JUSTICE CHAPMAN
delivered the opinion of the court:
Kevin McMillan was charged with two counts of aggravated criminal sexual assault against a minor. On January 10, 1991, a hearing was held on the six-year-old minor’s competency to testify. (See Ill. Rev. Stat. 1989, ch. 38, par. 115 — 14.) At that hearing the circuit court ruled that the minor would not be allowed to testify.
“The Court finds that the minor witness is capable of expressing himself but not capable of expressing himself concerning the matter that is before the Court. The Court finds further that the minor is incapable of understanding the duty of a witness to tell the truth. The witness is disqualified.”
On January 22, 1991, a hearing was held pursuant to section 115 — 10(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(b)) to determine whether out-of-court statements made by the minor would be admitted into evidence at trial. The court ruled that the minor’s statements to his mother were admissible under the “excited utterance” exception to the hearsay rule. The circuit court suppressed the minor’s statements to Boyd Vieregge, an investigator for the Department of Children and Family Services (DCFS), because those statements did not demonstrate “sufficient particularized guarantees of trustworthiness to be admissible in the face of defendant’s Confrontation Clause objection.” The State appeals the suppression of the statements the minor made to Vieregge. We affirm.
Section 115 — 10 of the Code of Criminal Procedure of 1963 contains a hearsay exception:
“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” (Ill. Rev. Stat. 1991, ch. 110, par. 115-10.)
Under this provision, there are no precise tests for evaluating trustworthiness or reliability, but rather “particularized guarantees of trustworthiness must be drawn from the totality of the circumstances surrounding the victim’s statements.” Idaho v. Wright (1990), 497 U.S. 805, 819, Ill L. Ed. 2d 638, 654-55, 110 S. Ct. 3139, 3148-49; People v. Coleman (1990), 205 Ill. App. 3d 567, 563 N.E.2d 1010.
The relevant circumstances to be examined when determining reliability are those that surround the making of the statement and that render the declarant particularly worthy of belief. (Wright, 497 U.S. at 819, 111 L. Ed. 2d at 655, 110 S. Ct. at 3148.) According to Wright, factors that relate to whether hearsay statements made by a child witness in a child sexual abuse case are reliable include, but are not limited to: spontaneity and consistent repetition; mental state of the declarant; use of terminology unexpected of a child of similar age; and a lack of motive to fabricate. 497 U.S. at 821-22, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150; see also Kling, The Confrontation Clause and Illinois’ Hearsay Exception for Child Sex Abuse Victims, 79 Ill. B.J. 560 (1991).
At the section 115 — 10 pretrial hearing, Kara Rickfelder, the minor’s mother, described statements that the minor had made to her shortly after the alleged assault. Rickfelder testified that she and the minor had visited Rickfelder’s grandmother and the defendant on January 6, 1990, at the grandmother’s trailer home in Altamont. During their visit, the minor and the defendant left the trailer about the same time. Later they returned together. Rickfelder returned to her home in Effingham and was preparing supper when she noticed that the minor was quiet. She went to check on him and found him standing in his bedroom closet. His pants were down and he was holding a stuffed animal in front of himself.
Rickfelder asked the minor what he was doing, and he responded that he was “playing house.” Rickfelder told him that they did not play house that way and asked whether anyone had touched him. The minor began crying and answered, “Yeah, Kevin.” Rickfelder testified that her son told her that the defendant placed his “thing” in the minor’s mouth and touched the minor’s “pee-pee” and pinched him. Rickfelder testified that at the time of the incident there was no foreign substance on the minor or his clothing.
Boyd Vieregge, an investigator for the Department of Children and Family Services (DCFS), testified that he met with the minor and his mother at their apartment on January 9, 1990. Vieregge testified that the minor, using the colloquialism “pee-pee,” told him that the defendant had touched the minor’s “pee-pee” both inside and outside his clothing. The minor told him that the defendant also grabbed his hair and pulled the minor’s head down to the defendant’s penis, which he placed in the minor’s mouth. The minor stated that “sticky” water came out of the defendant’s penis while it was in the minor’s mouth. The defendant also placed his mouth on the minor’s penis. Vieregge testified that the minor also told him that after he put his mouth on the defendant’s penis the defendant told him to keep their activity a secret.
