1-05-1433
SECOND DIVISION December 5, 2006
No. 1-05-1433
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) Honorable DAVID OEHRKE, ) Catherine M. ) Haberkorn, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
Frieda Oehrke, the defendant’s 91-year-old mother, was
brought to the emergency room at Resurrection Hospital, where she
told a doctor and a nurse she did not know why her son kept
hitting her. The issue in this case is whether Frieda’s
statements in the emergency room were admissible at the
defendant’s trial. Because we find the statements were
inadmissible hearsay we reverse the defendant’s aggravated
battery conviction and remand this cause for a new trial.
FACTS
On June 24, 2000, Frieda was taken by paramedics to the
emergency room at Resurrection Hospital. She had a one inch
bleeding wound on the top of her head, old bruising on the right
side of her face, and multiple areas of bruising on her body in 1-05-1433
various stages of healing. Defendant lived with Frieda and was
her sole caregiver. On August 24, 2000, Frieda died of unrelated
causes.
Prior to trial, the State filed a motion, pursuant to
section 115-10.3 of the Code of Criminal Procedure of 1963 (Code)
(725 ILCS 5/115-10.3 (West 2000)), to admit Frieda’s out-of-court
statements through her treating doctor and nurse, two police
officers, and an elder abuse investigator. Section 115-10.3
provides for the admission of certain hearsay statements made by
an elder adult in a prosecution for elder abuse if 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. 725 ILCS 5/115-
10.3 (West 2000).
Following a hearing on the motion, the trial court
determined the testimony of Dr. Rachael Burke, Nurse William
Babiarz, Officer Paul Zitek, and Detective Terrance Hart was
trustworthy and reliable, and would be allowed as an exception to
the hearsay rule under section 115-10.3. Before trial, however,
the United States Supreme Court decided Crawford v. Washington,
541 U.S. 36, 53-54, 124 S.Ct. 1354, 1366, 158 L.Ed.2d 177, 194-95
(2004), which held the confrontation clause bars the “admission
of testimonial statements of a witness who did not appear at
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trial unless he was unavailable to testify, and the defendant had
a prior opportunity for cross-examination.”
Because of Crawford, the State withdrew its motion to admit
the evidence under section 115-10.3. Instead, it offered only
the statements Frieda made to Dr. Rachel Burke, an emergency room
physician, and Nurse William Babiarz, relying entirely on the
common law hearsay exception that addresses statements made for
the purpose of obtaining medical diagnosis or treatment. The
trial court, over defense counsel’s hearsay objections, admitted
the statements, holding the common law hearsay exception was
satisfied.
Dr. Burke and Nurse Babiarz testified they were the first
hospital personnel to treat Frieda at about 10:30 p.m. on June
24. When Nurse Babiarz and Dr. Burke initially asked Frieda what
happened, she did not respond and moaned in pain. Defendant was
present in the treatment room. Frieda was disoriented and did
not know the date. On cross-examination, Nurse Babiarz said
Frieda told him “she didn’t know what happened” when he first
questioned her.
Frieda had a large laceration on the top of her head and a
large bruise with a small laceration on her right eyebrow.
Frieda also had bruises on her left upper lip, on top of both of
her shoulders, and above both of her kneecaps. The numerous
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areas of bruising and the appearance of the lacerations led Dr.
Burke and Nurse Babiarz to believe the injuries did not occur at
the same time. Dr. Burke noted if a person fell to her knees, it
would not cause the type of bruising Frieda had above her
kneecaps. Dr. Burke also noted she would not expect a person to
sustain bruises on the top of her shoulders during a fall.
After Frieda was given medication to raise her blood sugar
and became more alert and cooperative, she told Nurse Babiarz
“she didn’t understand why she [sic] was trying to shut me up,
hitting me with his hand.” This happened shortly after midnight.
Nurse Babiarz then notified Dr. Burke and the police. Defendant
was not in the treatment room when Frieda made the statement.
When Dr. Burke and Nurse Babiarz went back into the treatment
room, Frieda again said she did not know why her son kept hitting
her. On cross-examination, Nurse Babiarz agreed Frieda’s
statement that her son injured her “could have been in response
to [his] question or [his] suggestion that her son did it.”
Frieda’s statements were made 90 minutes after she was admitted
into the hospital, after Dr. Burke treated Frieda’s head wound.
