## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Richter , 2012 IL App (4th) 101025

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. WI L L IAM J . RI CHTER, Defe ndant-Appe llant.

District & N o. Four th District Docke t No. 4-10-1025

Filed October 22, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In defe ndant’s trial for the murder of the mother of his two children, the admission of som e of the victim’s hear say statements t o friends, family members, and cowor

kers did not violate section 115-10.2a of the Code of Criminal Proc edure dealing with the admission of prior statements in domestic violence prosec utions or defe ndant’s right to confrontation.

Dec ision Under
Review Appea l from the Circuit Court of Macon County
, No. 08-CF- 1 4 7 4 ; t h e Hon. L isa Holder White, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Kar en Munoz, and Gar y R. Pe terson, all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

J ack Ahol a, State’s Attorney
, of Dec atur (Patrick Delfino, Robert J

. Bide rman, and Ana s t acia R. Br ooks, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE STEI GMANN delivere d the judgme nt of the court, with opinion.
J ustice Appleton c oncurr ed in the judg ment and opinion.
J ustice Pope spec ially

concur red in the judgment, with opinion.

OP INION

¶ 1 In October 2008, the S tate charg ed defenda nt, Wil liam J

. Richter, with t hree counts of fi rs t d egree murder (720 I L CS 5/9-1(a) (1), (a) (2) (West 2008)). In August 2010, the State filed a motion in limine
, seeking to admit numerous statements the victim made to others pursuant to section 115-10.2a of the Code of Criminal Procedur e of 1963 (Code) (725 I L CS 5/115-10.2a (West 2010)). Following a September 2010 hearing, the trial court g rante d the State’s motion as to the majority of the statements, excluding only some statements that the victim made to two cowor kers. Following an October 2010 trial, a jury convicted defe ndant of one count of first degree murder. The court later sentenc ed defe ndant to 75 year s in prison. ¶ 2 Def

endant appea ls, arguing that the trial court abused its discretion by g ranting portions of the State’s motion in limine

. Specifica lly
, defe ndant contends that (1) the c ourt err ed by admitting numerous hear say statements the victim made to friends, family member s , and coworkers under section 115-10.2a of the Code, and (2) the court’s decision to admit numerous hea

rsay statements violated his six th amendment right to confrontation. ¶ 3 We disag ree and af firm.

¶ 4 I . BA CKGROUND ¶ 5 In October

2008, the State charg ed defenda nt with three counts of first degree murder, alleg ing that on Sunday , August 24, 2008, defe ndant, whil e ar med with a fire arm, shot the mother of his two children, Dawn Marquis, in the head, killing her. 720 I L CS 5/ 9 -1 (a) (1), (a) (2) (West 2008); 730 I L CS 5/5-8-1(a )(1) (d)( i) (West 2008) (text of section eff ective until J une 1, 2009).

-2-¶ 6 A. The State’ s Motion in Limine

¶ 7 In August 2010, the S tate filed a mot ion in limine
, seeking to admit numerous hea rsay statements Dawn made primarily to friends, family members, and cowor k er s

. T he State’s motion (1) listed eac h witness who wo u l d offe r hear say testimony and (2) identified eac h hear say statement of Dawn the State soug ht t o elicit from that witness and to admit under section 115-10.2a of the Code. That section permits the admission of hear say statements by

cer tain persons in domestic violence prosec utio n s wh e n th e d e c la r a nt is unavailable to testify

. Specifica lly
, the State sought to introduce Dawn’ s hear say statements at defe ndant’s trial to show (1) de fenda

nt intended to kill Dawn and ( 2) def endant’ s motive for doingso.

¶ 8 1. The State’s Evide nce at the H earing on the Motion in Limine ¶ 9 At the September 2010 he aringon the State’s motion in limine , the State prese nted the followingevidenc e:

¶ 10 a. Da wn’s Statements to Her

Mother, Nor

ma ¶ 11 Norma Marquis, Dawn’ s mother, testified that Dawn lived with defe ndant for 17 y ear s and had two children by him during their relationship, 17-year -old Dalton Marquis and 15-
y ear -old Cry stal Marquis. (Da wn had two other adult children from a previous relationship, Amanda Carter and Cory Marquis.) In August 2008, Dawn told Norma, with whom she was then residing
, that she had left defe ndant beca use she could no longe r tolerate his phy sical, mental, and verba l abuse. Norma testified that Dawn told her that Dawn was in the proce ss of obtaining an apar

tment for herse lf, Dalton, and Cry stal, but defe ndant would not agree to relinquish custody

of their c hildren.

¶ 12 b. Dawn’ s Statements to Her Son Cory ¶ 13 The State introduced an August 4, 2008, rec ording of a conver sation betwee n Dawn and Cory that took place while Cory was incar cer ated in the I llinois Depa rtment of Correc tions. During their conver sation, Dawn told Cory
, in part, that (1 ) s h e was moving from defe ndant’s home a

nd (2) de fenda

nt threate ned to kill her.

¶ 14 c. Da wn’s Statements to a The rapist ¶ 15 On August 7, 2008, Timothy M o o re , a psycholog ical thera pist, met individually

with Dawn and defe ndant in an attempt to help them rec oncile their relationship. Dawn informed Moore that she intended to leave defe ndant. Dawn explained that she was afr aid of defe ndant beca use of his “ra dical” mood swing s, rec ounting that the previous wee kend defe ndant had
g rabbe d her by her hair and threatened her, as follows: “ ‘I f you leave
, we might as well both die.’ ” Dawn also told Moore that (1) defe ndant’s will left their children to his sister, (2) she intended to re nt an apa

rtment for he r childre n, and (3) she had started a relationship with a
young er m an , wh i ch she char acte rized as “ ‘not about sex but about someone caring for her.’ ”

-3-¶ 16 d. Dawn’ s Statements to Her Ne ighbor s

¶ 17 i. Kimberly Smith-Chandler ¶ 18 In J une 2008, Dawn told Smit h-Chandler
, who was a neighbor, that she had to move out of the home she share d with defe ndant. Smit h-Chandler noted that Dawn was committed to leaving defe ndant but was afr aid to do so beca use Dawn believed defe ndant would kill her.

¶ 19 ii. Rhonda W illis ¶ 20 In April 2008, Wil lis–a branc h manag er for a temporar y employ ment ag ency and Dawn’ s neig hbor–assisted Dawn i n obtaining employ ment. On T h u rs day
, August 21, 2008, Wil lis

s p oke with Dawn about an elec tronic mail messag e (e- mail) that was sent to th e age n cy ’s
corpor ate office
, purportedly from Dawn, admitting illega l drug use and expressing ang er at her fellow employ ees. Dawn informed Wil lis that she had not sent the e-ma il and conveyed her frustration that defe ndant was attempting to ruin her plans to beg in a new life. Dawn told Wil lis that defe ndant had threatened to kill her “many times.” Specifica lly
, Dawn stated that, “I ’m telling ever

y body I know that it will happen, and [defendant] may not do it, but he will have somebody do it if he does not do it.” Dawn explained to Wil lis that she was constantly “lookingover [her] shoulder” be cause she wa s afr aid of de fenda nt.

¶ 21 e. Da wn’s Statements to Her

Work Supervisor ¶ 22 Candy Petersen testified that she bec ame Da wn’s work supervisor three months be fore her death. Petersen stated that, initially
, Dawn was a “fa ithful” employ ee who came to work

on time and would work late when require d. About four wee ks befor e Dawn’ s death, Petersen noticed a chang e in Dawn’ s mood in that she beca me upset, nervous, and afr aid, and beg an cry ing at work. After Dawn left the apar tment she share d with de fenda nt a nd moved in with her mother, Dawn confide d in Petersen that she believed defe ndant was g oing to kill her b ecause she was planning to move into her own apar tment. The day befor e her death, Dawn beca

me “ver y nervous” when explaining to Petersen that she met defen d an t t h e previous night and he asked her to come back. When Dawn responde d that she was moving into her own place
, defe ndant made a g esture wi th his hands–re prese nting a gun–and told her, “ ‘You’r e dead.’ ” Peterson also stated t hat either Dalton or Cry stal told Dawn that defe ndant “had gotten passports to leave the country .” Peterson added that she provided police a sta t em en t s hortly afte r Dawn’ s death, in which she stated that Dawn told her she found passports for

defe ndant, Dalton, and Cry stal.

¶ 23 f. Da wn’s Statements to Her

Coworker s ¶ 24 i. Ashley Collins ¶ 25 Colli ns, one of Dawn’ s cowor kers, testified that in J une 2008, Dawn beg an speakingto her about her relationship with defe ndant, which Colli ns noted was “neve r positive.” Colli ns descr ibed an argument that occur red afte r Dawn returne d from the g roce ry store because defe ndant believed that she had be en g one too long . Dawn a lso told Colli ns that defe ndant

was “stalking her” in that she suspected defe ndant was following her afte r she left her home

-4-to g o to work. Approxim ately three wee ks befor e h er death, Dawn told Colli ns about her

plans to leave defe ndant and move into her own apar tment. Dawn wanted to take her children with her, but defe ndant would not allow it. Colli ns noticed that Dawn beca me upset beca

use she fea red defe ndant would kill her if she car ried out her plans. Colli ns rec alled that the day befor e her death, Dawn was extremely upset, stating t h at “something bad was g oing to happen to her,” but Colli ns did not inquire further

. Colli ns further re ca l l ed an incident in which Da wn told her that she ha d found passports for defe ndant, Dalton, and Cry stal.

¶ 26 ii. Sonny Tulop ¶ 27 After meeting Dawn at work, Tulop beg an a dating relationship with Dawn that beca me intimate. Approxim ately three wee ks befor e her death, Dawn told Tulop that defe ndant threatened to kill her if she continued see ing him.

¶ 28 iii. Jame s Bird ¶ 29 The day befor e her death, Dawn told Bird that she had dinner with defe ndant the previous night, and he asked her to return home. When Dawn ref used, defe ndant made a g esture with h i s h and, repr esenting a gun, point ed to Dawn, and s aid, “ ‘B ang , bitch,’ ” “ ‘I t’s on,’ ” o r “ ‘You’r e dead.’ ” Dawn also told Bird that she did not believe defe ndant could kill her but that defe ndant would hire someone to murder her. Dawn planned to leave work ear ly beca use she believed defe ndant had someone following her. Bird added that Dawn appea red scar ed.

¶ 30 iv. Eddie Long ¶ 31 L o n g fi rs t m et Dawn at work and knew defe ndant from his childhood, but he had not continued that friendship. In ear ly August 2008, L ong rec eived a tel ep h o ne call from defe ndant. Def

endant first asked L ong if his phone was being “t apped or rec orded.” After L ong said no, defe ndant then asked him if he knew of anyone at Dawn’ s work that drove a g ree n pickup truck. L ong told defe ndant that he did not. The day befor e Dawn’ s death, Dawn told L ong that she was upset beca use she believed defe ndant was attempting to sell a car to raise mone y

to have he r killed.

¶ 32 v. Marcus Mc Knight ¶ 33 Sometime during her employ ment, Dawn approa ched McKnight cry ing, stating that she

was afr aid to g o home beca use something was g oing to ha ppen. McKnight could not rec all the date of

their conve rsation.

¶ 34 g . Dawn’ s Statements to the Apartment Complex M anag er ¶ 35 Kar i Kava

naugh testified that on Thursday
, August 21, 2 0 0 8
, Da wn i nquired a bout renting a two-bedr oom apar tment for herse lf and her two children. Dawn explained that she

was late for their appointment beca use she had to resolve an issue reg arding a work e-ma il. Dawn told Kava

naugh that she did not want defe ndant to know that she was ren t ing an

-5-ap artment. Kava naugh’s impression was that Dawn was afr aid of defe ndant based on her actions, but she ac knowledg ed that Da wn did not specifica lly

tell her that she w as af

raid.

¶ 36 h. Dawn’ s Text M essag e to Her Daughter ¶ 37 De ca tu r p o l i ce d ep ar t m en t Detective Charles Hendr icks testified that during h i s investigation of Dawn’ s death, he questioned Cry stal about a telephone text mess age she

rec eived from Da

wn the eve ning prior to Dawn’ s death. Dawn’ s messag e rea d, as follows:
“I g ot you [ sic ] messag e, bu t I can’t talk to [defendant]. All we do is argue. He become s angry and starts thre ateningme. Well, enoug h of that. Do y ou have a s oftball
g ame tourna

ment tomorrow and when[? ]” Hendr icks (1) confirme d that Cry stal had a softball g ame the following day and (2) noted that he did not persona lly

verify that the text m essag e orig inated fr om Dawn’ s phone.