Vieregge also testified that the minor told him that the defendant placed his finger in the minor’s bottom “where he goes poop” and that it had hurt. The minor told the defendant to stop, but the defendant said that he was going to do it again. However, the defendant ceased the assault.
Vieregge testified that as an investigator for DCFS he has interviewed at least several hundred children about allegations of sexual abuse. In making his reports of those interviews, he had not found all the allegations to be substantiated. Vieregge has been a child abuse investigator for approximately 12 years. He testified that he has attended a number of seminars designed to teach DCFS employees effective methods of interviewing children. In July 1990, he completed a DCFS requirement for 20 hours of such training in a two-year period.
Free access — add to your briefcase to read the full text and ask questions with AI
JUSTICE CHAPMAN
delivered the opinion of the court:
Kevin McMillan was charged with two counts of aggravated criminal sexual assault against a minor. On January 10, 1991, a hearing was held on the six-year-old minor’s competency to testify. (See Ill. Rev. Stat. 1989, ch. 38, par. 115 — 14.) At that hearing the circuit court ruled that the minor would not be allowed to testify.
“The Court finds that the minor witness is capable of expressing himself but not capable of expressing himself concerning the matter that is before the Court. The Court finds further that the minor is incapable of understanding the duty of a witness to tell the truth. The witness is disqualified.”
On January 22, 1991, a hearing was held pursuant to section 115 — 10(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(b)) to determine whether out-of-court statements made by the minor would be admitted into evidence at trial. The court ruled that the minor’s statements to his mother were admissible under the “excited utterance” exception to the hearsay rule. The circuit court suppressed the minor’s statements to Boyd Vieregge, an investigator for the Department of Children and Family Services (DCFS), because those statements did not demonstrate “sufficient particularized guarantees of trustworthiness to be admissible in the face of defendant’s Confrontation Clause objection.” The State appeals the suppression of the statements the minor made to Vieregge. We affirm.
Section 115 — 10 of the Code of Criminal Procedure of 1963 contains a hearsay exception:
“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” (Ill. Rev. Stat. 1991, ch. 110, par. 115-10.)
Under this provision, there are no precise tests for evaluating trustworthiness or reliability, but rather “particularized guarantees of trustworthiness must be drawn from the totality of the circumstances surrounding the victim’s statements.” Idaho v. Wright (1990), 497 U.S. 805, 819, Ill L. Ed. 2d 638, 654-55, 110 S. Ct. 3139, 3148-49; People v. Coleman (1990), 205 Ill. App. 3d 567, 563 N.E.2d 1010.
The relevant circumstances to be examined when determining reliability are those that surround the making of the statement and that render the declarant particularly worthy of belief. (Wright, 497 U.S. at 819, 111 L. Ed. 2d at 655, 110 S. Ct. at 3148.) According to Wright, factors that relate to whether hearsay statements made by a child witness in a child sexual abuse case are reliable include, but are not limited to: spontaneity and consistent repetition; mental state of the declarant; use of terminology unexpected of a child of similar age; and a lack of motive to fabricate. 497 U.S. at 821-22, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150; see also Kling, The Confrontation Clause and Illinois’ Hearsay Exception for Child Sex Abuse Victims, 79 Ill. B.J. 560 (1991).
At the section 115 — 10 pretrial hearing, Kara Rickfelder, the minor’s mother, described statements that the minor had made to her shortly after the alleged assault. Rickfelder testified that she and the minor had visited Rickfelder’s grandmother and the defendant on January 6, 1990, at the grandmother’s trailer home in Altamont. During their visit, the minor and the defendant left the trailer about the same time. Later they returned together. Rickfelder returned to her home in Effingham and was preparing supper when she noticed that the minor was quiet. She went to check on him and found him standing in his bedroom closet. His pants were down and he was holding a stuffed animal in front of himself.
Rickfelder asked the minor what he was doing, and he responded that he was “playing house.” Rickfelder told him that they did not play house that way and asked whether anyone had touched him. The minor began crying and answered, “Yeah, Kevin.” Rickfelder testified that her son told her that the defendant placed his “thing” in the minor’s mouth and touched the minor’s “pee-pee” and pinched him. Rickfelder testified that at the time of the incident there was no foreign substance on the minor or his clothing.