Dr. Burke said Frieda was “somewhat unreliable and only
partially oriented” during a few of the occasions when she spoke
with Frieda. Dr. Burke noted, however, that Frieda did not seem
unreliable when she said her son had hit her. She testified it
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was important for Frieda’s treatment to know how she had been
injured and if she had been injured at the hands of her
caregiver. This information would affect Dr. Burke’s “final
disposition knowing whether she would be safe to go home or not
or whether they–-she would be cared for at home or not.”
Defense counsel objected to the admission of the hearsay
statements on the grounds that they did not fit within a
recognized hearsay exception, arguing the statements regarding
the assailant’s identity had nothing to do with her injuries or
treatment. The State, relying on child sexual abuse cases,
argued an exception applies when the alleged attacker is a family
member because it is necessary to know the identity of the abuser
to prevent future abuse. The trial court agreed with the State,
noting one of the pertinent factors in the child abuse cases was
that the victim lived with the alleged abuser. Because defendant
lived with Frieda and was responsible for her caretaking, the
court found the statements relevant to her care and treatment.
Dr. Mark Dorfman, an emergency room physician at
Resurrection Hospital, testified he treated Frieda on June 24,
2000. Frieda had a laceration to her scalp, a laceration over
her eyebrow which looked old, swelling around her eye, a small
hemorrhage in her eye, and multiple bruises on her back and
extremities that appeared to be in different stages of healing.
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Dr. Dorfman opined the injuries were not consistent with Frieda
falling out of bed twice on the same day.
Detective Terrance Hart testified he was assigned to
investigate a possible aggravated battery against Frieda.
Defendant told Detective Hart that Frieda was depressed after she
returned home from a hospital stay and had fallen twice. After
the second fall, defendant noticed her head was bleeding.
Defendant called Dr. Podgers, who advised him to take his mother
to the hospital. Defendant told Detective Hart that he was
having difficulty taking care of her and was trying to get a
homemaker to come in and help.
Defendant showed Detective Hart the bedroom where Frieda
fell. Detective Hart saw a large pool of blood on a wooden floor
next to the middle of Frieda’s bed. A picture of the bedroom,
People’s Exhibit Number Nine, depicted a wooden stool at the head
of the bed and blood on the wooden floor. When asked if the
picture accurately depicted the bedroom, Detective Hart said he
did not recall the stool being there. He did not document the
stool in his report or have it checked for blood.
Defendant agreed to return to the Area 5 police station for
further questioning. During questioning, defendant said his
mother had fallen down twice. Defendant said Frieda’s injuries
were cause by the falls, not by him hitting her. After defendant
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was arrested and again read his Miranda rights, defendant
admitted that he put his hand on his mother’s mouth “to shut her
up.” Defendant said his mother fell and hit her head on a metal
object. He did not push her the first time she fell. When
Detective Hart asked defendant what he meant, defendant did not
answer.
The parties stipulated to the testimony of Kathleen Minogue
and Kevin O’Malley, the Chicago Fire Department paramedics called
to Frieda’s home. Minogue and O’Malley found Frieda face down on
the floor by the bed in a pool of blood. There was no object in
the area which Frieda could have struck while falling.
The defense presented evidence through a series of
stipulations. Marianne Monroe, a registered nurse, treated
Frieda on June 25, 2000. When Monroe asked Frieda what happened,
Frieda said “I may have fallen.” Amy Baldwin, a physical
therapist, and Kathy Kornbluth, an occupational therapist,
treated Frieda on June 28, 2000. Frieda was oriented only to
herself and did not know the date or time. Both Baldwin and
Kornbluth concluded Frieda was confused and memory impaired.
The trial court found defendant guilty of aggravated battery
and sentenced him to three years’ probation. Defendant appealed.
DECISION
I. Confrontation Clause Violations
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Defendant, relying on Crawford, contends Frieda’s statements
to Nurse Babiarz and Dr. Burke constituted testimonial evidence.
Defendant contends their admission at trial, in the absence of an
opportunity to cross-examine Frieda, violated his sixth amendment
constitutional right of confrontation.
We will not consider a constitutional question if the case
can be decided on other grounds. People v. Mitchell, 155 Ill. 2d
344, 356, 614 N.E.2d 1213 (1993); People v. Dixon, 28 Ill. 2d
122, 125, 190 N.E.2d 793 (1963). Because we find the trial court
erred in admitting Frieda’s hearsay statements under the medical
diagnosis and/or treatment exception to the hearsay rule, it is
unnecessary for us to consider the Crawford issue presented here.
See Mitchell, 155 Ill. 2d at 356.
II. Hearsay Exception
Defendant contends the trial court erred in admitting out-
of-court statements Frieda made to Nurse Babiarz and Dr. Burke.