¶ 38 i. Dawn’ s Recorde d Messag e to Her Attorney ’s Answe ringMachine ¶ 39 On Friday
, August 22, 2008, J ennife r Golladay
, the secr etar y for attorney Gu y C as ey , answe red a phone call from a male caller
, inquiring as to whether Dawn had made it to her appointment with Casey , which had occur red earlier that day

. On the morningof Monday
, August 25, 2008–the day afte r Da wn’s death–Golladay

listened to messag es t hat had been left on Casey ’s bus iness telephone vo i ce m ail during the weekend. The following messag e

was re ceive d on Saturday , August 23, 2008: “Hi, I ’m t ry i n g t o reach Mister Casey

. This is Dawn Marquis. I am leaving him a messag e. The person who called, cla i m i n g t o be my fathe r was not my fathe r. Also [defendant] is threatening me with paying people from out of town to take car e of me and the guy I was with. My son called me late last night and said that [defendant] was g iving his car s awa

y to some people out of Chicag o and said he wa s ac t i n g cr azy , so, y eah, [defendant] drove by

me and he ld his finge rs up and pointed at m e and made a g esture like a gun so I am fee ling very , very threatened rig ht now and so just g ive me a call when
you g et a c hance . Thanks.” (Da wn’s father, Dw ight Ma

rquis, testified that he did not ca ll Casey .)

¶ 40 2. Defendant’ s Evidenc e at the Hearing on the
Motion in Li mine and the State’ s Rebuttal ¶ 41 In his written response to the State’s motio n i n l i mi n e , d efendant provided sepa rate summaries of interviews police conducte d with D alton on Sunday and Monday
, August 24 and 25, 2008, to show that the hear say s t at em en t s of Dawn that the State soug ht to admit

wer e not reliable

. At the hear ing on the State’s motion in limine
, defe ndant informed the trial
court that in the interest of judicial economy , the State had agree d to perm i t defe ndant to introduce the summaries in lieu of Dalton’s testimony

. In exchang e, defe ndant agree d not to object to the State’s introduction of a rec ording
, showing an August 25, 2008, interview that police conduc ted with Dalton. The c ourt ac cepte d the par ties’ agree ment.

-6-¶ 42 The Sunday
, August 24, 2008, sy nopsis of Dalton’s statements to police rec ounted that Dalton (1) was not awa

re of any phy sical violence betwee n defe ndant and Dawn, and (2) “had n ever hear d [defendant] threaten Dawn.” The Monday
, August 25, 2008, sy nopsis, stated in pertinent pa

rt, the following : “Notwithstanding statem ents by Dawn *** to both *** Colli ns and *** Peterson that Dalton had told her that he had overhe ard [defendant] talking to some guy s from Chicag o, offe ring to g ive awa y a car if they would kill Dawn, Dalton states that he never hear d [defendant] say that and that he (Da lton) never said any thing to Dawn like that. He reiter ated in the same statement when asked, if on that day he had hear d [defendant] say any thing to Dawn about shooting her or having her shot ‘he never hear d [defendant] say any thing like that.’ When asked in the same statement ‘if he ever hear d [defendant] say any thing to indicate he would compensate someone for causing some kin d of harm to Dawn, or ever heard [defendant] make any kinds of threats to Dawn” Dalton stated ‘he had neve r hea

rd any of this’.” (Collins’ testimony at the hearing on the State’s motion in limine did n ot include any evidenc e re g arding“guy s from Chicag o.”) ¶ 43 In rebuttal, the State pla y ed for the t rial court the Monday , August 25, 2008, recor ding of Dalton explaining to police, in part, that defe ndant made him call Dawn and falsely claim that defe ndant was “ actingcrazy ” and g iving a way his cars to men f

rom Chicag o.

¶ 44 3. The Parties’ Arguments to the Trial Court ¶ 45 Af

t er t h e prese ntation of evidenc e, the trial court soug ht clar ification on the spec if i c statements the State sought to admit under section 115-10.2a of the Code, a s follows:
“THE COURT: [S ection 115-10.2a] applies to statements that are not spec i fi cally

cover ed by any other hear say exception. *** [The court does not] think [t he State] g et[s] to, under this section, argue in the alternative. *** [C ]ertainly
, [the St at e] ca n s ay , [‘] we’ re g oing to ask that it be admitted for this purpose and [t he State] think[ s] there is an exception that applies.[’] [THE STATE]: No. [The State is] sayi n g that you have to show substantial
guara ntees *** of tr

ustworthiness as other he arsa y exceptions. THE COURT: Right. [THE STATE]: So *** section [115-10.2a] would not apply to [Dawn’s] statements she was g oing to g et an apar tment. Those [st atements] would come in under the state of mind [ex ception]

. What [t he State is] saying is that the same ty pe of statements that [Dawn is] making at the same time would have the sa me guara ntees of trustworthiness beca use of this other r ecognized hearsa y exception.
* * *
THE COURT: Okay

. And tell [t he co u rt ] specific ally what statements you’re ref err ing to.
* * * [THE STATE] : The statements that [Dawn] believed [defe ndant] wa s g oing to kill

-7-her; that she w as af raid of him; that he thre atene d to kill her.” ¶ 46 Def

endant argued, in part, that Dawn’ s statements should not be admitted under se ction 115-10.2a beca

use they did not have “substantial guara ntees of trustworthiness.” In support of his argument, defe ndant contende d that Dawn had been “living a lie” by “having an aff air wi t h s o m eo n e other than her signific ant other with whom she had been living with for 17
y ear s.” Def

endant also noted that (1) an officia l from the Depa rtment of Homeland Security conclude d that passports wer e not issued to defe ndant, Dalt o n , o r Cry stal, which was contra ry to D awn’ s claim to he r cowor ker, Colli ns, and her work supervisor, Peterson, and (2) Dalton expressly denied that he had called Dawn and told her that “he hear d [defendant]
say these [C hicag o] guy s wer e being hired to kill [Dawn] and g et pay ment throug h automobiles.”

¶ 47 4. The Trial Court’s Decision ¶ 48 The trial court took the matter under advisement and later issued a written order
, in which the court i d en t i fi ed the following fac tors it considere d: (1) what motivation the specific witness might have to testify
, (2) whether the statements wer e subject to cross-e x amination, (3) whether the statements wer e based on Dawn’ s persona l knowledg e, (4) the spontaneity of t he st atement s , (5 ) t he lack of m otive to fabr icate the statements, (6) whether there was consistent repe tition, (7) whether Dawn was under duress or pressure when she made the statements, (8) whether Dawn re ca n t ed o r rea ffirme d her statements, (9) whether the
statements wer e made in response to leading questions, ( 10) the time that elapse d betwee n

eac h incident and Dawn’ s statements about that incident to others, and (11) the exis tence of
any reliable evidenc e that ref uted Dawn’ s statements. After considering these fac tors under the totality

of the circ umstances, the court g rante d the State’s motion in limine as to all the afor ementioned state ments except the statements Da wn made to Tulop a

nd McKnight.

¶ 49 B. The Evidence Presented at Defe ndant’s Tria l ¶ 50 1. The State’s Evide nce ¶ 51 During defe ndant’s October 2010 jury trial, the State prese nted the testimony of Norma, Wil lis, Petersen, Chandler, Colli ns, Bird, L ong , Kava naugh, Hendricks, and Golladay
, all of whom testified consistently with their respe ctive testimony at the heari n g on the State’s motion in limine conce rning the specific statements Dawn made to eac h of them. Wit h reg ard to the testimony provided by Colli ns, howeve r, neither the State nor defe ndant elicited any testimony about the passpor

ts Dawn purpor

tedly found. ¶ 52 Cory (Da

wn’s adult son) testified that on August 3, 2008, he called defe ndant at his home from prison. There afte r, the State introduced a rec ording of Cory ’s conv er s ation with defe ndant, which th e S t ate played for the jury

. The rec ording contained, in part, the following

. ¶ 53 Def

endant informed Cory that (1) Dawn wa s t ra v el i n g to visit him and (2) he nee ded Cory ’s help to identify Dawn’ s new boy friend so that he co u l d “b ea t the mother fucke r down.” Def

endant stated that he had sche duled an a ppointment with a marria g e counselor,

-8-but if Dawn moved out of their home, he would die befor e he would lose custody of his

children, Dalton and Cry stal. When Cory asked defe ndant how he was g oing to maintain their standar d of living w ithout Dawn, def endant r esponded, a s follows:
“I ’m probably go n n a have to sell the house and, I
, I am keepin’ the kids, Cory

. There ’s no doubt in my mind about that, or I ’m g oin’ in the dirt. You understand? That’s for sure. That’s 125% for sure, on my life. I don’t car e if fuckin’ 20 s erg eants come in this mother fucke r. I will fuckin’ g o banana s. I will torch this mother fucke r and g o afte r

ever y body . That ain’t ha

ppenin’ in this lifetime, Cory .” ¶ 54 The State a lso play ed for the j ury a recording

of an August 4, 2008, conversation Cory had with def

endant a nd Dawn, which showed, in pa rt, the following

. ¶ 55 Def

endant informed C ory that Dawn was i n the process o f m oving out, but she agree d
to g o to counseling

. Cory then asked to speak with Dawn. Cory asked Dawn n o t to leave until he was there to as s i s t h er, but Dawn responde d that she could not wait for him to be rele ased from prison. Dawn explained that “ ‘[ e] v ery day [defendant] is in my fac e, [defendant is] threatening me every day .’ ” Dawn added that, “ ‘one minute [defendant is]
sorry and the ne x t minute he’s all up in my fac e. [Defe ndant is] gonna kill my ass.’ ” ¶ 56 Moore (t h e thera pist) testified that on August 7, 2008, he met individually with Dawn and defe ndant to attempt a rec onciliation. Moore noted that Dawn had not made a definitive decision reg arding whether she would rec oncile with defe ndant, but Moore op in e d th a t D a wn “see med to be leaning heavily toward not returning .” Dawn told Moore that (1) defe ndant’s mood would swing radic ally ; (2) defe ndant had rec ently inflicted phy sical abuse that cause d her to require stitches; (3) the previous wee kend, defe ndant had g rabbe d her by her hair and told her that, “ ‘I f you leave
, we might as well both die’ ”; (4) defe ndant stated that his will left their children to his sister; (5) she no longe r car ed for defe ndant; and (6) she intended to rent a n apar tment for six months. ¶ 57 After

their re spective a

ppointments had ended, defenda nt called Moore later

that same day and asked him about Dawn’ s attitude toward rec onciliation. Moore informed defe ndant that it was “hig hly doubtful” Dawn would return. Moore descr ibed defe ndant’s demea nor as “a fr ai d” and “nee dy .” Moore also testified that Dawn did not tell him that defe ndant was attempting to kill her or that a substantial history of phy si ca l ab u s e exis ted during her relationship wit h defe ndant. ¶ 58 Casey

(the attorney

) testified that on August 18, 2008, he met Dawn for an initial leg al consultation. Dawn explained to Casey that she was s ep ar at i n g from defe ndant and was

conce rned about child custody and proper ty issues. Four day s later, Dawn reta ined Casey as her lawyer. Be cause Dawn expressed conce rn for her persona l safe ty , Casey asked Dawn to consider obtaining an order of protec tion ag ainst defe ndant. The following Monday
, Casey lear ned of Dawn’ s death and contac ted police about t h e m essag e Dawn left on his office voicemail. ¶ 59 Dalton (Da

wn’s minor son) testified that he called Da wn o n August 22, 2008. Dalton could not reme mber the subject of the call, but he denied that he spoke t o Dawn about defe ndant’s g iving his car s to “guy s from Chicag o” who wer e at defe ndant’s home that night. Specifica lly , Dalton testified, as f ollows:

-9-“[PR OSECUTOR:] Do you rec all telling [pol ice] that it was not true that there wer e any guy s at the house, but that [defendant] told you to ca l l [ Da wn ] and tell her those things? [DAL TON: De fenda

nt] was drunk that night.

