purpose of which is to reduce

trauma to child victims. The State contends that a failure to recognize

these multidisciplinary interviews as nontestimonial will “discourage

collaboration and video-taping, which is important in limiting the

trauma to which children are subjected when they are involved in

such investigations.”

Finally, the State contends that, because Weber’s interview was

not police interrogation, we may consider the viewpoint of the

declarant, six-year-old Von J., in determining whether the statement

is testimonial. The State urges us to find that, in the case at bar, Von’s

videotaped statementis nontestimonial because a reasonable six-yearold would not have anticipated that his statement to Weber would be

used for a future prosecution.

In response, Rolandis argues that the circumstances of this case

objectively indicate that Weber was acting as an agent of the police
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and that the primary purpose of her interview was to establish or

prove past events that would be relevant in a future criminal

prosecution. Thus, respondent contends that the appellate court

correctly ruled that the videotaped statement to Weber was

testimonial and should not have been admitted. We agree.

In Stechly, the plurality devised a framework for determining

whether an out-of-court statement is testimonial. It held that a

testimonial statement is one which is (1) made in a solemn fashion,

and (2) intended to establish a particular fact. In general, a statement

is testimonial if the declarant is acting in a manner analogous to a

witness at trial, describing or giving information regarding events that

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

framework begs the question, “Whose intent is determinative–the

questioner or the declarant?” After reviewing Crawford and Davis,

the Stechly plurality concluded that, when the statement under

consideration is the product of questioning, either by the police or

someone acting on the behalf of law enforcement, it is the objective

intent of the questioner that is determinative. Stechly, 225 Ill. 2d at

284-85. However, where statements are not the product of law

enforcement interrogation, the proper focus is on the intent of the

declarant and the inquiry should be whether the objective

circumstances would lead a reasonable person to conclude that his

statement could be used against the defendant. Stechly, 225 Ill. 2d at

288-89. Moreover, the plurality held that, when the declarant is a

child, the child’s age may be “one of the objective circumstances to

be taken into account in determining whether a reasonable person in

his or her circumstances would have understood that his or her

statement would be available for use at a later trial.” Stechly, 225 Ill.

2d at 295-96.

Applying this framework to the case at bar, we first must

determine whether Von’s tape-recorded interview with Weber

resulted in a testimonial statement, i.e., whether it was solemn

statement made with the intent of establishing facts regarding past

events. Pursuant to Stechly, the first step in this inquiry is to

determine whether Weber was acting as a representative of the police

when she obtained Von’s recorded statement.

As the State points out, the Carrie Lynn Children’s Center, where

Von’s interview took place, is one of several accredited child
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advocacy centers in this state “established to coordinate the activities

of the various agencies involved in the investigation, prosecution and

treatment referral of child sexual abuse.” 55 ILCS 80/4(a) (West

2002). Weber, a child advocate and employee of the Center,

interviewed Von in furtherance of the “interdisciplinary, coordinated

systems approach to the investigation of child sexual abuse.” See 55

ILCS 80/4(c)(1) (West 2002). Although Weber did not testify and the

record is silent as to the actual purpose of her interview with Von, the

record, from an objective viewpoint, indicates that the interview took

place at the behest of the police so that a more detailed account of the

alleged sexual abuse could be obtained by a trained interviewer and

memorialized on videotape. Moreover, because the interview was

witnessed by Detective Swanberg and a copy of the videotaped

interview immediately turned over to him “as evidence” upon

completion of the interview, the objective circumstances indicate that

Von’s statement was the product of an interrogation, conducted on

behalf of the police, intended to gather information and establish past

acts for future prosecution. Clearly, then, it must be concluded that

Weber was acting as a representative of the police, assisting in their

investigation of an alleged child sexual abuse, when she interviewed

Von.