Boyd Vieregge, an investigator for the Department of Children and Family Services (DCFS), testified that he met with the minor and his mother at their apartment on January 9, 1990. Vieregge testified that the minor, using the colloquialism “pee-pee,” told him that the defendant had touched the minor’s “pee-pee” both inside and outside his clothing. The minor told him that the defendant also grabbed his hair and pulled the minor’s head down to the defendant’s penis, which he placed in the minor’s mouth. The minor stated that “sticky” water came out of the defendant’s penis while it was in the minor’s mouth. The defendant also placed his mouth on the minor’s penis. Vieregge testified that the minor also told him that after he put his mouth on the defendant’s penis the defendant told him to keep their activity a secret.
Vieregge also testified that the minor told him that the defendant placed his finger in the minor’s bottom “where he goes poop” and that it had hurt. The minor told the defendant to stop, but the defendant said that he was going to do it again. However, the defendant ceased the assault.
Vieregge testified that as an investigator for DCFS he has interviewed at least several hundred children about allegations of sexual abuse. In making his reports of those interviews, he had not found all the allegations to be substantiated. Vieregge has been a child abuse investigator for approximately 12 years. He testified that he has attended a number of seminars designed to teach DCFS employees effective methods of interviewing children. In July 1990, he completed a DCFS requirement for 20 hours of such training in a two-year period. Prior to the effective date of that requirement, Vieregge had attended probably 10 or 15 different courses or seminars for training and interviewing techniques and for the use of anatomically correct dolls. Those who spoke at the seminars, including physicians and psychologists, taught that questions asked of children should be open-ended and not leading. Vieregge testified that obtaining details in response to nonleading questions, watching the child’s body language, and ascertaining whether the child can distinguish day and night are ways of determining whether a child is credible.
On cross-examination, Vieregge testified that he did not hold a Ph.D. or a master’s degree in psychology and that he was not a psychiatrist or a registered clinical psychologist. Vieregge began talking with the minor about school and similar matters before asking him questions and receiving his answers about his contact with the defendant. He did not have a tape recorder when he interviewed the minor, whose mother was present on the opposite side of the room. Vieregge stated that during his interview of the minor he wrote out the questions and answers as they were asked and given.
The circuit court suppressed Vieregge’s testimony as to any statements the minor made to him and explained its ruling as follows:
“[T]he child’s statements in response to the DCFS Child Abuse Investigator fail to demonstrate sufficient particularized guarantees of trustworthiness to be admissible in the face of defendant’s Confrontation Clause objection. The statements were not spontaneous but were in response to questioning. The allegations of sexual abuse were not consistently repeated by the child: to the mother he complained of fondling and fellatio on defendant; to the DCFS Investigator he complained of fondling outside his clothing, fondling inside his clothing, forced fellatio on defendant to orgasm, defendant’s fellatio on the child, and digital sodomy; and to the Court the child denied any such conduct by defendant. The child’s mental state is not conducive to truthtelling, i.e., the child is incompetent to testify precisely because he cannot distinguish between truth and falsity. While it is true that the child did not, according to the investigator’s holographic notes, use any terminology unexpected of a five-year-old child, the interview was not videotaped nor tape-recorded nor was a verbatim transcript taken. The child had a motive to fabricate: the mother had caught the child in the closet where he had been before (because the mother ‘figured he was in the closet’), the child [sic] there made an allegation of sex abuse against defendant arguably to defuse the mother’s ire, and the DCFS Investigator allowed the mother to be present while he questioned the child. The DCFS Investigator, even according to his own holographic notes, asked leading questions of the child: ‘Were you touched under the clothes?’ ‘Did he shake his body or use his hand?’ ‘Did Kevin put his mouth on your body?’ And of course the DCFS Investigator had a preconceived idea of what the child’s complaints should be to seem consistent with the Child Abuse Hotline report which he specifically had come to investigate.