* * * [P ROSECUTOR : ] W ell, the question is, do you rec all telling [pol ice] that [defendant] put y ou up to telling those thing s to [ Dawn]? [DAL TON:] No.” The State then introduc ed and pla y ed for the jury an August 25, 2008, recor ding of Dalton explaining to police that defe ndant made him call Dawn and falsely claim that defe ndant was “ac ting c razy” and g iving a way his cars to men f

rom Chicag o. ¶ 60 Amanda (Da

wn’s adult daughter) testified that she lived with Dawn and defe ndant until 2 0 0 6

. P ri or to moving out, Amanda interac ted daily with J oe Hoffma n, who worke d fo r defe ndant in his auto repa ir business. Amanda described Hoffma n as an alcoholic who lived in a campe r behind defe ndant’s home. Def endant paid Hoffma

n for his work by (1) providing him a place to stay , (2) supplying him food, beer
, cig are ttes, and cellular phone service
, and (3) dr iving him to various locations. ¶ 61 On Fr iday
, August 22, 2008, Amanda called Dawn and asked if she would come to the local hospital e merg ency room beca use Amanda had suffe red a seizure. As they waited for medical assistance
, Dawn rec eived a call from Dalton. Amanda overhe ard Dalton tell Dawn that defe ndant was at his home “ac ting crazy ” but did not testify further to any thing else Dalton may have said. S h ortly there afte r, defe ndant called. Amanda overhe ard defe ndant

acc use Dawn of lying when Dawn told him she was at the hospital. Def endant called a second time and asked Dawn when she was removing her belong ings from his home. When Dawn responde d t h at she would do so when she was rea dy
, defe ndant ended the

conver sation. Five minutes later , defe ndant called a third time and told Dawn, “ ‘[W ]hen I

see you, you’re g onna be dead. I ’m g onna shoot you.’ ” Dawn hung up without responding

. Amanda noted that in J uly 2007, defe ndant owned a gun that he kept locked in a “saf e box ” in his room. Amanda also noted that defe ndant (1) owned a Chevy S-10 pickup truck and (2) stored seve ral g

uns in the attic of his house. ¶ 62 Cry stal (Da

wn’s minor daughter) testified t h at s h e h ad known Hoffma n all her life

. Cry stal’s testimony was consistent with Amanda’ s te s ti mo ny r e g a r d in g H o f f ma n’s demea nor and li festyle. C ry stal stated t hat i f defendant could not drive Hoffm an wh ere he wanted t o g o, Hoffma

n would ride his bike to his destination. Cry stal considere d Hoffma n part of her family , noting that de fenda nt and Hoff

man ac ted like brother s. ¶ 63 On S aturda

y , August 23, 2008, Cry stal spoke with Dawn and asked Dawn to drive her
to her softball g ame, which was schedule d for 12:15 p.m. the next day

. Dawn agree d, stating that she would ca ll her as she approa ched de fenda nt’s residenc e. ¶ 64 The following morning, C ry stal attempted to l eave defe ndant’s home and wait outside for Dawn. Def

endant asked her to wait inside while he g ather ed Dawn’ s mail. After g iving Cry stal the mail, defe ndan t asked her to play a g ame with him while she waited. Cry stal

-10-found def endant’ s reque st odd beca use he did not usually

play g ames that e arly

in the day

. After playing one g ame, Cry stal called Dawn, but her call went unanswe red. Therea ft er, Cry stal spotted Dawn’ s car in the drivewa y with the driver’ s door open. C ry s t al got into Dawn’ s car and observe d Dawn slumped over the cente r console. When she attempted to g et Dawn’ s attention, she notic ed blood flowing from Dawn’ s head. Cry stal exit ed the car , flag g ed down f

riends who we re dr iving to the softba ll game, and c alled the police

. ¶ 65 J ames Rey

nolds testified that at approximately 9:1 5 a. m

. o n S u n d ay , Au gu s t 2 4
, 2008–the day Dawn was shot–he arr ived at his mother’s home, which was located acr oss the
street from defe ndant’s residenc e. As he approa ched that home, Rey no l d s s aw defe ndant, whom he grewup with, talking to Hof fman in the front y ard of

defe ndant’s home. ¶ 66 Dec atur police detec tive Andre w Hasting s testified that h e re co rded the interview he conducte d with d ef

en d ant at the police station shortly afte r Dawn’ s death. During that interview, defe ndan t wa s combative beca use Hasting s questioned him reg arding his relationship with Dawn, which defe ndant believed was irrele vant. Defen dant agree d to submit to a gu np owder residue test and provided police the clothes he was wea ring

. Def endant den i ed any involvement in Dawn’ s shooting and ref used to speak further with Hasting s. (De fenda

nt’s videotaped interview was sh o wn t o the jury .) Hasting s noted that Hoffma n’s name was mentioned sever al tim es du ri n g the course of his investigation. Ha s tings later lear

ned that Hoffma

n was being held by police in L akela nd, Flo ri d a. Approxim ately one month a fter Dawn’ s death, Hasting s trave led to F lorida, took Hoffman into custody , and re turned with him to I llinois

. ¶ 67 Hoffma

n testified that he first met de fenda nt in 1991, and shortly

there afte r, def

endant hired him as a mecha

nic. Initially
, Ho ff

m an p ai d defe ndant rent to live in a shed in the backyard of the home defe ndant share d with Dawn. Six months l at er , Hoffma n beg an perf orming various chores, such as m owing
, in exchang e for h i s rent. Hoffman eventually moved into a small campe r, which was located in the backyard of defe ndant’s home. In 2001, H o f f ma n and defe ndant–whom Hoffma n char acte rized as his “b ro th e r ”

– b e g a n a n a uto mo b il e repa ir business, which Hoffma n and defe ndant owned until August 20 0 8

. H o f f ma n e xp lained that he would perf

orm the m ajority of t he mechanic wor k and def endant would handle t he business’s financ es. ¶ 68 Hoffma

n testified that defe ndant o wn ed two handguns: a .32-ca liber automatic and a smaller .22- or .25-ca liber gun. About two months befor e Dawn’ s death, defe nd an t told Hoffma n t h at his relationship with Dawn was deter iorating

. Shortly there afte r, defe ndant spoke with Hoffma

n and asked him to kill Dawn beca use he was afr aid that Dawn was g oing
to take the children from him. After Dawn moved out of defe ndant’s home in August 2008, Hoffma n agre ed to help defe ndant follow her to deter mine whether she was in another rela t ionship. During August 2008, Hoffma n stated that defe ndant asked him to kill Dawn “almost ever

y day .” Hoffma

n agree d afte r an exchang e in which defe ndant threatened to cut Dawn’ s head of

f. ¶ 69 On the morning of August 24
, 2 0 0 8
, d efendant told Hoffma n that he would block the drivewa y so that when Dawn arr iv ed, she would have to park at the far end of the drivewa y –closest to the street–whic h would minimi ze the sound of the gunshot in the home.

-11-Def endant g ave Hoffma

n his two handguns and 200 additional rounds of ammuni t ion. Def endant stated that he would keep the children in the house so that they would not witness the shooting. After shooting Dawn, Hoffma n planned to trave l on his b i k e t o a churc h parking lot, wher e defenda nt had parked his S -10 Chevy truck. Hof

fman would then drive the truck to L ittle Rock, Arka nsas, and stay

with a frie nd until def

endant contac ted him. In addition to other supplie s , d ef en dant provided Hoffma

n the title to the truck in the event Hoffma n neede d to sell it to cover his expenses. Hoffma n explained that defe ndant direc ted him to shootDawn w ith the .32-ca liber automatic ha ndgun. ¶ 70 Shortly afte r noon, Hoffma n saw Dawn drive up and h e m et h er at t h e en d o f the drivewa y . After Dawn e x ited her c ar, Hoffman asked her for a cig are tte. Dawn r eturne d to her car , sat down behind the steering whee l, and leane d over the cente r console. As she did, Hoffma n pointed the .32-ca liber handgun at Dawn’ s head and fired one shot. Hoffma n then rode his bicycle to the churc h parking lot, g ot into the S-10 Chevy truck, and drove to L ittle Rock. After unsucce ssfully attempting to locate his frien d i n L i t tle Rock, Hoffma n (1) disposed of the guns and extra ammunition in some brush, (2) sold the truck for $250, and (3) boug ht a bus ticket to L akela nd, Florida
, wher e his former fianc ée lived. (The guns wer e

never rec overe d.) L ak el an d police later arr ested Hoffma n and, upon questioning him, Hoffma n admitted that he shot Dawn. Hoffma n initially denied defe ndant’s involvement. He later ex plained that he w as af raid of de fenda

nt beca use def endant had phy sically assaulted him in the past. When Hoffma n was re turned to I llinois
, he spoke with his sister, who convince d him that he should a nswer police questions tr

uthfully

. There afte r, Hoffma n told police about de fenda

nt’s involvement. ¶ 71 Ho ffman acknow ledg ed that he could not rec all the answe rs he provided to numerous questions p o s ed b y L akela nd and Dec atur police. Those answe rs (1) contra dicted his afor ementioned testimony and (2) did not impl icate de fenda nt in Dawn’s de ath. ¶ 72 J immy Mardis testified that he, defe ndant, and Hoffma n had been friends for the past 20
y ear s. In 2007, Mardis witnessed numerous conver sations defe ndant had with Hoffma n over

sever al months reg arding defe ndant’s conce rn that Dawn would leave him and take Cry stal and Dalton with her. Mardis stated that defe ndant would routinely turn to Hoffma n and tell him that he neede d to “solve the problem” so defe ndant would not lose his kids. Specifica lly
, defe ndant would attempt to persua de Hof fman with the following

explanation:
“I f [defendant] did something, then [Hoffman] would be on the street

. An d if [Hoffman] did something[, defe ndant] could at least take car e of [Hoffman] while he was doing time.” ¶ 73 Approxim ately four wee ks prior to Dawn’ s death, defe n d an t as k ed M ar d is for his assistance in obtaining a “rive r gun,” which Mardis explained was a “gun that’s been turned in stolen and is not trac eable back to [i ts] orig inal owner .” Mardis declined defe ndant’s
repe ated reque sts, stating that he “didn’t want to g et involved in any ty pe of felony .” Mardis acknow ledg ed that in September 2008, he told police that defe ndant did not mention killing Dawn. He later chang ed his acc ount, explaining that he was afr aid to tell the truth ear lier beca use def endant ha d threatened his fa mily

. ¶ 74 The State also prese nted testimony from sever al other witnesses who t es t i fi ed t o the

-12-following : (1) Tulop owned a blue-gree n truck; (2 ) Dw ight (Da wn’s fathe r) never called Dawn’ s attorney ; (3) a few wee ks prior to Dawn’ s death, defe ndant attempted to sell sever al vintag e car s beca

use he “had some bills to pay ”; (4) defe ndant did not approa ch Dawn’ s car afte r the shooting or comfort Cry stal, who was hy sterica l an d d i s t ra u g ht; (5) the cause of Dawn’ s death wa s a gunshot w ound to he r head that enter ed slightly above he r left e ar; (6) police rec overe d a .32-ca liber casing from inside Dawn’ s vehicle; (7) a few day s afte r Dawn’ s death, defe ndant attempted to collect on a joint life insurance policy ; (8) defe ndant hired a person to burn the campe r Hoffma n resided in beca

use defe ndant “did not want [t he police] to tie him to any

thing” ; (9) a computer data rec overy expert confirme d that on August 19, 2008, defe ndant’s computer acc essed an employ ment Web site and sent a messag e–purpor

tedly from Dawn–c onfessing her illega l drug use and expressing ang er with her fellow employ ees; and (10) Hoffma n complied with whateve r defe ndant direc ted him to do.

¶ 75 2. Defendant’ s Evidenc e ¶ 76 Wendell McRoberts, J r., tes t i fi ed t h at he had known defe ndant for over 35 y ear s. On either August 10 or 17, 2008, he saw defe ndant, Dawn, Cry stal, and Dalton driving down the road. As they drove side by side, McRoberts spoke briefly with defe ndant and noted that “eve ry bod y s ee med to be in a rea l g ood mood.” McRoberts acknow ledg ed that he did not know that at that time, Dawn had alr eady moved out of def

endant’ s home. ¶ 77 Cody Hines testified t h at i n 2 0 0 9
, h e wa s incar cer ated with Hoffma n in the Mac on County jail. During that time, Hoffma n told Hines that he killed Dawn and defen d an t was not involved and defe ndant had no prior knowledg e of his intent. Hines admitted that afte r he wa s relea sed fr om jail, he visited defenda nt three times. ¶ 78 Eddie Harvey
, J r., t estified that in J anuar y 2009, he was incar cer at ed wi t h Hoffma n in the Mac on County

jail for appr ox imately one mont h. During that time, Hoffman inf ormed him that althoug h defe ndant was not involved with Dawn’ s mur d er , t he police wer e pressuringhim to implicate de fenda nt.