We agree.
Once the State abandoned its section 115-10.3 motion, it,
and eventually the trial court, relied on the common law hearsay
exception for statements made to medical personnel for purposes
of medical diagnosis and treatment.
Illinois recognizes the common law exception to the hearsay
rule for statements made by a patient to medical personnel for
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the purpose of medical diagnosis and treatment. People v. Gant,
58 Ill. 2d 178, 186, 317 N.E.2d 564 (1974); People v. Coleman,
222 Ill. App. 3d 614, 625, 584 N.E.2d 330 (1990). The exception
encompasses “ ‘statements made to a physician concerning the
cause or the external source of the condition to be treated.’ ”
Coleman, 222 Ill. App. 3d at 625, quoting Gant, 58 Ill. 2d at
186.
A trial court is vested with discretion in determining
whether the statements made by the victim were “ ‘reasonably
pertinent to the victim’s diagnosis or treatment.’ ” People v.
Davis, 337 Ill. App. 3d 977, 989-90, 787 N.E.2d 212 (2003),
quoting People v. Williams, 223 Ill. App. 3d 692, 700, 585 N.E.2d
1188 (1992). Statements identifying the offender, however, are
beyond the scope of the exception. Davis, 337 Ill. App. 3d at
990; People v. Hudson, 198 Ill. App. 3d 915, 921-22, 556 N.E.2d
640 (1990); People v. Taylor, 153 Ill. App. 3d 710, 721-22, 506
N.E.2d 321 (1987).
Notwithstanding, the State contends the trial court properly
admitted Frieda’s statements identifying defendant as the
offender because Frieda, a 91-year-old woman, lived with
defendant and depended on his care. The State contends knowing
the identity of the abuser was crucial to Frieda’s diagnosis and
medical treatment in this case because the medical personnel had
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to know they were not discharging her back into a dangerous
situation. In support, the State cites two child sexual abuse
cases where section 115-13 of the Code of Criminal Procedure (725
ILCS 5/115-13 (West 2000), the statutory hearsay exception for
statements by victims of sexual offenses to medical personnel,
was extended to include a child victim’s statements identifying
the abuser: People v. Falaster, 173 Ill. 2d 220, 670 N.E.2d 624
(1996), and People v. Morgan, 259 Ill. App. 3d 770, 631 N.E.2d
1224 (1994).
Section 115-13 is a codification of the firmly-rooted common
law hearsay exception allowing statements describing medical
history, pain, or sensations for purposes of diagnosis and
treatment. People v. Roy, 201 Ill. App. 3d 166, 179, 558 N.E.2d
1208 (1990). “The assumption underlying both section 115-13 and
the common law exception is that the desire for proper diagnosis
or treatment outweighs any motive to testify falsely.” Roy, 201
Ill. App. 3d at 179. While section 115-13 is not at issue in
this case, we find the cases discussing the scope of the
statutory hearsay exception help shed light on the scope of the
common law exception.
In Morgan, the defendant contended the trial court erred in
allowing two doctors to testify regarding his stepson’s
statements identifying him as the abuser. The court held
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statements by a child abuse victim to a physician during an
examination that the abuser is a member of the victim’s immediate
household are reasonably pertinent to treatment. Morgan, 259
Ill. App. 3d at 781. “Because of ‘special problems associated
with intrafamily sexual abuse, *** the identity of the abuser is
often an important element in diagnosing and treating the
victim.’ ” Morgan, 259 Ill. App. 3d at 781, quoting State v.
Vosika, 83 Or. App. 298, 731 P.2d 449, 452 (1987).
In Falaster, the defendant contended the trial court erred
in allowing a nurse to testify regarding his eight-year-old
daughter’s statements identifying him as her abuser. The court
held that, “at least in a family setting, a victim’s
identification of a family member as the offender is closely
related to the victim’s diagnosis and treatment in cases
involving allegations of sexual abuse.” Falaster, 173 Ill. 2d at
230, citing Morgan, 259 Ill. App. 3d at 781-82. Defendant was
not a stranger the victim would never see again, he was her
father. Falaster, 173 Ill. 2d at 230. The victim’s physical and
emotional health, now and in the future, would be affected by her
relationship with the defendant. Falaster, 173 Ill. 2d at 230.
That fact was significant in diagnosing and treating the victim
at the time of the abuse and would remain an important fact for
future treatment. Falaster, 173 Ill. 2d at 230.