It is true that the purpose of this type of interdisciplinary,

collaborative protocol is to “minimize the stress created for the child

and his or her family by the investigatory and judicial process, and to

ensure that more effective treatment is provided for the child and his

or her family.” See 55 ILCS 80/3(d) (West 2002). However, there is

absolutely no indication that, in the case at bar, Weber’s interview of

Von was conducted, to a substantial degree, for treatment rather than

investigative purposes. Accordingly, we are compelled to conclude

that Von’s videotaped statement was testimonial in nature and,

because Von did not testify at trial and there was no prior opportunity

for cross-examination, it was improperly admitted in violation of

respondent’s confrontation rights. The appellate court’s judgment in

this regard must be affirmed.

We note, additionally, that our conclusion here is supported by

decisions rendered in other jurisdictions. As the State concedes, “the

majority of courts to consider the question have found statements to

child abuse advocates such as social workers to be testimonial.” One
-16-

such case is State v. Snowden, 385 Md. 64, 867 A.2d 314 (2005). In

Snowden, a social worker for Montgomery County Child Protective

Services in Maryland interviewed three minors (two 10-year-olds and

an 8-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 Montgomery County police department.

The Court of Appeals of Maryland held that the statements made to

the social worker (Wakeel) were testimonial, stating:

“[W]e find that the structure, location, and style of the

interviews actually support the notion that the children’s

interviews were a formal and structured interrogation where

the responses reasonably would be expected to be used at a

later trial. The fact that the interviews were conducted by 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 interrogation.

Wakeel became involved only after being contacted by the

Montgomery County Police Department, which informed her

of the substance of the children’s accusations. Because

Wakeel was performing her responsibilities in response and

at the behest of law enforcement, she became, for

Confrontation Clause analysis, an agent of the police

department.” Snowden, 385 Md. at 85-86, 867 A.2d at 326-

27.

Similarly, 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 County Multi-Disciplinary Interview Center, “a facility

specially designed and staffed for interviewing children suspected of

being victims of abuse.” The interview was observed by a district

attorney and a police officer. The court held that the videotaped

statement obtained at this interview was testimonial, stating:

“Under these circumstances, it does not matter what the

government’s actual intent was in setting up the interview,

where the interview took place, or who employed the

interviewer. It was eminently reasonable to expect that the
 

2

In Hernandez, the court cited a number of cases from various

jurisdictions, including Snowden and Sisavath, which we have cited above,

wherein courts have found statements to be testimonial under facts similar

to those present here. See Hernandez, 946 So. 2d at 1284-85.

-17-

interview would be available for use at trial.” Sisavath, 118

Cal. App. 4th at 1403, 13 Cal. Rptr. 3d at 758.

More recently, a Florida appellate court reached the same

conclusion in Hernandez v. Florida, 946 So. 2d 1270 (Fla. App.

2007).2 In Hernandez, an officer investigating the alleged sexual

abuse of a child took the child and her parents to the local hospital. At

the hospital, a nurse, who was a member of the Child Protection

Team (CPT), physically examined the child and questioned her and

her parents about the alleged abuse. Because a week had passed since

the alleged abuse had occurred, no specimens were taken and no

treatment was provided. Also, no referral was made to a physician for

follow-up treatment or examination.

The nurse’s testimony regarding the child’s responses 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 her

interview with the child and the child’s parents was “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 enforcement,

statutorily bound to work with the police to provide various services

“directed to the detection, investigation, and prosecution of child

abuse”; (2) the nurse was working in concert with the police, as

evinced by the fact that after her examination and questioning of the

child, the investigating officer, who had remained at the hospital

during the interview, made the decision to charge the defendant; (3)

the primary purpose of the examination and questioning was to gather

facts for a potential prosecution; and (4) when the interview took

place the child was in a place of safety and there was no indication of

an ongoing emergency. Hernandez, 946 So. 2d at 1280-82.

These same factors are present in the case at bar. The child

advocate who interviewed Von was employed by a licensed advocacy
-18-

center and, pursuant to the Children’s Advocacy Center Act, 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 information it obtained with the police. See 55 ILCS

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 videotaped interview as evidence. Furthermore, since

there is no indication that the primary purpose of the interview was

for treatment and because Von was no longer in any danger from the

respondent, it must be concluded that the main purpose of the

interview was to gather information about past events for potential

future prosecution. Thus, here, as in Hernandez, the only conclusion

we can reach is that the child’s statement to the child advocate was

testimonial.