¶ 79 3. Defendant’ s Cross-Examination of Peterson and Colli ns ¶ 80 In its motion in limine
, the State did not seek to a dmit stateme nts D awn made to othe rs reg arding passports for defe ndant, Dalton, or Cry stal. At the hearing on the motion in limine
, the State questioned Petersen reg arding whether Dawn m ad e statements to her about passports, which Petersen acknow ledg ed Dawn had. At defe ndant’s jury t ri al, defe ndant

cross-e x amined Petersen on that subject, and she confi rmed that Dawn told her she found passports for defe ndant, Dalton, and Cry stal. In addition, although the State did not question C o l l ins about passports at the hearing on its motion in limine
, defe ndant asked Colli ns on

cross-e x amination whether Dawn had made any s tatements to her in that reg ard. Colli ns’
response was consistent with Pete rsen’ s testimony

. There afte r, the parties stipulated that if

ca lled to testify
, Special Ag ent Eric Bow ers of the Depa rtment of Homeland Se cu ri t y Immigration and Customs Enforc ement would confirm that an investigation reve aled that passports had not bee n issued to defe ndant, Dalton, or Cry stal.

-13-¶ 81 C. The Jury ’s Ver dict and the Tr ial Court’s Sentence

¶ 82 On t his evidenc e, the jury found (1) defe ndant guilty of first degree murder (720 I L CS 5/9-1(a) (1) (West 2008)) and (2) that the State had proved that during the commission of the offe nse, defe ndant, or one for whose conduct defe ndant was responsible, was arme d with a firea rm (730 I L CS 5/ 5 -8 -1 (a )(1) (d)( i) (West 2008) (text of section eff ective until J une 1, 2009)). Following a sentenc ing hearing, the trial co urt sentenc ed defe ndant to 75 y ear s in prison. ¶ 83 This appea l followed.

¶ 84 I I . ANALYSI S ¶ 85 Def

endant arg

ues that the trial court abused its discretion by partially g ranting the State’s motion in limine

. S p ec i fi cally
, defe ndant contends that (1) the court err ed by admitting

numerous hear say statements Dawn made primarily t o fr iends, family members, and

cowor kers under section 115-10.2a of the Code, and (2) the court’s decision to admit these hear say statements violated his six th amendment right to confr ontation. Prior to addre ssing defe ndant’s statutory and constitutional contentions, we first deter mine whether section 115- 1 0

. 2 a o f t h e Code–the statutory provision upon which the trial court relied–a pplies to the fac ts of this case.

¶ 86 A. The A pplicability

of Section 115-10.2a

of the Code ¶ 87 Section 115-10.2a of the C ode, entitl ed “Admissibi lity of prior statements i n domestic violence prosec utions when the witness is unavailable to testify ,” provides, in pertinent part, as follows: “(a ) In a domestic violence prosec ution, a statement, made by an individual identified in Section 201 of t he I llino i s Do m es t i c Vi olence Act of 1986 as a person protected by that Act, that is not specific ally cover ed by any other hear say exception but having equivalent c ircumstantial guara ntees of trustworthiness, is not ex cluded by the hea rsay rule if the decla

rant is identified as unavailable as define d in subsection (c) and if the court de termines that: (1) the statement is offe red a s evidenc e of a materia l fac t; and (2) the statement is more probative on the point f or which it is offe red tha

n any other e vidence which the pr oponent ca n procur e through rea sonable e ffor ts; and (3) the g ener al purposes o f this Section and the interests of justice will best be

serve d by admission of t he st atement into evidenc e.” 725 I L CS 5/115 -10.2a (West 2010). ¶ 88 By its own terms, s ec t i o n 1 15.10.2a applies to a “domestic violence prosec ution” in which the offe red hear say statements wer e made by a person protec ted by section 201 of the I llinois Domestic Violence Act of 1986 (Ac t) (750 I L CS 60/201 (West 2010)). Section 201 of the Act provides that “any person abused by a family or household member” is a protec ted
person. 750 I L CS 60/201(a)( i) (West 2010). Section 103(6) of the Act define s “fa mily or household members” as “pe rsons who shar e or f ormerly share d a common dwelling ” (750

-14-I L CS 60/103(6) (West 2010)). Fu r th e r , s ection 103(1) of the Act define s “abuse ” as “phy sical abuse, hara ssment, intimi dation of a depende nt, interfe renc e with persona l liberty or willful deprivation” (750 I L CS 60/ 103(1) ( West 2010)). ¶ 89 In this case , the evidenc e prese nted at the hearing on t h e S t at e’ s m o t ion in limine
, dem o nstrating the phy sical abuse, hara ssment, and intimi dation defe ndant inflicted upon Da wn, clea

rly showed that Dawn and defe ndant wer e “fa mily or household member s ” as define d by the Act, and more important, that Dawn was a “prote cted person” under section 201 of t h e Act. Howeve r, no statutory definition exis ts for the term “domestic violence
prosec ution.” ¶ 90 Despite this omission, we f in d p e r s u a s iv e th e f

ollowing excerpt from Professor Graha m’s H a n d book of I llinois Evidence
, which astutely predic ted that the issue we now addre ss would arise: “[W ]hat does ‘in a domestic violence prosec ution’ actua lly mean? There is no crime denominated ‘domestic violence ,’ solely a crime denominated ‘domestic battery ,’ 720 I L CS 5/12-3.2. I f the fore g oing wife decla rant was subsequently murdere d alleg edly by her husband, the intent of the statute is f or it to potentially

apply , y et the prose cution is for murder and not domestic violence. What was probably intended was for the statement t o en compass any prosec ution involving violence under circ umstances making th e alleg ed victim a person define d as protec ted by section 201(a) of the *** Act *** and the alleg ed perpe trator a person who is a family or household member.” Michae l H. Gra ham, Gra ham’s Ha ndbook of I llinois Evidence § 804.8, at 996 (10th ed. 2010)

. ¶ 91 I n P eo

p l e v. C h a pman , 2012 I L 111896, ¶ 21, 965 N.E.2d 1119, the supreme cou rt

rec ently considere d whether section 115-20 of the Code permitted the trial court to a dmit a defe ndant’s prior conviction for the domestic battery of his g irlfriend at his trial for the first degree murder of that same person. The pertinent portions of section 115-20 provide, as follows: “(a ) Evidenc e of a prior convic tion of a def endant f or domestic batter

y , ag g ravated battery committed ag ainst a family or household member as define d in Section 112A-3, stalking, ag g ravated stalking, or violation of an order of protec tion is admissible in a later criminal prosec ution for any of these ty pes of offe nses wh en the victim is the same person who was the victim o f the previous offe nse that resulted in conviction of the defe ndant. (b) I f the d ef

endant is acc used of an offe nse set forth in subsection (a) or the defe ndant is tried or re tried for any of the off enses se t forth in subsection (a ), evide nce of the de fenda

nt’s conviction for a

nother off ense or offe nses set forth in subse ction (a)
may be admissible (if that evidenc e is otherwise admissible under the rules of evidenc e) and may be considere d for its be aring on any matter to which it is rele vant if the victim is the same person who was the victim of the previous offe nse that resulted in conviction of the de fenda

nt.” 725 I L CS 5/ 115-20 (West 2006). ¶ 92 In disposing in Chapman of one of the defe ndant’s arguments attacking the applica bility of the statute, the supr eme c ourt noted, as f ollows:
“D ef endant points out that ‘[t] here is no crime desig nated “ag g rava ted battery

-15-involving a family or household member ” ’ in the Code. But this fa ct actua lly supports the State’s position that murder of a household member can, in the appropr iate case , fit under the statutory languag e ‘any of these ty pes o f o ff

en s es’ beca

use, if ag g ravated battery involving a household or family member is not an actua l offe nse, then it follows that the leg islature must have intended that the trial court have leewa y to look to the fac ts and circ umstances surrounding the incident to d e ter mi n e whether the prosec ution at issue is for the ty

pe of offe nse contemplated by the statute.” Chapman
, 2012 I L 111896, ¶ 30, 965 N.E.2d 1119.
W e agree with the rationale espoused by Professor Gra ham reg arding the intent o f t h e Gene ral Assembly in declining to define “domestic violence prosec ution,” and we note that his rationale is in acc ord with Chapman

. Her e, defe ndant, a “fa mily or household member”

as define d by the Act, was prosec uted for the first degree murder of Dawn, a protec ted person under the Act, which we conclude is a “domestic violence prosec ution,” as contemplated by section 115-10.2a

of the Code. ¶ 93 Acc ording ly
, we hold that, provided all other provisions of section 115-10.2a of the Code

are satisfied, “domestic violence prosec ution” encompa sses prosec utions in which a family member inflicts abuse upon a person protec ted b y s ection 201 of the Act. Clearly
, a prosec ution for first degree murder, as in the prese nt case , meets that criterion. We now turn to defe ndant’s statutory

and constitutional claims.

¶ 94 B. D efe ndant’s Statutory Claim ¶ 95 Def

endant contends that the trial court err ed by admitting numerous hear say statements Dawn ma de primar ily

to friends, fa

mily members, and cowor

kers unde r sec tion 115-10.2a of the Code. Specifica lly
, defe ndant asser ts that Dawn’ s hear say statements to these people “lac ked the r equisite indicia of r eliability , materia lity , and nec essity .” We disagree

.

¶ 96 1. The Standard of Review ¶ 97 “As a g ener al rule, a trial court’s ruling on a motion in limine reg arding the introduction

or exclusion of evidenc e is revie wed under an abuse of discretion standard.” People v. Starks
, 2012 I L App (2d) 110273, ¶ 20, 966 N.E.2d 347. A trial court abuses its discretion only when its d e c ision is arbitra

ry , fanc iful, unrea sonable, or no rea sonable person would adopt the view taken by the court. Id

. Acc ording ly
, absent an abuse of discretion, this court will not disturb a trial c ourt’s rulingon a motion in limine

. Id

.