*** The child’s hearsay statements to the DCFS Child Abuse Investigator must be suppressed.”
Because Vieregge’s notes documenting his interview with the minor appear to underly the court’s decision, they are set forth below:
“Initially [the minor] and I talked about school. He said he was in kindergarten and that he likes school. He then showed me some of the things he had gotten for Xmas — 2 games a stuffed animal and 2 Tonka trucks. I then told [the minor] I wanted to talk to him about good touches and bad touches. I asked him if anyone else had ever talked to him about that. [The minor] said yes — the doctor. I told him I wanted to talk to him about that again to make sure he understood. I then discussed and explained good touches and bad touches w/ [the minor],
Q. Has anyone ever given you a bad touch?
A. Yes.
Q. Who?
A. Kevin.
Q. What did Kevin do?
A. He touched my pee-pee.
I then explained touches over and under the clothes to [the minor] by touching my arm on top of my sweater w/my hand as a touch over or on top of the clothes and touching my arm with my hand under my shirt and sweater as a touch under the clothes.
Q. How did Kevin touch you?
A. On top of my clothes.
Q. Where did this happen?
A. At Grandmas.
Q. Where does Grandma live?
A. Altamont.
Q. Did this happen inside or outside?
A. Outside.
Q. Was anyone else out there when this happened?
A. No — just me and Kevin.
I then talked to [the minor] about days of the week telling him today was Tuesday — a school day, that yesterday was Monday a school day, the day before that Sunday — w/Sunday school and church and the day before that was Saturday — cartoon day when cartoons are on all morning.
Q. What day did this happen?
A. Saturday.
Q. Did anything else happen?
A. (He put his hand under his shirt sleeve — as I had done when explaining a touch under the clothes.)
Q. Were you touched under the clothes?
A. Yes.
Q. How?
A. Kevin put his hand under my clothes and touched my pee-pee.
Q. Then what happened?
A. Kevin shook his pee-pee at me.
Q. Where?
A. Outside behind the trailer.
Q. How did Kevin do this — did he shake his body or use his hand, [sic]
A. He shook his body. ([The minor] made motions with his hip.)
Q. Then what happened?
A. He grabbed my head (as he said this [the minor] grabbed the hair of his head and pulled his head forward) and put his pee-pee in my mouth.
Q. Did anything come out of his pee-pee?
A. Water but it was sticky.
Q. Did Kevin say anything to you?
A. He said ‘keep it a secret.’
Q. Did Kevin put his mouth on your body?
A. Yes.
Q. Where on your body?
A. Kevin put his mouth on my pee-pee.
I then explained words ‘before’ and ‘after’ to [the minor] and before being what happened first.
Q. Can you tell me which one happened first?
A. I had to put my mouth on Kevin’s pee-pee first, then Kevin put his mouth on my pee-pee.
Q. Did anything else happen?
A. ([The minor] put his hand on his bottom and patted it.)
Q. Your bottom?
A. Yes.
Q. What about your bottom?
A. He touched it.
Q. How did he touch it?
A. With his hand.
Q. On top of the clothes or under the clothes?
A. Under the clothes.
I then talked about the bottom having two cheeks and a crack in the middle.
Q. Where did he touch your bottom?
A. The crack.
Q. What did he touch the crack with.
A. His fingers.
Q. Did it hurt?
A. Yes.
Q. Did he put his finger inside your bottom or just in the crack.
A. In my bottom where I go poop — that’s when it hurt.
Q. Did you say anything?
A. I said no.
Q. Did Kevin say anything?
A. He said Yeah.
Q. Did he stop.
A. No — he kept on doing it.
Q. Did you say anything else?
A. I said stop.
Q. Did Kevin say anything?
A. He said ‘I’m going to do it again.’
Q. Then what happened?
A. He stopped.
Q. Then what happened?
A. I went back in the trailer.
Q. Where does Kevin stay?
A. At Grandma’s.
Q. Was this in the morning or afternoon?
A. Afternoon.
Q. Was it light out or dark?
A. Still light.
Q. Has anyone else given you a bad touch.
A. No.
Q. Has anyone ever made you touch them?
A. No.
Q. Is the time you just told me about on Saturday the only time this has happened?
A. Yes.”
A court of review cannot be permitted to simply substitute its assessment of the evidence for that of the trial court (which saw and heard the witnesses who testified) when it reviews a trial court determination that hearsay statements are admissible under section 115— 10. (People v. Beavers (1991), 220 Ill. App. 3d 1057, 1068, 580 N.E.2d 1367, 1375.) The appropriate standard of review in such a case is whether the trial court’s decision is contrary to the manifest weight of the evidence. (220 Ill. App. 3d at 1068, 580 N.E.2d at 1375.) In the present case, our review of the record satisfies us that the trial court’s determination was not contrary to the manifest weight of the evidence.