We are not unsympathetic to the State’s concern that child abuse

victims are often unavailable to testify because 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 domestic violence,

stated, “We may not, however, vitiate constitutional guarantees when

they have the effect of allowing the guilty to go free.” Davis, 547 U.S.

at 832-33, 165 L. Ed. 2d at 243-44, 126 S. Ct. at 2279-80. Thus here,

too, we may not abridge constitutional guarantees simply because

they are a hindrance to the prosecution of child sexual abuse crimes.

C. The State’s Alternative Claims

1. Procedural Default and Forfeiture

As noted above, the State 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-of-court statements to Weber and Officer Cure, though

improper, was harmless error. Nor did the State argue below, or in its

petition for leave to appeal, that respondent should be precluded from

raising a confrontation clause claim pursuant to the doctrine of

“forfeiture by wrongdoing.” The State concedes that by raising these

issues for the first 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 forfeiture and consider the issues on their

merits.

Respondent does not contend that we should forgo addressing the

State’s alternative claims because they have been procedurally

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 this court.

Thus, respondent has forfeited any procedural default or forfeiture by

the State.

Nevertheless, in recently filed opinions of this court, the failure

to include a claim in a petition for leave to appeal has been raised sua

sponte by this court and relied upon to deny consideration of the

claim. See, e.g., People v. Whitfield, 228 Ill. 2d 502 (2007); People

v. Robinson, 223 Ill. 2d 165 (2006). Accordingly, one could interpret

these cases as suggesting that the failure to include an issue in a

petition for leave to appeal stands as an absolute bar to review by this

court. Such an interpretation of these cases, however, would be

incorrect. This court has long held that the failure to raise an issue in

a petition for leave to appeal is not a jurisdictional bar to this court’s

ability to review a matter but, rather, “a principle of administrative

convenience.” See Dineen v. City of Chicago, 125 Ill. 2d 248, 265-66

(1988). In other words, this court always has the authority to review

a matter not properly preserved, or may decline to do so, as a matter

of discretion. Although that discretion should not be exercised

arbitrarily, review of an issue not specifically mentioned in a petition

for leave to appeal will be appropriate when that issue is “inextricably

intertwined” with other matters properly before the court. Hansen v.

Baxter Healthcare Corp., 198 Ill. 2d 420, 430 (2002).

In a situation, such as here, where a court of review determines

that certain evidence was improperly admitted at trial, it is entirely

appropriate to consider whether any exceptions to inadmissibility

apply and whether the admission of evidence, though error, was

harmless. These matters are inextricably intertwined with the

determination of whether the error that occurred requires reversal.

Thus, we consider the State’s alternative claims despite its failure to

present them in the petition for leave to appeal.
-20-

2. Forfeiture by Wrongdoing

The State asks us to find that respondent forfeited the right to

challenge the admission of Von’s testimonial hearsay statements on

confrontation grounds because respondent’s wrongdoing caused

Von’s unavailability. The State acknowledges that, in Stechly, this

court was split on the proper application of the forfeiture-bywrongdoing doctrine–four justices held that a defendant forfeits his

confrontation rights only if he acts with the intention of causing the

witness to be unavailable to testify and that it is insufficient to show

that the wrongful conduct was causally linked to the witness’

unavailability; two justices held that it was unnecessary to show that

the accused intended to prevent the witness from testifying when he

committed the wrong. The State contends, however, that even the

Stechly plurality recognized that most courts have held that intent

need not be proven and may be presumed when the wrongdoing is

murder. The State, therefore, asks that we expand on this concept and

hold that in child sexual abuse cases, as in murder cases, intent may

be presumed.