¶ 98 2. An Analytical Approach To Dete rmine

“Ci rcumstantial Guarantees of Trustw orthiness” ¶ 99 In the trial court’s written order
, the court mentioned that it had considere d 11 fac tors that

we set forth above. The trial court appar ently derive d those fac tors from People v. Smith
, 333 I ll. App. 3d 622, 635, 776 N.E.2d 781, 792 (2002), a decision of the First District Appellate Court to which the trial court re fer red in its written orde r. Smith descr ibed those factors as useful when analy

zing the trustworthiness of proff ere d hear say under section 115-10.4 of the

-16-Code (725 I L CS 5/115-10.4 (West 2000)). The Smith court also cited a well-known treatise

th a t c o ntained additional fac tors useful in analy zing such statements for their tr u s tw o r th in e s s

. See Thomas A. Ma

uet & Warren D . Wolfson, Trial Evidence 236 (2d ed. 2001)

. ¶ 100 T h e i s s u e i n Smith was whether section 115-10.4 of the Code–as then writ t en

–wa s unconstitutional beca

use that statute violated the confr ontation clause (U.S. Const., amends. VI
, XIV; see also I ll. C onst. 1970, art. I
, § 8). At that time, United States Supreme Court doctrine held that hear say statements can be admitted at t ri al without violating the confr ontation clause if those statements either (1) fall under a firmly rooted exception to the h e arsa y rule or (2) possess “par

ticularized guara

ntees of trustworthiness.” (Interna l quotat io n marks omitted.) Idaho v. W right , 497 U.S. 805, 817 (1990). ¶ 101 Howeve r, in Crawf ord v. W a s h i n g t o n , 5 4 1 U. S

. 36, 53 (2004), the Supreme Court abrog ated its prior case law reg arding the confr ontation clause and adopted the view that (at

m o s t ) the confr ontation clause bars only “testimonial hear say .” In so concluding
, t h e Supreme C o u rt rejected the idea that hear say could be admissible under the confr ontation clause mere ly beca

use it possessed “par

ticularized guara

ntees of trustworthiness.” (Interna l quotation marks omitted.) Crawf ord
, 541 U.S. a

t 60. Acc ording ly
, Smith and similar ca ses

no longe r provide a valid basis for resolving constitutional issues under t h e co nfrontation clause

. ¶ 102 Nonethele ss, the fac tors set forth in Smith rema in valid a naly tical tools whe n resolving statutory issues, like those prese nt in this case

. One of those statutory issues is whether the proff ere d hear say statements are trustworthy

. This issue arises beca use section 115-10.2a of the Code require s a court, when deciding whether a hear say statement would be admissible under that section, to resolv e (among other things) whether the statement possesses “equiva lent circ umstantial gua rante es of trustworthiness.” 725 I L CS 5/115-10.2a( a) (West 2010). When a trial court deter mines this issue, it may use prior case law reg arding when a hear say statement possesses “cir cumstantial guara ntees of trustworthiness” even though that prior case law, as in Smith
, (1) was conce rned with a constitutional issue, not a statutory one, and (2) is no longe r valid for resolvingthose constitutional issues. ¶ 103 Another example of a case like Smith is People v. Thomas
, 313 I ll. App. 3 d 9 9 8
, 730 N.E.2d 618 (2 0 00), in which this court addre ssed whether section 115-10.2 of the Code passed constitutional muster under the confr ontation clause

. In Thomas
, this court conclude d that it did and that the trial court proper ly ad m i t t ed t he hear say statements in question. In

rea ching that c onclusion, this court quoted from Trial Evidence
, which listed multipl e fac tors that could help trial courts as they evaluate the trustworthiness of proff ere d h ea rsay testim o n y

. S ee Thomas
, 313 I ll. App. 3d at 1006, 730 N.E.2d at 625 (quoting Thomas A. M auet & W arr en D. Wolfson, Trial Evidence 229-30 (1st ed. 1997)). Four y ear s l at er , t h e United States Supreme Court, citing Thomas among many others, expli citly abrog ated Thomas on constitutional grounds. See Crawf ord , 541 U.S. at 63- 64. Howeve r, that action by the Supreme Court does not mean that the fac tors sug g ested in Thomas may not be used when considering the trustworthiness of prof fe re d statements–spec ifically
, whether those
statements contain circ umstantial guara ntees of trustworthiness–for statutory purposes. In fac t, we sug g est that trial courts continue to use those fac tors, as well as the others we ear lier mentioned that the trial c ourt used in this case.

-17-¶ 104 We ag ain find support for our position in Professor Gra ham’s treatise wher e it discusses the admissibili ty of hear say statements under section 115-10 of the Code (7 2 5 IL CS 5/115-10 (West 2010)). See Michae l H. Gra ham, Gra ham’s Handbook of I llinois Evidence § 803.25,
at 931 (10th ed. 2010). Section 115-10(b) (1) provides that such a s t at em ent may be admissible if the trial court, among other finding s, “finds in a hearing conducte d outside the
prese nce o f t h e j u ry that the time, content, and circ umstances of the statement provide sufficie nt safe guards of reliability .” 725 I L CS 5/115-10(b)( 1) (West 2010). These provisions of section 115-10(b) (1) are essentially the same as asking the court to find, as it must under section 115-10.2a, that the proff ere d hear say statements possess “cir cumstantial guara ntees of trustworthiness.” 725 I L CS 5/115-10.2a(a ) (West 2010). In his treatise, Professor Gra ham cites Thomas and sets forth–in i ts entirety –the l en gt h y list of factors that this court quoted from Trial Evidence

. Michae l H. Gra ham, Gra ham’s Handbook of I llinois Evidence § 803.25, at 941-42 (10th e d. 2010).

¶ 105 3. Defendant’ s Abuse-of-D iscretion Claim ¶ 106 The g rava

men of defe ndant’s claim that Dawn’ s various hear say statements “lac ked the requisite indi cia of relia bility
, materia lity
, and necessity” is that all the s tatements t he trial
court admitted wer e unreliable

. In this reg ard, defe ndant claims t h at (1) Dawn’ s hear say statements wer e not spontaneous, (2) Dawn had a m o t ive to portray defe ndant as an unfit
pare nt, and (3) Dawn’ s claim was false that she saw passports that wer e issued to defe ndant, Dalton, and Cry stal. We are unpe rsuade d. ¶ 107 T h e evidenc e prese nted at the hearing on the State’s motion in limine showed that t h e majority of Dawn’s st at ements wer e made within a reasonably short time befor e the event at issue, and, overa ll, wer e within six months of her death. In addition, we reje ct defe ndant’s motive arg

ument, g iven that none of Dawn’ s statements perta ined to defe ndant’s fitness as

a pare nt, but instead primarily conce rned his expressed intent to kill her if she did not comply with his demands to return to his home. ¶ 108 In this reg ard, had Dawn not been shot and instead had a custody fight arisen betwee n her and defe ndant, we have trouble u nderstanding how Dawn’ s statements (which are the subject of this appea l) would have helped Dawn or how they would have even been admissible. See People v. Johnson
, 2012 I L App (1st) 091730, ¶ 58 (“The g ener al rule is that prior consistent
statements of a witness are inadmissible for the purpose of corr oborating the trial testimony of the witness, beca

use they serve to unfairly enhanc e the cr edibility of the witness.”). Assuming that Dawn testified at the custody hearing about defe ndant’s abusive, threa tening behavior
, her hear say statements to third parties ab o u t t hat same subject matter would constitute nothing more than inadmissible, prior consistent statements. See People v. Brown
, 200 I ll. App. 3d 566, 579, 558 N.E.2d 309, 317 (1990) (“[T]he rule [on] inadmissibil ity of prior consistent stateme nts also applies to a third par ty who see ks to testify

conce rningthe witness’ prior c onsistent statement.”). ¶ 109 Wit h reg ard to Dawn’ s claim conce rnin g t h e p as s p o rt s , t h e t ri al co urt hear d and considere d that testimony

. Even if the court believed that the evidenc e showed that Dawn lied about the passports, the court’s decision to admit the majority of the hear say statements

-18-at issue can hardly be deeme d so arbitra ry , fanc iful, or unrea sonable as to war rant reve rsal. ¶ 110 In this case , as previously explained, the State sought to introduce numerous statements Dawn ma de primar ily

to friends, fa

mily members, and cowor kers in the months prec eding her death to show (1) why Dawn fea red defe ndant and (2) defe ndant’s motive for k i l l ing Dawn. The State’s theory was that defe ndant had Dawn killed beca use she ref

used to return to the home she had share d with him for the pa st 17 year s and, more important, she soug ht to have he r childre n–Dalton and Cry stal–move into her apa rtment. ¶ 111 In evalua

ting the reliability
, m at er i al i t y , an d nece ssity of these statements, the trial court–in its written order

–noted that it had considere d the entirety of the evidenc e prese nted with in the framewor

k of 11 applicable fac tors. The court then found that the s tatements at issue wer e reliable
, materia l, and nece ssary

. The court there afte r g rante d the admission of a majority of the statements the State soug ht to introduce, con cl u d i n g that the interests of justice would be best serve d by their admission. De fe ndant’s arguments would have this
court rew eig h that evidenc e and reve rse the trial court’s deter mination. Howeve r, when we consider the trial court’s ruling in the light of our defe rential standard of revie w, we conclude the trial cour

t was we ll within i ts discretion to rule as it did. ¶ 112 In so concluding
, we commend (1) the State for the detailed manner in which it pr esente d the specific statements it soug ht to introduce at trial, and (2) the trial court for its thoughtf ul and compr ehensive written orde r, which w e found ve ry helpful.

¶ 113 C. Defe ndant’s Constituti onal Claim ¶ 114 Def

endant next contends that the trial court’s decision to ad m i t n u m er o u s h earsay

s t at em ents Dawn made primarily to friends, family members, and cowor kers violated h i s six th amendment rig ht to confr ontation. Be cause we conclude that the confr ontation clause is not implicated unde r the fa cts of this case , we disagree

.

¶ 115 1. Testimonial Hearsay Under Crawford and Its Progeny ¶ 116 At the trial in C r a w f o r d
, t h e S t at e p l ay ed fo r t h e j ury a rec ording of the police questioning the defe ndant’s wife, Sylvia, that was detrimental to the defe ndant’s claim that he acted i n s el f-defense when he stabbed the victim. Sylvia did not testify

. Crawf ord
, 541 U.S. at 40. Thus, the issue befor e the Supreme Court was whether the admission of the

rec ording violated the d ef en dant’s six th amendment rig ht to confr ontation. (The six th amendment rig ht to confr ontation provides, in pertinent p ar t, that “[i] n all criminal
prosec utions, the acc used shall enjoy the righ t * * * t o be confr onted with the witnesses
ag ainst him.” U.S. Const., amend. VI.) In concluding that it did, the S upreme Court noted that by its own terms, the focus of the confr ont at i o n cl au s e is on “ ‘witnesses’ ag ainst the

acc used–in other words, those who ‘bea r testimony .’ ” Crawf

ord
, 541 U.S. at 51. The Court then define d the ty

pe of testimony the confr ontation clause was desig ned to addre s s , as follows:
“ ‘Testim o n y ’ * * * i s ty

pically ‘[a] solemn decla ration or aff

irmation made for the
purpose of establishing or proving some fac t.’ [C itation.] An acc user who makes a

-19-formal statement to g overnme nt office rs bear s testimony in a sense t h at a person who makes a casua l remark to an acqua intance does not. The constitutional text , like the history underlying the comm o n-law rig ht of confr ontation, thus ref lects an espec ially
acute conce rn with a spec ific ty pe of out-of

-cour t statement.” Id

. ¶ 117 The Supreme Court l ab el ed s u ch s o l em n d ec l ar at i o n s as t est imonial statements ( Crawf ord
, 541 U.S. at 51) but declined to provide a compre hensive definition of that term ( Cra w f o r d
, 5 4 1 U.S. at 68). In this reg ard, the Supreme Court held that, at a minimum
, “testimonial” encompa sses “prior testimony at a preliminary hearing, befor e a g rand jury
, or at a former t rial; and to police interrog ations,” which it conclude d wer e the “moder n prac tices with closest kinship to the abuses at which the Confrontation Clause was direc ted.” Id

. Thus
, C

r a w f o rd holds that “testimonial hear say” (a term of art that previously had not exis ted) is a “spec ific ty pe of out-of-c ourt s t at ement” ( Crawf ord
, 541 U.S. at 51) that implicates the confr ontat i o n clause beca use it is “hea

rsay [that] consists of ex parte testimony ” ( Crawf

ord , 541 U.S. at 60). ¶ 118 The Crawf

ord Court then noted the followingabout testimonial hearsa y : “[T] he principal evil at which the [c] onfrontation [c] lause was direc ted was the civil-law mode of criminal proce dure, and particula rly its use of ex parte examinations as evidenc e ag ainst the ac cused. ***

*** This focus *** sug g ests that not all hear s a y im p li c a te s the [s] ix th [a] mendment’s core

conce rns. An off- hand, overhe ard rema rk might be unreliable evidenc e and thus a g ood candidate for exclusion under hearsa y rules, but i t bear s litt le re semblance to the civil

law abuses the [c] onfrontation [c] lause targ eted. On the other hand, ex parte examinations might sometimes be admissible under mod ern hear say rules, but the Fr amer s cer

tainly would not have c ondoned them.” Crawf ord , 541 U.S. at 50-51. ¶ 119 In Davis v. W ashington
, 547 U.S. 813, 82 6 (2 0 0 6 ), t h e S up re me Court considere d whether statements the victim, Michelle, made in response to a 9-1-1 operator’s questions–in other words, in response to a g overnme nt officia l’s questions–during an ong oing emer g ency

wer e testimonial, thus implicating the confr ontation clause

. The Court, noting its prior
pronounce ment in Crawf

ord that define d testimony as “[a] solemn decla ration or aff

irmation made for the purpose of establishing or proving some fac t” (interna l qu o t at i on marks omitted) ( Crawf

ord
, 541 U.S. at 51), differ entiated the statements made by Sylvia in Crawf ord from those made by

Michelle, a s follows: (1) Sylvia was de scribingpast events, while Michelle was d es cr i b ing ong oing events; (2) an objective listener would rea liz e Michelle, unli ke S ylvia, was facing an ongoing emer g ency ; (3) the nature of t he questions

reve aled the operator was attempting t o g arne r information from Michelle to resolve the
prese nt emer g ency instead of lear ning what had occur

red in the past, as with Sylvia; and (4) Michelle was responding in a fra ntic tone while Sylvia rema ined calm wh en responding. Davis , 547 U.S. at 827. ¶ 120 In concluding that the circ umstances of Michelle’s “interr og ation” objectively indicated that its primary purpose was to enable police to addre s s an ong oing emer g ency , the Court noted that Michelle was “not acting as a witness ; she was not testifying

. ” (E m p h ases in

-20-orig inal.) Davis , 547 U.S. at 828.

