As a threshold matter, then, we must determine whether Sergio "appear[ed] for cross-examination" within the context of Crawford. People v. Sharp, 355 Ill. App. 3d 786, 792 (2005), a recent case from the Fourth District, is instructive on this matter. In Sharp, the defendant was charged with predatory criminal sexual assault.
Crawford, 541 U.S. at 59 n. 9, 158 L. Ed. 2d at 198 n. 9, 124 S. Ct. at 1369 n. 9. In People v. Sharp, 355 Ill. App. 3d 786 (2005), the Fourth District discussed what it meant to "appear for cross-examination" for purposes of the confrontation clause. In Sharp, the defendant was charged with predatory criminal sexual assault.
Rolandis G., 352 Ill. App. 3d at 783-84. The State, citing to the Fourth District Appellate Court decision in People v. Sharp, 355 Ill. App. 3d 786 (2005), argues "that the key question is whether the declarant was present for cross-examination and answered defense counsel's questions." In Sharp, the victim testified "at some length" about "what she did and with whom she did it" on the day that she was sexually assaulted.
In March 2005, this court disagreed with defendant's arguments and affirmed his conviction. People v. Sharp, 355 Ill. App. 3d 786, 825 N.E.2d 706 (2005) (hereinafter Sharp I). Defendant filed a petition for leave to appeal with the Supreme Court of Illinois.
At the section 115-10 hearing, the trial court must consider the totality of the circumstances surrounding the hearsay statements and should consider the following factors in making a reliability determination: "(1) the child's spontaneity and consistent repetition of the incident, (2) the child's mental state, (3) the child's use of terminology unexpected of a child of similar age, and (4) the child's lack of motive to fabricate." People v. Sharp, 355 Ill. App. 3d 786, 796, 825 N.E.2d 706, 714 (2005), citing People v. Cookson, 335 Ill. App. 3d 786, 791, 780 N.E.2d 807, 811 (2002). "The State bears the burden of proving that the statements were reliable and not the result of adult prompting or manipulation."
We ask whether section 115-10, reasonably interpreted, violates the confrontation clause in all conceivable circumstances. In Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374, the Supreme Court held that when the government seeks to introduce a testimonial hearsay statement in a criminal trial, the "reliability" test in Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539 (1980), and Idaho v. Wright, 497 U.S. 805, 816, 111 L. Ed. 2d 638, 652-53, 110 S. Ct. 3139, 3147 (1990)"which our legislature codified in section 115-10 ( People v. Sharp, 355 Ill. App. 3d 786, 796, 825 N.E.2d 706, 713 (2005))"cannot serve as a surrogate for the defendant's sixth-amendment right to confront and cross-examine the declarant. Sections 115-10(a) and (b) provide:
In this case, the child testified, which fell within the first prong of 803(c)(27), and she was available for and was in fact subjected to cross-examination, thereby satisfying Crawford. See People v. Sharp, 355 Ill.App.3d 786, 292 Ill.Dec. 118, 825 N.E.2d 706, 712 (2005); Elkins v. State, 918 So.2d 828, 832 (Miss.App. 2005), cert. denied 921 So.2d 1279 (Miss. 2006), cert. denied ___ U.S. ___, 126 S.Ct. 2865, 165 L.Ed.2d 898 (2006); Commonwealth v. Cesar, 911 A.2d 978, 982-83 (Pa.Super. 2006). This case does not present a situation where a child victim takes the stand but cannot remember sufficient details of the offense to provide meaningful testimony or is unable or refuses to respond to questions posed on cross-examination.
In other words, when a child sex abuse victim appears at trial and is subject to cross-examination, any prior statement of the victim being offered pursuant to section 115-10 of the Code is a nonevent. People v. Sharp, 355 Ill. App. 3d 786, 796 (2005). Here, the victim testified at trial and was subject to cross-examination.
1. The Constitutionality of Section 115-10 Citing Justice Cook's dissent in People v. Sharp, 355 Ill. App. 3d 786, 802-04, 825 N.E.2d 706, 718-20 (2005) (Cook, P.J., dissenting), defendant first argues that section 115-10 of the Code is unconstitutional, at least (apparently) as applied under the circumstances of this case. (We note that the supreme court ordered Sharp vacated in a nonprecedential order on January 28, 2009 ( People v. Sharp, 231 Ill. 2d 649, 899 N.E.2d 1076 (2009)), the same date — and with the same directions — that the supreme court vacated the decision in this case.)
In other words, when a child sex abuse victim appears at trial and is subject to cross-examination, any prior statement of the victim being offered pursuant to section 115-10 of the Code is a nonevent. People v. Sharp, 355 Ill. App. 3d 786, 796 (2005). Here, the victim testified at trial and was subject to cross-examination.