The State explains its rationale, stating, “in child sexual abuse

cases, the abuse may well cause the victim to be unavailable to testify

at trial *** because of trauma, fear, or the victim’s predisposed

incompetence to testify.” The State also cites public policy and the

“high importance” society places on protecting children as additional

reasons for permitting courts to presume an intent to prevent the

witness from testifying when 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 that intent may be presumed in child sexual 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 forfeiture by wrongdoing were

presented in its brief, which was submitted prior to the time that the

United States Supreme Court released its decision in Giles v.

California, 554 U.S. ___, 171 L. Ed. 2d 488, 128 S. Ct. 2678 (2008).

Giles demonstrates the proper application of the forfeiture-bywrongdoing doctrine as it relates to an accused’s sixth amendment
-21-

confrontation rights and resolves the debate over the necessity of

proving intent. In light of Giles, we must reject the State’s arguments

concerning the application of forfeiture by wrongdoing in the case at

bar.

In Giles, the defendant shot and killed his ex-girlfriend, Avie,

outside defendant’s grandmother’s home.Although Avie was shot six

times, the defendant claimed self-defense, testifying that Avie was

jealous, that he knew her to have violent 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

had responded to a domestic violence call. The officer testified that

Avie told him defendant accused her of having 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, the California

Supreme Court ruled that the statement was admissible under

Crawford pursuant to the doctrine of forfeiture by wrongdoing. The

court held that defendant had forfeited his right of confrontation

because he committed the murder, an intentional criminal act, that

rendered Avie unavailable.

The United States Supreme Courtreversed, finding that the theory

of forfeiture by wrongdoing, which was employed by the California

Supreme Court to find the out-of-court statement admissible, was not

a recognized exception to the sixth amendment confrontation

requirement. 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 497, 128 S. Ct. at 2684. In other

words, according to the Court, for forfeiture by wrongdoing to apply,

the evidence had to show that the defendant engaged in witness

tampering or some type of conduct designed to prevent the witness

from testifying, thwart the judicial process, or procure the witness’

absence 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 Constitution was adopted to admit statements
-22-

on the ground that the defendant’s crime was to blame for the

witness’ absence. The Court stated:

“The notion that judges may strip the defendant of a right that

the Constitution deems essential to a fair trial, on the basis of

a prior judicial assessment that the defendant is guilty as

charged, does not sit well with the right to trial by jury. It is

akin, one might say, to ‘dispensing with jury trial because a

defendant is obviously guilty.’ Crawford, 541 U.S., at 62.”

(Emphasis 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 confrontation rules might be applicable based on the status of

the victims, for example, where the victims are women in abusive

relationships. The Giles majority stated:

“The dissent closes by pointing out that a forfeiture rule

which ignores Crawford would be particularly helpful to

women in abusive relationships–or at least particularlyhelpful

in punishing their abusers. Not as helpful as the dissent

suggests, since only testimonial statements are excluded by

theConfrontation Clause. Statements to friends and neighbors

about abuse and intimidation, and statements to physicians in

the course of receiving treatment would be excluded, if at all,

only by hearsay rules, which are free to adopt the dissent’s

version of forfeiture by wrongdoing. In any event, we are

puzzled by the dissent’s decision to devote its peroration to

domestic abuse cases. Is the suggestion that we should have

one Confrontation Clause (the one the Framers adopted and

Crawford described) for all other crimes, but a special,

improvised, Confrontation Clause for those crimes that are

frequently directed against women? Domestic violence is an

intolerable offense that legislatures may choose to combat

through many means–from increasing criminal penalties to

adding resources for investigation and prosecution to funding

awareness and prevention campaigns. But for that serious

crime, as for others, abridging the constitutional rights of

criminal defendants is not in the State’s arsenal.” (Emphasis

in original.) Giles, 554 U.S. at ___, 171 L. Ed. 2d at 505-06,

128 S. Ct. at 2692-93.
-23-

The Giles majority conceded that domestic violence might be a

relevant factor in determining whether the forfeiture-by-wrongdoing

exception is applicable, stating:

“Acts of domestic violence often are intended to dissuade a

victim from resorting to outside help, and include conduct

designed to prevent testimony to police officers or

cooperation in criminal prosecutions. Where such an abusive

relationship culminates in murder, the evidence may support

a finding that the crime expressed the intent to isolate the

victim and to stop her from reporting abuse to the authorities

or cooperating with a criminal prosecution–rendering her

prior statements admissible under the forfeiture doctrine.”