¶ 121 2. The Requireme nt of Governme nt Involve ment for
a Statement To Constit ute Testimonial Hearsay ¶ 122 Def

endant acknow ledges t h e S up re me Court’s holding in Crawf ord, but nonetheless claims that “Da

wn was intent on bearing wit ness” ag ainst him. In support of his claim, defe ndant pos its that (1) Da wn and he wer e involved in a c ustody dispute, (2) he had filed

a petition for a deter

mination of pare ntal rig hts, and (3) Dawn intended to file a petition for

an order of protec tion. Thus, defe ndant asser ts that it is “cle ar [t hat] Dawn intended that the State would make use of her statements at trial in the e vent of he r death.” ¶ 123 The primary p ro b l em wi th defe ndant’s argument is that it overlooks the fac t that none of Dawn’ s statements wer e made to g overnme nt officia ls. Thus, as leg al s ch o l ar s have explained, those statements do not constitute testimonial hearsay . In his treatise, Profe ssor Gra ham add resses the “testimonial” versus “nontestimonial” distinction set forth in Crawf ord and Davis, and wr ites as follows:
“Ve ry importantly
, notice that even though Davis like Crawf ord befor e it expli citly declined to prese nt a compre hensive defi n i tion of ‘testimonial,’ Davis never theless clea rly supports the p roposi tion that all other statements [(emphasis in orig inal)], i.e., statements where the primary purpose for which the s tatement i s employ ed at the t ime made does not r elate to pr osecuting a past criminal event, e ven whe n made pursuant to

a g overnme nt of

ficial, are not ‘ testimonial.’ *** All stateme nts made to som eone other
t h a n a governm ent official are always ‘nontestimonial’ [(emphasis added)] ; unavailability of the decla rant for cross-e x amination does not prec lude admissibili ty ag ainst the criminal defe ndant.” Michae l H. Gra ham, Gra ham’s Handb o o k of I llinois Evidence § 807.1, at 1013 (10th ed. 2010)

. Indeed, Professor Gra

ham was so adama

nt a bout this subject that he conclude d his le ng thy analy sis reg arding testimonial hear say wit h t he following sentenc e–the only such one we know of in Professor Graha m’s 1,273-pag e tre atise–set for th all in emphases: “ The sooner Illinois law conforms to the universally held vie w t hat statements to nongovernm ental officials are neve r testimonial[,] the better .” (Emphasis in orig inal.) Michae l H. Gra ham, Gra ham’s Ha ndbook of I llinois Evidence § 807.3, at 1032 (10th ed. 2010)

. ¶ 124 In another of Profess o r Gr ah am ’s t re at ises, the seven- volume Michae l H. Gra ham, Handbook of Fe dera l Evidence (7th ed. 2012), Professor Gra ham addre sses the same issue and writes as follows: “

Davis does clarify that the confr ontation clause focuse s solely upon conduct by g overnme nt officia ls.” Michae l H. Gr ah am, Handbook of Fe dera l Evidence § 802:2.1, at 735 (7th ed. 2012). ¶ 125 We find further support for the need for g overnme nt involvement befor e a statement ca n be dee med testimonial hearsa y in the following : “In both Crawf

ord and Davis
, the Court made clea r that the Co n fr o n t ati on Clause is aimed at a particula

r prac t ice: the trial use of formalized, ex parte statements to g overnme nt officials investig atingan off ense.

-21-T h e Crawf ord Court explains at leng th that it is governm ental involvem ent in that
statement which bear s the ‘closest ki n s h i p to the abuses at which the Confrontation Clause was di rected.’ Without g overnme ntal involvement, the conce rns animating the Confrontation Clause are larg ely absent.” (Emphasis in orig inal.) Daniel B. Shanes, The Crawf ord Confrontat ion Clause: Gove rnmental Involv eme nt is Ke y t o Testimonial Hearsay , 96 I ll. B.J. 574, 576 (2008). ¶ 126 In Giles v. Calif ornia
, 554 U.S. 353 (2008), the United States Supreme Court disc ussed the nece ssity of g overnme nt involvement befor e a statement can co n stitut e testimonial hear say

. In Giles
, the trial court allowed prosec utors to introduce statements that the murder victim had made to a police offic er r espondingto a domestic-violenc e ca ll. The California Supreme Court conclude d that this e vidence did not violate the confr ontation clause unde r the doctrine of forf

eiture by wrong doing. That is, it conclude d that the defe n d an t had forf eited his r ight to c onfront the victim’s testimony beca use the defe ndant had committed the mur d er fo r which he was on trial–an intentional criminal act that made the victim unavailable to t es t i fy

. Giles
, 554 U.S. at 357. In the course of considering whether the Ca lifornia courts corr ectly applied the forf eiture- by -wrong doing rule, the Su p r e me Co u

r t h a d

occa sion to addre ss Crawf ord and Davis and discuss once ag ain what constitutes testimonial hear say : “[O]nl y testimonial statements are excluded by the C o n frontation Clause. Statements to friends and neighbors about abuse and i n timidation and statements to phy sicians in the course of rec eiving treatment would be excluded, if at all, only by hear say rules ***.” ( Emphasis in origina l.) Giles , 554 U.S. at 376. ¶ 127 J udg e Shanes’ s article, The Crawf ord Confront ation Cl ause , conclude s as follows:
“F or t he mom ent, t he f

u l l s co p e of what testi monial hear say encompa sses rema ins

uncer tain. What is clea

r, howeve r, is that Crawf

ord teac hes g overnme nt involvement is ty pically a key component of testimonial hear say

. ‘An acc user who makes a formal
statement to g overnme nt office rs bea rs testimony in a sense that a person who makes a

casua l remar

k to an ac quaintance does not.’
In Giles
, the S upreme Court echoe s that teac hing. A person simply does not testify
to g randpa

rents, friends, doctors, or others. Testimony
, as that term is understood by Crawf ord
, require s a formality and purpose attendant to sworn or courtroom proce eding s or statements made to police investig atinga crime. Absent g overnme n t al i nvolvement in the production of an out-of-c ourt statement, courts should pause long and hard befor e deeming it testimonial hear say .” (Emphasis in orig inal.) Shanes, supra , at 578. ¶ 128 In quoting Professor Gra ham at leng th, we note the status that Professor Gra ham and his Handbook of I llinois Evidence have ear ned in the eyes of the I llinois judiciary in g ener al and the Supreme Court of I llinois in particula r. For instance, over the last 20 year s, our supreme court ha s cited var ious editions of Graha m’s Handbook of

I llinois Evidence in 63 separate

case s, and we are not awar e of a ny instance in whic h the cour t rejec ted his analy sis. ¶ 129 Fur

ther, in N ovember 2008, the I llinois Supreme Court c reated a spec ial committee on I llinois evidenc e and char g ed it with codify ing the law of evidenc e in this state. As Professor Gra ham ex plains in the prefac e to the 10th edi t i o n of hi s treatise, he was appointed by the

-22-court as advisor to the new committee. In that role, he “pre pare d
, p u rs u an t to the Chair’s

direc tion, sug g ested d ra ft ru l es, sometimes in the alternative, t o be included in the I llinois Rules of Evidence .” (Michae l H. Gra ham, Gra ham’s Handbook of I llinois Evidence
, at x iii (10th ed. 2010).) Ultimately
, the co m m i ttee finished its work and prese nted the supreme court with its final proposed rules. In September 2010, the I llinois Supreme Court adopted the proposal a s the new I llinois Rules of Evidence

. ¶ 130 In additi o n , Professor Graham is also a renowned evidence expert nationwide bec ause of his a uthorship of the Handbook of Fe dera l Evidence (7th ed. 2012), which exhaustively

cover s (in seven separ ate volumes) the an al y sis and application of the Fe dera l Rules of Evidence

. Given P rofe ssor Gra ham’s natio n al re n o wn, we are fortunate in I llinois to have him continue to author the Ha ndbook of I llinois Evidence

. ¶ 131 Ac co rd i n gl y , when we stated that we g ive g reat weight to the unus u al l y s tro n g

rec ommendation of Professor Gra ham reg arding the need for g overnme nt i n v o l v em ent in order for a statement to be deeme d testimonial hear say , we did so advisedly

. To para phrase

a famous television commerc ial, when Professor Gra ham speaks about I llinois evidenc e law, the courts listen. W e co nclude that this court should follow Professor Gra ham’s counsel
reg arding testimonial hear say , and we believe that a majority of the Supreme Court of I llinois would be similarly

so persua ded whe n it nex t has occ asion to consider this issue.

¶ 132 3. The Analysis of Other Legal Scholars ¶ 133 W e h av e al s o consi dere d other leg al scholars who support that same conclusion, as follows: “[G]overnment involvement in the cre ation of the out-of-c ourt statement is a prer equisite
to deter mining that the statement is testimonial. This would cate go ri cally eliminate statements made to individuals who ar e not g overnme nt officials or a g ents involved in the prosecution or i nvestig ation of t he criminal case

. Thus, statements m ade to private parties not acting on behalf of g overnme nt officia ls invo l v ed i n t h e prosec ution or investigation of criminal case s wo u l d n ev er be testimonial within the meaning of Crawf ord.” Carol A. Chas e, Is Crawf ord a “Get Out of Jail Free” Card for Batterers and Abusers? An Argument for a Narrow Defini t i o n o f “ T estimonial”
, 84 Or. L

. Rev. 1093, 1120 (2005). ¶ 134 An ar

ticle in the Geor g etown L aw Journal takes a simil ar position:
“When there is no clea

r gover nment involvement, either in the active of elicitation

or passive rec eption of acc usatory hear say , the [c]onfronation [c]lause and its rationale

as set out by J ustice Scalia are not implicated. Under those circ umstances, *** the Court should expl i ci t l y est ablish a bright-line rule ag ainst finding such hearsay testimonial.” Ariana J

. Torchin, Note, A Multidimensional Framework for the Analysis of Testimonial Hearsay U

nder Crawf

ord v. W ashington , 94 Geo. L .J . 581, 610 (2006). The Ge org etown article further notes that statements casuallymade to fr iends, family , and

a c q u a in ta n c e s h a v e c o n s istently been found nontestimonial, even if incriminating

. Th e a r ti c le points out that such statements are ty pically made to convey information to acc omplish other
purposes, or for no rea l purpose other than to share the burden of an emotional event. Id. We

-23-deem this last observation particularly appropr iate to the spec ific fa cts of this case

. ¶ 135 Ba sed upon all of the for ego i n g, we conclude that absent g overnme nt involvement in eliciting or rec eiving an acc usatory hear say statement, t h at s tatement does not constitute testimonial hearsa

y

.