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In Falaster and Morgan the courts recognized intra-family
sexual abuse of a child creates unique psychological harm that
requires special treatment. See Falaster, 173 Ill. 2d at 230;
Morgan, 259 Ill. App. 3d at 781. Identification of a family
member as the offender was closely related to the victim’s future
psychological treatment. See Falaster, 173 Ill. 2d at 230;
Morgan, 259 Ill. App. 3d at 781.
In this case, Frieda’s statements were made 90 minutes after
she was admitted to the hospital, and after Dr. Burke had
finished treating Frieda’s head wound. Unlike Falaster and
Morgan, there is no suggestion in the record that Dr. Burke and
Nurse Babiarz questioned Frieda in order to assist in her present
or future psychological treatment. Instead, Dr. Burke said she
questioned Frieda in order to determine whether it was safe for
her to return home to defendant’s care.
No Illinois court has extended the medical diagnosis and
treatment hearsay exception to include an adult physical abuse
victim’s statements identifying her attacker. See People v.
Cassell, 283 Ill. App. 3d 112, 125, 669 N.E.2d 655 (1996)
(statements made by the victim of aggravated criminal sexual
assault that she was dragged from her apartment were admissible;
however, statements relating to the identity of her attacker, her
live-in boyfriend, were not admissible because they were not
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necessary for receipt of proper medical treatment.) In order to
find a hearsay exception in this case, we would have to shift the
rationale behind the hearsay exception from medical treatment and
diagnosis to prevention of future physical harm. We decline to
broaden the terms of the medical diagnosis and treatment
exception by judicial fiat, “lest the exception swallow a rule
that has served so well for so long.” See People v. Johnson,
296 Ill. App. 3d 53, 65-66, 693 N.E.2d 1224 (1998).
Dr. Burke’s and Nurse Babiarz’s questions were intended to
protect Frieda from returning to an abusive environment, not to
assist in her medical diagnosis and treatment. Dr. Burke’s
concern for Frieda’s safety was laudable, but concern never has
been held by any Illinois court to support the medical diagnosis
and/or treatment exception to the rule against hearsay.
Therefore, we find the common law exception to the hearsay rule
did not apply to Frieda’s statements. We find the trial court
erred in admitting the statements at trial.
We must now address the question of whether the trial
court’s erroneous admission of Frieda’s statements identifying
defendant as her abuser was harmless error. People v. Cumbee,
366 Ill. App. 3d 476, 500, 851 N.E.2d 934 (2006). The admission
of the evidence is harmless error if there is no reasonable
probability that the verdict would have been different had the
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hearsay been excluded. People v. Bridgewater, 259 Ill. App. 3d
344, 349, 631 N.E.2d 779 (1994); People v. Bodoh, 200 Ill. App.
3d 415, 432, 558 N.E.2d 178 (1990); People v. Griggs, 104 Ill.
App. 3d 527, 531, 432 N.E.2d 1176 (1982).
The record reflects Frieda’s statements to Dr. Burke and
Nurse Babiarz played a crucial role in this trial. In reaching
its decision, the trial court said: “One of the interesting
things that Dr. Burke stated in her notes that she put quotes
around the portion where the victim said ‘to shut her up.’ And
this is what she said that’s why her son was doing this to her.”
The trial court also said: “I think its significant that after
she was given dextrose, after her son was removed from the room,
that she did say in fact to Dr. Burke and to Nurse Babiarz that
her son was the one who inflicted these injuries. That the ‘shut
up, shut me up’ is in quotes.”
While Frieda’s statements that defendant was trying to “shut
her up” were corroborated by defendant’s own statement to
Detective Hart, Frieda’s statements that her son hit her were
uncorroborated. Since Frieda’s statements that her son hit her
were the foundation of the State’s case, we cannot see how the
erroneous admission of her hearsay statements was harmless error.
Based on the record, we cannot say “the properly admitted
evidence was so overwhelming, without the erroneously admitted
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hearsay statements, that no fair-minded trier of fact could
reasonably have acquitted the defendant.” See Bridgewater, 259
Ill. App. 3d at 349. We find the trial court’s admission and use
of Frieda’s hearsay statements was reversible error.
We are not making a finding as to defendant’s guilt or
innocence. Retrial of defendant, without Frieda’s inadmissible
hearsay statements, would not constitute double jeopardy. See
Johnson, 296 Ill. App. 3d at 66.
CONCLUSION
We find the trial court erred in admitting Frieda’s out-of-
court statements under the medical diagnosis and treatment
exception to the hearsay rule. The error warrants a new trial.
Reversed and remanded.
HOFFMAN, and HALL, JJ., concur.
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