Giles, 554 U.S. at ___, 171 L. Ed. 2d at 506, 128 S. Ct. at

2693.

Based on the above, the Giles majority makes clear that,

regardless of how expedient or beneficial it might be to the victim to

permit his or her unconfronted, testimonial hearsay to be admitted at

trial, the right of confrontation guaranteed an accused by our

Constitution must take precedence. The doctrine of forfeiture by

wrongdoing may not be employed to deny an accused his

confrontation right absent evidence that, when committing the crime

or other wrongdoing, the accused was motivated by the desire to

prevent the witness from testifying against him at trial.

Applying Giles to the case at bar, we find no evidence that

respondent ever committed any wrongdoing with the intended

purpose that Von be unavailable to testify at trial. It is true that sexual

abusers sometimes select children as their victims because children

are generally more vulnerable to threats and coercion due to their age

and immaturity. However, in the case at bar, there is no indication

that when respondent sexual assaulted Von, his assault was motivated

in any way by a desire to prevent Von from bearing witness against

him at trial. We recognize that, according to the record, after

respondent assaulted Von he made Von “pinky swear” not to tell

anyone what happened in an attempt to keep his crime a secret.

However, there is nothing in the record to indicate that when

respondent extracted the promise from Von, he did so in

contemplation of some future trial. Thus, whether Von’s refusal to

testify at trial was due to his embarrassment or because of his “pinky
-24-

swear” to respondent is of no matter. Respondent’s confrontation

rights may not be abridged unless he acted with the intended purpose

of procuring Von’s absence from trial. Since there is no evidence that

respondent intentionally committed any wrongdoing for the purpose

of procuring Von’s unavailability at trial, the forfeiture-bywrongdoing doctrine is inapplicable to the case at bar. Having

reached this determination, we will go on to determine whether the

admission of the testimonial statements to Officer Cure and Jackie

Weber, though error, was harmless.

3. Harmless Error

As noted in Stechly, Crawford violations are subject to harmlesserror review and the test is whether it appears beyond a reasonable

doubt that the error at issue did not contribute to the verdict obtained.

Stechly, 225 Ill. 2d at 304, citing People v. Patterson, 217 Ill. 2d 407,

428 (2005). When deciding whether error is harmless, a reviewing

court may (1) focus on the error to determine whether it might have

contributed to the conviction; (2) examine the other properly admitted

evidence to determine whether it overwhelmingly supports the

conviction; or (3) determine whether the improperly admitted

evidence is merely cumulative or duplicates properly admitted

evidence. Stechly, 225 Ill. 2d at 304-05, quoting Patterson, 217 Ill. 2d

at 428, citing People v. Wilkerson, 87 Ill. 2d 151, 157 (1981). In the

case at bar, we find that the properly admitted evidence

overwhelmingly supports the conviction and, for that reason, the

admission of Von’s testimonial statements to Officer Cure and Weber

was harmless beyond a reasonable doubt.

Unlike the situation in Stechly, here there was no inconsistency

regarding the perpetrator’s identity. The properly admitted testimony

of Von’s mother, Jacqueline M., revealed that, on the day in question,

Von came home sometime after noon accompanied by respondent.

Jacqueline heard respondent, who waited at the door, call to Von and

ask him to come back outside. Uncharacteristically, Von declined and

respondent left. Von, immediately upon arriving home, went directly

to the bathroom and began to act strangely: coughing, spitting, and

washing his mouth out with water. After returning to the bathroom a

second time to wash his mouth out with water, Von spontaneously

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 abuse Von said occurred and strongly

indicated that the abuse occurred very recently, at a time when Von

had been solely in respondent’s company. Respondent admitted at

trial that he alone walked Von home, through the wooded area. We

find that Jacqueline’s testimony about her observations of Von’s

behavior, in addition to her testimony regarding Von’s statement to

her, overwhelmingly supports the conviction in this case.