¶ 136 4. Case Law From Other Jurisdictions ¶ 137 Since t he S upreme Court first expl ained the c oncept of testimonial hear say eight y ear s ag o, courts nationwide hav e strug g led to understand Crawf ord and its prog eny and to proper ly apply them. Case law from these other juris d i ct i o n s has helped inform us in this

case

. ¶ 138 S o m e courts have cate g orica lly held that statements betwee n private part i es ar e n o t testimonial. See State v. Calhoun
, 6 5 7 S.E.2d 424, 427 (N.C. Ct. App. 2008) (victim’s statement in murder

case did not c onstitut e testimonial he arsa y beca use it wa s not ma de to

a police office r); Garcia v. State
, 246 S.W .3d 121, 133 (Tex. Ct

. App. 2007) (victim’s
statements to third parties that she was afr aid of the defe ndant did not constitute testimonial hear say beca

use they wer e not “g iven in response to police interrog ations,” but instead wer e made to the victim’s cowor kers, friends, and her divorce attorney ); Jense n v. Pliler
, 439 F.3d 1086, 1089 (9th Cir. 2006) ( at t o rn ey permitted t o testify to statements m ade to him by his client (wh o was incar cer ated) that incriminated the defe ndant, even though the client was subsequently killed; Ninth Circuit held that client’s statements did not constitute testimonial hear say beca use they “we re not made to a gover nment office r wit h an eye towar d trial, the primary abuse at which the [c] onfrontation [c] lause was d i re ct ed”) ; Hughes v. State
, 815 N.W.2d 602, 608 (Minn. 2012) (Minnesota Supreme Court deems Jense n and Garcia “we llrea soned and pe rsuasive” and conc ludes that in this murder tr ial the victim’s statements to her divorce lawyer about various p ro b l em s with the defe ndant try ing to control and intimi date her did not constitute testimonial hear s ay beca use they wer e not made to law

e nforc ement personne l); State v. Ladner
, 644 S.E.2d 684, 689 (S.C. 2007) (statement of c h il d

sex victim to car eg iver about the defe ndant’s conduct “cle arly nontestimonial” beca use the victim’s statement was “much more akin to a rema rk to an acqua intance rathe r than a formal
statement t o go v er n ment office rs”; court added that simply beca use pare nts turn over information about crimes to law enfor ceme nt a uth o rit ie s d o e s not transfor m their interac tions with their children into police investigations); People v. V i g i l
, 127 P.3d 916, 928 (Colo. 2006) ( en banc ) (statements made by victim in a child sex offe nse case to his fathe r and fathe r’s friend did not constitute testimonial hear say beca use they wer e not made during police interrogation nor wer e g overnme nt officia ls involved when the victim made the statements); Hobgood v. State
, 2 0 04-KA- 01917-SCT (¶¶ 11-14) (Miss. 2006) (child sex abuse victim’s statements to mother, g randmot h er , baby sitter, and doctors reg arding the defe ndant’s sexual abuse did not constitute testimonial hear say beca use they wer e not g iven
to police or individuals working with police); People v

. Cage
, 155 P.3d 205, 219-20 (Cal. 2007) (because the focus of bot h Crawf ord and Davis is on formal and solemn acc usatory statements made to law enforce ment agents in the context of criminal i nvestigations or inqui r i es , statement made solely for purposes of medical treatment to a phy sician not

-24-aff iliated with police or prosec utors does not c onstitut e testimonial he arsa y ; the “mer e fac t that doctors must repor

t abuse they see, suspect, or know of in the course of prac tice does not transfor m them into investigative agents of law enfor ceme nt” (empha ses in orig inal)); State

v. Brocca
, 979 So. 2d 430, 434 (F la. Dist. Ct. App. 2008) (statements sexual assault victim made to his mother wer e nontestimonial beca use they “we re not made to a g overnme nt ag ent

or under police interrog ation”); United States v. B o yd
, 640 F.3d 657, 665 (6th Cir. 2011) (statements made to police in the course of officia l investigation are testimonial; statements made to fr iends and acquaintanc es are nontesti monial); State v. Mill er , 896 A.2d 844, 859 (Conn. App. Ct. 2006) (“[t] he courts of this land, both fede ral and state, are in agree ment that
statements made to friends in unofficia l settin gs d o not constitute testimonial hear say”); Laine v. State
, 786 N.W.2d 635, 639 (Minn. 2010 ) (trial court proper ly admitted victim’s out-of-c ourt statements to show the defe ndant’s prior acts of domestic abuse in murder trial;
statements wer e nontestimonial be cause they wer e made to f riends and cowor

kers, not law enfor ceme nt office rs). ¶ 139 Ad m i t t edly
, many more decisions dealing with t h e re qu i re m en t o f go v er n m en t involvement exis t beyond those discussed above, but, for the most part, those decis i o n s

mere ly indicate uncer

tainty about the issue. A g ood example is State v. Franklin
, 308 S.W .3d 799, 816 (Tenn. 2010) , in which the Te nnessee Supreme Court wrote the following : “B ased on the l anguag e from Crawf ord and Davis
, some courts h av e ca teg orica lly held that statements betwee n private parties–or
, at least, specifi c ty pes of such
statements–ar e not testimonial. Today
, howeve r, we do not hold that statements betwee n private parties unconnec ted to law enfor ceme nt, such as the exchang e betwee n the victim and the [wit ness] in t h i s case, are per se nontestimonial and thus exempt from [c] onfrontation [c] lause scrutiny

. The United States S up re m e Court has not expressly decide d this issue, and, much like that Court, we will continue to define which statements

are ‘testimonial’ only

to the extent necessar

y to resolve the c ases be fore us.” ¶ 140 For the following rea sons, we respe ctfully disag ree with this approa ch. First, we be lieve that the rule we adopt here–namely
, that g overnme nt involvement is require d for a statement to be deeme d testimonial hear say –is the b e tte r-r easone d rule (as explained by the above case s and–par ticularly –Professor Gra

ham) and is more c o n s is tent w it h D a v is

, Cr

a wf o r d

, and Giles

. Second, clar ification and guidance are neede d now by the trial cour

ts of I llinois
, who must deal with these complex and difficult evidentiar y issues in pending
, serious case s. The failure
to provide that guidance does a disservice to the t rial bench and bar. An d third, we cannot hold the rules o f ev i d ence in abeyance until such time–if ever –the United States Supreme Court chooses to ag ain addre ss this issue to provide clar ification

. As of this writing
, that Court has no case on its docket that would pr ovide a ve hicle for such cla rification, and we
cannot pre d i ct wh en and if the United States Supreme Court will choose to acc ept a particula r ca se or to addr ess a c erta in issue.

¶ 141 5. The Need for “Governm ent Inv olveme nt” To Include the “Conduit Theory” ¶ 142 The Geor g etown L aw J ournal article we cited ear lier provides some interestinganaly sis

-25-beca use whil e it “maintains that gover nment involvement is cruc ial to finding a st at em ent tes timonial,” it adds that “a superf icial application of this argument risks crippling the constitutional rig hts of t he accuse d.” Torchin, supra , at 612. T h e article then ex plains this

conce rn as f

ollows: “Unde r what Professor Mosteller has called the ‘conduit theory ,’ statements cre ated by the decla rant-w itness for prosec utorial o r i n vestig ative use ag ainst the acc used transmitted indirectly to the authorities are still essentially testimoni al and should be
treated as such. *** The rele vant i nquiry in such i nstance s is not whether a reasonable
person would have anticipated the ultimate path of the statement, but r ather how direc t

or attenu ated the relationship was betwee n the conduit’s motivation to transmit the
statement t o law enforce ment ag ents and the intent of the acc using declar ant-witness.” Id

. ¶ 143 For an understanding of this c onduit theory in a rea l c ase, we need look no further than the dec ision of the Wis consin Supreme Court in State v. Jensen , 2007 WI26, 299 Wis . 2d 267, 727 N.W.2d 518 (Wis. 2007), even though that court did not use the term “conduit.” In Jense n , the defe ndant was convicted of killing his wife, J ulie. On appea l, the court addre ssed the admissibili ty of (1) a letter J ulie wrote to the police, (2) a voicemail messag e and other
statements J ulie made to police office r Ron Kosman, (3) statements J ulie made to a neighbor, and (4) statements J ulie made to her son’s teac her. At trial, the neighbor testified that just prior to her death, J ulie g ave him an envelope and told him that if any thing happene d to her, he should g ive the envelope to the police. J ulie also told him that she was upset and scar ed, and she fea

red that the defe ndan t wa s t ry i ng to poison her or inject her with something beca use he was trying to g et her to drink wine and she fo u n d s y ri ng es in a draw er. Additionally
, J ulie told him that she did not think she would make it throug h one particula r

wee kend beca

use she had found suspicious notes written by her husband and computer pag es about poisoning. Id. ¶ 5. ¶ 144 On the day afte r J ulie’s death, the neighbor g ave the seale d envelope that he had rec eived from her to the police. It contained a handwr itten letter that a document examiner conclude d

was written by J ulie, addre ssed to “Plea s an t P ra i rie Police Depa rtment, Ron Kosman or De tective Ratzenburg ,” and it bore J ulie’s signature. The letter conveyed in detail J u l i e’ s suspicions and conce rns about her husband, explained that beca use of her children she would

never commit suicide, and descr ibed how she did not drink and did not use much in the way of medication. Id. ¶ 7. ¶ 145 Kosman testified that he rec eived two voice mails from J ulie approximately two wee ks prior to her death. In the second, she said she thought the defe ndant was trying to kill her, and she aske d him to call he r back. He did a nd subsequently went to he r home to ta lk w ith he r. She told him that she saw strang e writing s on the defe ndant’s day planner
, and she said that the defendant was looking at s t ra n ge material on the Interne t. She told Kosman t hat i f she

wer e found dead, she did not commit suicide, and the defe ndant should be the first suspect. Id. ¶ 6. ¶ 146 Two wee ks befor e J ulie died, the teac her had a conver sation with J ulie in which she said she was afr aid her husband was g oing to kill her. J ulie explained to the teac her in some detail

-26-why she believe d that. I d. ¶ 9 n.3. ¶ 147 Be fore the Wi s co n s i n S up re m e C o u rt , t h e S t ate arg ued, in part, that g overnme nt involvement in c reating a statement is an indispensable feature of testimonial he arsa y

. The Wis consin Supreme Court disagree d, explaining that “such a na r r o w d e f init io n o f te stimoni al could cre ate situations wher e a decla rant could nefa

riously incriminate a defe ndant.” Id. ¶ 24. The c ourt adde d the followinganaly sis: “[W ]e conclude that under the circ umstances, a re as o n ab le person in J ulie’s position would anticipate a letter

addre ssed to the police and acc using another of murder would be availab l e for use at a later trial. The content and the circ umstances surrounding the letter make it ve ry clea

r that J ulie intended the letter to be used to f urther investigate or ai d i n p ro s ecution in the event of her death. Rather than being addre ssed to a casu al
acqua intance or friend, the letter was purposely direc ted toward law enfor ceme nt ag ents. The letter also descr ibes J ensen’ s alleg ed activities and conduct in a way t h at clea rly implicates J ensen if ‘ any

thing ha ppens’ to her

. *** Perhaps most tellingly
, J ulie’s letter also rese mbles L ord Cobha m’ s le tter implicating Sir Walter Raleig h of trea son as discussed in Crawf ord
, 541 U.S. at 44, 124 S. Ct. 1354. At Raleig h’s trial, a prior ex amination and letter of Cobham implicating Raleig h in
trea son wer e rea d t o t h e jury

. *** Whil e J ulie’s letter is not of a formal nature as Cobham’s letter was, it still is testimonial in nature as it clea rly implicates J ensen in her murder. I f we wer e to conclude that her letter was nontestimonial, we would be allowing

acc users the rig ht to make statements clea rly intended for prosec utorial purposes without

ever having to worry about being cro s s -examined or confr onted by the acc used. We firmly believe Crawf

ord and the [c]onfrontation [c] lause do not support such a result.

*** Finally
, we consider the statements J ulie made to [t he neighbor ] and [ t h e t ea ch er]

. *** Whil e we reiter ate that g overnme ntal involvement is not a nece ssary condition for testimonial statements, we conclude that under the circ umstances of this case , J ulie ’s statements to [t he neighbor] and [t he tea cher ] were nontestimonial. Essentially , we a re not convince d that statements t o a neighbor and a child’s teac her, unlike the l etter and voicemails–which wer e direc tly intended for the police–we re made under circ umstances which would lead a rea sonable person in the decla ra n t ’s position to conclude these statements would be available f or later use at trial.
* * *
In sum, under Crawf

ord
, we conclude that J ulie’s letter and voicemail messag es are testimonial, while her statements to [t he neighbor] and [t he teac her] are nontestimonial.” Id. ¶¶ 27- 34. ¶ 148 Although we share the conce rns of the Wis consin Supreme Court reg arding J ulie’s letter
to the police and we agree that the letter constituted testimonial hear say , we do not agree that these holdi ng s require the further conclusion, as re ache d by that court, “ that g overnme ntal involvement is not a necessar y condition for testim onial statement s

. ” Id. ¶ 31. Instead, we conclude a more appropr iate approa ch would be to apply the “conduit theory ,” as discussed

-27-in the Georg etown L aw J ournal a rt icle. That is, althoug h J ulie’s l etter was i n fac t g iven t o

her neig hbor, the neighbor was mere ly a conduit for convey in g J ulie’s statements to the police in the clea

r hope that, if she is found dead, the police will perha ps use the information in the letter to investigate and prosec ute her husband. When so viewed, J ulie’s letter can be

corr ectly seen as a co m munication by her to the police, which cer tainly would satisfy the

re qu i reme nt of g overnme nt involvement befor e a hear say statement can be deeme d testimonial hearsa

y

. ¶ 149 In the case befor e us, although Da wn fea red for her life at the hands of defe ndant, she
eng ag ed in non e o f the conduct that J ulie (the victim in Jense n ) did, so as to make J ulie’s neig hbor (to whom she ga ve a le tter to be de livered to the police in the event of her death)

mere ly a conduit of the stateme nts ulti mately delivere d to the police.