The trial court found that the statements to Vieregge were not spontaneous but were in response to questioning. The State agrees that the minor made his statements to Vieregge three days after the alleged incident. The trial court next found that the “allegations of sexual abuse were not consistently repeated by the child.” The State argues that the testimony by the minor’s mother about his complaint to her was probably more general than Vieregge’s testimony because Vieregge is a trained and experienced investigator. Nonetheless it is undisputed that the minor was not consistent in the allegations of sexual abuse. The trial court’s finding is supported by the record.
The court next found that the child’s “mental state is not conducive to truth telling.” A child’s incompetence to testify at trial does not per se render the child’s out-of-court complaint unreliable under section 115 — 10. A case-by-case analysis is necessary to determine whether the statement is made unreliable under the specific facts and circumstances of the case. (Idaho v. Wright (1990), 497 U.S. at 824, 111 L. Ed. 2d at 658, 110 S. Ct. at 3151; People v. Rocha (1989), 191 Ill. App. 3d 529, 539, 547 N.E.2d 1335, 1341.) The court’s order refers to the competency hearing wherein the child denied any misconduct by the defendant when questioned in court. We have reviewed the transcript of the minor’s competency hearing. Under the circumstances of this case, we cannot conclude that the trial court erred in finding that the minor’s incompetence as a witness affected the reliability of his statements to Vieregge.
The State next challenges the trial court’s finding that Vieregge asked leading questions and had a preconceived notion of what the child’s complaints should be to be consistent with the child abuse hotline report. It is apparent from the record that Vieregge did have prior knowledge of the minor’s complaints as related to his mother. A review of Vieregge’s interview notes confirms that leading questions were asked of the minor. While Vieregge’s notes indicate that much of the interview was conducted using open-ended questions, the trial court considered that “the interview was not videotaped nor tape-recorded nor was a verbatim transcript taken.” This fact is not disputed by the State. Vieregge’s notes and his testimony are the only evidence of the interview. Defendant argues that the reliability of the minor’s statement rests upon Vieregge’s credibility in how he conducted the interview. Credibility of a witness is a matter for the trial court to determine, and a court of review will not disturb the trial court’s finding unless it is against the manifest weight of the evidence. (Orchard Shopping Center, Inc. v. Campo (1985), 138 Ill. App. 3d 656, 485 N.E.2d 1248.) We agree with the defendant that the trial court could have concluded that Vieregge had not conducted an interview conducive to obtaining a reliable statement. Given the facts of this case and because the trial court observed Vieregge’s demeanor while testifying, we cannot conclude that the trial court’s conclusion was contrary to the manifest weight of the evidence.
Finally, the trial court found that the minor “had a motive to fabricate.” There is no direct evidence that the mother found the minor in the closet on prior occasions or that the minor feared punishment from his mother because he was in the closet. However, the trial court is in a better position to judge the credibility of the witnesses and in this case was able to observe the demeanor of the mother while testifying. The inferences the trial court could draw from the mother’s manner while testifying support the trial court’s factual conclusion.
The court has considerable leeway in its consideration of appropriate factors when evaluating the totality of the circumstances surrounding a victim’s statements to determine their reliability. (Wright, 497 U.S. at 822, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150; People v. Beavers (1991), 220 Ill. App. 3d 1057, 580 N.E.2d 1367.) Under the circumstances in this case we cannot find that the trial court considered inappropriate factors in making its determination. In light of the above, we hold that the trial court’s decision that the minor’s statements to Vieregge were unreliable and, thus, inadmissible under section 115 — 10 of the Code was not contrary to the manifest weight of the evidence.
Affirmed.
GOLDENHERSH, P.J., concurs.