We recognize that in Stechly, a case similar to the one at bar, a

plurality of this court found the improper admission of testimonial

statements by two witnesses was not harmless. However, the

circumstances in Stechly were considerably different and distinguish

Stechly from the case before us. In Stechly, the five-year-old victim,

M.M., did not make an immediate outcry. Brenda Galete, M.M.’s

babysitter, learned from M.M. on January 13, 1999, that “Bob” had

sexually abused M.M. nearly a month earlier, in December 1998.

Upon obtaining this information, 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 Grote about the

sexual abuse by “Bob.” Grote did not inquire into who “Bob” was.

Instead, Joan identified “Bob” as defendant, Robert Stechly, who

lived in Joan’s apartment building and was, at that time, Joan’s

boyfriend. Subsequently, Stechly was arrested and charged with

predatory criminal sexual assault, criminal sexual assault, and

aggravated criminal sexual abuse of M.M.

At trial, a serious question arose concerning whether M.M. had,

in fact, identified defendant as her abuser. Prior to defendant’s trial,

at the reliability hearing, Joan testified that, on January 13, 1999, after

Galete came to her place of employment and they were en route to the

hospital, M.M. described an incident of sexual abuse and told her that

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

abuser as “Bob,” Joan said she had understood M.M. to mean the

defendant, Bob Stechly. At trial, however, Joan testified that, during

the trip to the hospital, M.M. actually told her that “Robert Stechly”

was the abuser, identifying him by name. This deviation in Joan’s

testimony became significant because Brenda Galete testified, in

contradiction to Joan’s testimony, that Bob Reilly, Joan’s nephew,

who also lived in an apartment in Joan’s building, babysat M.M. “a
-26-

lot” and that M.M. “acted strangely” around men in November 1998,

long before the time in December 1998 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 “Bob” was. Further, Galete testified that she did not

hear M.M. tell Joan anything about the abuse during the trip to the

hospital and that she believed that there were others who had

molested M.M., including Joan, M.M.’s mother. Also, although

defendant had confessed to sexually abusing M.M. after his arrest, the

confession was discredited at trial.

It is clear from the facts above that, in Stechly, the testimony

concerning M.M.’s hearsay statements was, with respect to

defendant’s identity, both inconsistent and the subject of some

dispute. Also, as the Stechly plurality pointed out, defendant’s

original jury trial resulted in a mistrial because the jury was unable to

reach a consensus on any of the counts. Though not dispositive, the

plurality believed that this fact lent credence to the notion that the

evidence of defendant’s guilt was closely balanced, even when the

improperly admitted evidence was taken into account.

Following the mistrial, defendant was found guilty after a

stipulated bench trial. The trial judge considered 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. identified her abuser only

as “Bob,” but Yates had testified that when he interviewed M.M. at

school, he began the interview by asking M.M. to “tell me about

Robert Stechly.” The testimony 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 over the identity of M.M.’s abuser

and, thus, was not simply cumulative to the properly admitted

evidence. Certainly, then, the properly admitted evidence, standing

alone, did not overwhelmingly establish the defendant’s guilt.

Unlike the situation in Stechly, in the case at bar, the properly

admitted testimony of Von’s mother, Jacqueline, was clear and

uncontroverted. It overwhelmingly established respondent’s guilt.

The improperly admitted evidence was largely repetitive of the

evidence presented by Jacqueline and did not resolve any material
-27-

issue. We conclude, therefore, that the admission of Von’s

testimonial statements made to Officer Cure and Weber, though error,

was, under the facts of this case, harmless beyond a reasonable doubt.