¶ 150 6. Gove rnment Inv olveme nt May Bea Question of Fact for Resolution by the Trial Court ¶ 151 We ear lier noted that g overnme nt involvement is required f or a state ment to constitute testimonial hear say

. Howeve r, in a g iven case , both the exis tence and extent of g overnme nt involvement may not be clea r. Thus, making these deter minations may require fac t-finding by the trial court. And such fac t finding may also be require d t o d et er m i n e whether the “conduit theor

y” applies. ¶ 152 For instance, at issue in Hernade z v. Stat e , 946 So. 2d 1270, 1271 (Fl a. Di s t

. C t . App. 2007), was the admissibili ty of statements the young victim of an alleg ed sexual battery and her pare nts made to a nurse who was a member of the local “ ‘Child Protection Team.’ ” When the child and her pare nts did not testify at trial, the issue on appea l was whether their
statements to the nurse constituted testimonial hear say and should have been excluded. The appellate court conclude d that the nurse was acting in conce rt with law enfor ceme nt in questioning the child and her pare nts to g ather information for a potential criminal
prosec ution. Acc ording ly
, the court reve rsed the conviction and rema nded for a new trial. Id. at 1271. ¶ 153 In rea ching this conclusion, the Hernade z court addre ssed authori t y t h e State cited in support of its claim t h at the statements wer e not testimonial hear say

. In doing so, it distinguished Foley v

. S

ta te , 2 0 0 4 -KA- 00070-SCT (¶ 10) (Miss. 2005) (holding that a child’s
statements about sexual abuse to various medical profe ssionals wer e nontestimonial wher e

no evidenc e showed that the medical profe ssionals had contac ted the police or wer e acting in c oncer t w ith them to inter

rog ate the child or investig ate he r cla ims), and State v. Moses
, 119 P.3d 906, 912 (Wash. Ct. App. 2005) (wife ’s statements to e merg ency room phy sician about an attack by her husband wer e nontestimonial beca use the phy sician had no role in the investigation and was not working with the police to develop testimony for prosec ution). The Hernande z court conclude d that the fac ts befor e it dem o n s trated substantial and officia l police involvement in the production of the statements and the deliberate purpose to g ather information for a potential criminal prosec ution. The court added that “[t] hese are hallmarks of testimonial statements.” He r n a n dez
, 946 So. 2d at 1284. We believe that these case s

corr ectly stand for the proposition that when either the exis tence or the extent of g overnme nt

-28-involvement is not clea r, the trial court should rec eive pertinent evidenc e and make
appropr iate finding s of fa ct. ¶ 154 In the prese nt case , howeve r, we need not further addre ss any g overnme nt involvement in the making or re ce i ving of Dawn’ s various hear say statements. The rec ord befor e us

reve als no such involvement at a ll.

¶ 155 7. Dawn’s Hearsay Statements W

ere Not Testimonial Hearsay ¶ 156 Adher ing to the Supreme Court’s guidance in Crawf ord and Davis
, we reje ct def endant’ s contention that the admission of Dawn’ s numerous hears ay statements violated his six th amendment rig ht to confr ontation. Her e, the evidenc e showed that the statements reg arding defe ndant’s threats to kill Dawn wer e made (1) in response to questions primarily by friends, family members, and cowor kers who i n qu i re d o f Dawn for various rea sons or (2) wer e volunteere d by Dawn to that same audienc e, un d o ub t edly for a host of rea sons that had nothing to do with ensuringdefe ndant was inc arc erated but, instead, eve ry thing to do with her conce rn that defe ndant might kill her. We need not, howeve r, speculate as to the rea sons for the questions put to Dawn or Dawn’ s willingness to make the statements at issue. Simpl y put, a ccor ding to United States Supreme Court doctrine, Dawn’ s statements at issue in this

case did not constitute testimonial hear s ay b ec ause there was no g overnme nt involvement in eliciting or

rec eivingthem.

¶ 157 8. The Stechly P luralit y ¶ 158 In so concluding
, we acknow ledg e that five y ear s ag o, a plurality of the Supreme Court of I llinois discussed the need for g overnme nt involvement in testimonial hear say

. In People

v. Stechly
, 225 I ll. 2d 246, 870 N.E.2d 333 (2007), the plurality noted that the United States Supreme Court had not–at that time–had occa sion to apply the confr ontation clause to statements other than those made in response to police interrog ation; the Stechly plurality further obs er ved that the Court “lef t open the questions not only ‘whe n’ but ‘ whether ’
statements made to persons other than law enfor ceme nt personne l are ‘testi m o n i al

. ’ ” (Emphasis in orig inal.) St echly
, 225 I ll. 2d at 285, 870 N.E.2d at 357 (quoting Davis
, 547 U.S. at 823 n.2). In Stechly
, the S t at e h ad ar gued that only statements made to law enfor ceme nt personne l can be testimonial. The Stechly p l u rality declined to adopt that position, pointing out t h at whi le there is languag e in Crawf ord emphasizing the role of
g overnme nt office rs in cre ating testimonial hear say , Crawf ord itself imposed no such per se rule. Stechly , 225 I ll. 2d at 286, 870 N.E.2d at 357. ¶ 159 A majority of the Supreme Court of I llinois in Stechly did not support the position of the Stechly plurality

. J ustice Kilbride concur red in part and dissented in part, explaining that “the plurality ’s analy sis of b o t h the section 115-10 issue and the confr ontation clause claim is faulty .” Id. at 317, 870 N.E.2d at 374 (Kilbride, J
., concur ring in part and dissenting in part). Howeve r, beca

use he agree d “with the plurality ’s ultimate holding on the con fr o n t ation clause claim that the defe ndant’s convictions must be reve rsed and the cause rema nded for

a hear ing on forf

eiture by wrong doing,” he concur red in the judgme nt. Id. at 317, 870 N.E.2d at 374 (Kilbride, J., concurr ing in pa rt and dissentingin part).

-29-¶ 160 Then-Chief J ustice Thomas dissented on the g round that reve rsal was not require d on the

particula r fac ts of the case beca

use impr o p erly admitting cer tain statements constituted harmless err or. In rea ching that d ec ision, he agree d with the plurality that the child sex victim’s hear say statements to her mother constituted nontestim o n i al hear say under Crawf ord and that the child’s other two statements at issue (one to a child abuse nurse at the hospital to which the child was brought, and another to a school social wo rk er wh o later interviewe d the child) both constituted testimonial hear say and were improperly admitted. Id. at 330-31, 870 N.E.2d a t 382 (Thomas, C.J ., dissenting, joined by Kar meier, J.). ¶ 161 J ustices Gar

man and Kar

meier joined in Chief J ustice Thomas’ dissent, and neither the three dissenters nor J ustice Kilbride add re s s ed in any way the plurality ’s discussion of whether only statements made to law

enfor ceme nt personnel c an be te stimoni al hea rsay

. ¶ 162 We further note that under the fac ts of Stechly
, the plurality ’s discussion on this issue was dicta beca use it was not nece ssary for a resolution of the issue befor e the court. That is, the Stechly plurality conclude d that the nurse and social worke r wer e acting essentially as “ ‘ag ents of law enfor ceme nt’ ” at the time they spoke with the victim, so that their acts may be said to be “ ‘ac ts of t he p o l ice.’ ” Id. at 300, 870 N.E.2d at 365 (majority op.). Thus, in support of its conclusion that the statements constituted testimonial hear say , the Stechly
p l u ra l i ty noted that the interviews the nurse and social worke r conducte d “appe ar to have been for the sole purpose of g ather ing information in order to pass it along to the authorities.” Id. at 300, 870 N.E.2d at 365. ¶ 163 In the last five y ear s, the Supreme Court of I llinois has ref err ed to Stechly
, but the issue of whether statements made to nong overnme nt officia ls can ever co n stitut e testimonial
statements under Crawf

ord was not prese nt in the case s in which those ref ere nces occur

red. See People v. Sutton
, 233 I ll. 2d 89, 908 N.E.2d 50 (2009); In re Rolandis G.
, 232 I ll. 2d 13, 902 N.E.2d 600 (2008). In Sutton
, the court did ref er to how the Stechly plurality conclude d that if the statements at i s sue wer e not the product of law enfor ceme nt interrog ation, the
proper focus is on the intent of the decla rant and the inquiry should be whether the objective circ umstances would lead a rea sonable person to conclude that the statements could be used
ag ainst the defe ndant. Sutton
, 233 I ll. 2d at 111, 908 N.E.2d at 64. Howeve r, none of that was at issue in Su tton beca

use all of the statements in question wer e made to law enfor ceme nt personne l. ¶ 164 The only I llinois case citing the Stechly plurality ’s hold i n g t h at a s t at em en t may be testimonial even if not made to law enforce ment personne l is the Thi rd Dist rict’s decision in People v. Belknap
, 396 I ll. App. 3d 183, 209, 918 N.E.2d 1233, 1256 (2009). And even in Belknap
, the court did not need to rely upon the Stechly p l u ralit y to rea ch its decision beca use the court conclude d that the statements at issue in that case wer e not testimonial. Those statements wer e made by the mother of the child victim in that first degree murder

case in which the defe ndant, the mo t h er ’s b o y friend who was living with the mother and victim, was char g ed with beating the child to death. The statements wer e made by the mother
to a para medic at the hospital to which the ch i l d wa s t aken for treatment. The para medic asked the mother, “ ‘Did he hurt her? ’ ” to which the mother replied, in part, “ ‘I will never trust her with him ag ain.’ ” Id. at 192, 918 N.E

. 2 d at 1 2 4 3

. The appellate court conclude d that the m other’s statements to the paramedic we re not testimonial beca use t he paramedic

-30-was providing car e for the child and a rea sonabl e p er s o n i n the mother’s circ umstances

would not have believed that her statements could be used in a criminal prosec ution ag ainst the defe ndant. Id. at 209, 918 N.E.2d at 1256. Thus
, the court in Belknap did not need to decide whether a statement could be testimonial absent g overnme nt involvement in eliciting

or re ceivingthat statement. ¶ 165 Importantly
, the I llinois Supreme Court decid ed St ec h l y b ef o re t h e Un i t ed S tates Supreme Court i ssued i ts opinion in Giles . In addition, the Belknap court similarly did not consider Giles

.

¶ 166 I I I . CONCLUSI ON ¶ 167 For the rea sons stated, we aff irm the trial court’s judgme nt. As part of our judgme nt, we

awa rd the State its $75 statutory assessment ag ainst defe ndant as c osts of this appeal.

¶ 168 Affir

med.

¶ 169 J USTI CE POPE, specially concur ring

. ¶ 170 I agree with the majority ’s analy sis of the applicability of section 115-10.2a of the Code. Supra ¶¶ 86-93. I also agree Dawn’ s statements wer e not testimonial and t h er efore their admission did not violate the confr ontation c lause as interpre ted in Crawf ord

. I conclude a

rea sonable person in Dawn’ s position would n o t h a v e a nti cipated her statements likely would be used in prosec uting the defe ndant, and thus in acc ordanc e with People v. Stechly
, 225 I ll. 2d 246, 292, 870 N.E.2d 333, 361 (2007), her statements would be admissi b l e u n der Crawf ord

. L ast, I find para g raphs 128 to 131, supra , unnece ssary to our decision in this case and conse quently

do not join in t hat par

t of the opinion.

-31-