II. Constitutionality of Section 115–10

We note that the State argued in its petition for leave to appeal

and in its opening brief to this court that the appellate court below

found section 115–10 unconstitutional and, therefore, that it was

necessary for this court to consider whether the statute could be saved

by severing the offending portions of the statutory provision. In its

reply brief, however, the State concedes that there is no need to sever

any portion of the statute because the appellate court made only an asapplied finding of unconstitutionality and, thus, the statute will

continue to be enforceable in circumstances where it is not

unconstitutional. The State cites People v. Brady, 369 Ill. App. 3d

836, 847-48 (2007), which held that when a statute is unconstitutional

as applied, the State may continue to enforce the statute in

circumstances where it is not unconstitutional.

The State has withdrawn the part of its opening brief wherein it

addressed the constitutionality and severability of section 115–10.

Consequently, the issue is no longer before us.

CONCLUSION

We agree with the appellate court’s ruling that Von’s videotaped

statement to child advocate Jackie Weber was testimonial under

Crawford and, for that reason, the admission of the statement at

respondent’s adjudication trial was in violation of respondent’s

confrontation right. We have found, however, that the error in

admitting this statement was harmless beyond a reasonable doubt

because the properly admitted evidence overwhelmingly supports

respondent’s conviction. Accordingly, we reverse the appellate court

judgment, which reversed respondent’s adjudication, and we remand

to the circuit court with instructions that respondent’s adjudication be

reinstated.

Appellate court judgment reversed;
-28-

 cause remanded.

JUSTICE THOMAS, specially concurring:

I agree entirely with the outcome and analysis in this case,

including the conclusion that the erroneous admission of Von’s

statements to Cure and Weber was harmless beyond a reasonable

doubt. I write separately only to reaffirm my belief that the erroneous

admission of the statements at issue in Stechly was likewise harmless

beyond a reasonable doubt. See Stechly, 225 Ill. 2d at 346-53

(Thomas, C.J., dissenting, joined by Karmeier, J.).

JUSTICE KILBRIDE, also specially concurring:

I agree with the majority’s holding in all respects other than its

framework for determining whether the statement to child advocate

Jacqueline Weber was testimonial. As set forth in my dissent in

Stechly, I believe the proper focus of the inquiry is whether a

reasonable adult in the declarant’s position would anticipate that the

statement likely would be used in a criminal prosecution. Stechly, 225

Ill. 2d at 324-25 (Kilbride, J., concurring in part and dissenting in

part). Applying that standard to the facts of this case results in

agreement with the majority’s conclusion that the statement to Weber

was testimonial. Accordingly, I specially concur in the majority’s

decision.

In Stechly, the plurality devised a test for determining whether a

statement is testimonial that shifts the focus from the declarant’s

intent to that of the questioner depending on the circumstances of the

case. See Stechly, 225 Ill. 2d at 284-92. The plurality held that the

objective intent of the declarant is the focus of the inquiry when a

statement is not produced by law enforcement interrogation. Stechly,

225 Ill. 2d at 289. The standard is whether the objective

circumstances would lead a reasonable person to anticipate that his or

her statement likely would be used in a criminal prosecution. Stechly,

225 Ill. 2d at 292. When a statement is produced by law enforcement

interrogation, however, the focus is on the questioner’s objective

intent in eliciting the statement. Stechly, 225 Ill. 2d at 284-85.

The shifting focus of the inquiry from Stechly was based on the

plurality’s reading of the Supreme Court’s decision in Davis v.
-29-

Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266

(2006). Stechly, 225 Ill. 2d at 267-68. The plurality acknowledged

that, prior to Davis, many authorities had concluded that the focus of

the inquiry was always on the declarant’s intent in giving the

statement. Stechly, 225 Ill. 2d at 290-91. According to the plurality,

though, Davis modified the analysis by indicating that when a

statement is the product of police questioning, the intent of the law

enforcement officer in taking the statement is the focus. Stechly, 225

Ill. 2d at 267.

I continue to disagree with the plurality’s interpretation of Davis.

As explained in my separate writing in Stechly, the Supreme Court’s

decision in Davis did not change the focus 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 declarant remains

the focus of the inquiry. As noted in Davis, “even when interrogation

exists, it is in the final analysis the declarant’s statements, not the

interrogator’s questions, that the Confrontation 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 plurality acknowledged

“ultimately 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 intent of the declarant is always the proper focus in

determining whether a statement is testimonial.

In Stechly, I also disagreed with the plurality’s conclusion that a

child’s age “is among the circumstances potentially relevant to

evaluating whether the objective circumstances of the statement

would have led a reasonable declarant to understand that his or her

statement could be used in a subsequent prosecution of the

defendant.” Stechly, 225 Ill. 2d at 296. In my view, the cases deciding

that a child’s age should not be considered are persuasive. Stechly,

225 Ill. 2d at 325 (Kilbride, J., concurring in part and dissenting in

part) (citing 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)).

Specifically, the Snowden court recognized that the confrontation

clause is designed to protect fundamental rights of the accused and

the interest in shielding victims from testifying may never outweigh
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the explicit constitutional right to be confronted with the witnesses at

trial. Snowden, 385 Md. at 90, 867 A.2d at 329, citing Coy v. Iowa,

487 U.S. 1012, 1019-21, 101 L. Ed. 2d 857, 866-67, 108 S. Ct. 2798,

2802-03 (1988). Accordingly, the court concluded that an objective

person standard, rather than an objective child of the witness’ age,

should be used in determining whether a statement is testimonial and

subject to the confrontation clause guarantee. Snowden, 385 Md. at

90-91, 867 A.2d at 329.

As noted, the Stechly plurality held that a child’s age may be

considered in deciding whether a reasonable declarant would

comprehend that his or her statement could be used 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 certain

out-of-court statements bychildren simply because they are incapable

of anticipating that their statements could be used in a subsequent

prosecution. The confrontation clause provides, however, that a

criminal defendant “shall enjoy the right *** to be confronted with

the witnesses against him.” U.S. Const., amend. VI. The plain

language of the confrontation clause applies to all witnesses. The

Stechly plurality’s framework for determining whether a statement is

testimonial cannot be squared with the confrontation clause because

it exempts an entire category of out-of-court statements from

confrontation clause protections. Stechly, 225 Ill. 2d at 326 (Kilbride,

J., concurring in part and dissenting in part).

Although testimonial out-of-court statements by child witnesses

clearly may not be exempted from the protections of the confrontation

clause, I emphasize that there are a number of ways to reduce any

impact of testifying. See Stechly, 225 Ill. 2d at 326-27 (Kilbride, J.,

concurring in part and dissenting in part). In particular, it may be

appropriate to expand the use of closed-circuit television as a way to

reduce or eliminate the impact of testifying. See 725 ILCS 5/106B–5

(West 2006). There may also be other ways to eliminate any adverse

effects of testifying in compliance with the confrontation clause. The

interest in shielding a witness from testifying, however, may not

outweigh a defendant’s constitutional right to be confronted with the

witnesses at 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.
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In sum, I contend the applicable standard for determining whether

Von’s statement is testimonial is whether a reasonable adult in his

position would expect that the statement likely would be used in 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

in an interview at a child advocacy center. The circumstances of the

interview were sufficiently formal and structured to result in a solemn

statement. I agree with the majority that there is no indication that the

primary purpose of the interview was for treatment or to protect Von

from an ongoing emergency. The interview was focused on

recounting past events. Thus, Von was acting in a manner analogous

to a witness at trial by describing past events. Also, a reasonable adult

may have recognized that the child advocate was a “mandated

reporter” obligated to share information with law enforcement. See

55 ILCS 80/4(c) (West 2002). Given these objective circumstances,

a reasonable adult in Von’s position would anticipate that his

statement likely would be used in a criminal prosecution.

Thus, although I disagree with the majority’s framework for

determining whether a statement is testimonial, I agree that Von’s

statement to Weber was testimonial and was admitted in violation of

the confrontation clause. I also agree with the majority’s decision on

forfeiture by wrongdoing and harmless error. Accordingly, I specially

concur in the majority’s judgment.