People v. Brandon P. (In re Brandon P.)

2014 IL 116653

10 N.E.3d 910

381 Ill.Dec. 501

In re BRANDON P., a Minor (The People of the State of Illinois, Appellee, v. BRANDON P., Appellant).

No. 116653.

Supreme Court of Illinois.

May 22, 2014.

Michael J. Pelletier, State Appellate Defender, Karen Munoz, Deputy Defender, and Catherine K. Hart, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.

Lisa Madigan, Attorney General, of Springfield (Carolyn E. Shapiro, Solicitor General, and Michael M. Glick and Erin M. O'Connell, Assistant Attorneys General, of Chicago, of counsel), for the People.

OPINION

Justice THOMAS delivered the judgment of the court, with opinion.

¶ 1 Respondent, Brandon P., was charged by petition for adjudication of wardship with aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(2)(i) (West 2010)). The petition alleged that the then 14–year–old respondent committed an act of sexual conduct against his 3–year–old cousin, M.J. Following an adjudicatory hearing, the circuit court of Vermilion County found respondent guilty and sentenced him to the Illinois Department of Juvenile Justice for an indeterminate period not to exceed (1) the period for which an adult could be committed for the same act, or (2) the date of respondent's twenty-first birthday, whichever came first. 705 ILCS 405/5–710(7), 5–750 (West 2010). Respondent appealed, and the appellate court affirmed the adjudication. 2013 IL App (4th) 111022, 372 Ill.Dec. 809, 992 N.E.2d 651. This court allowed respondent's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. July 1, 2013).

¶ 2 BACKGROUND

¶ 3 On November 15, 2010, respondent was charged by petition for adjudication of wardship with aggravated criminal sexual abuse in that he, “being under the age of 17 years, committed an act of sexual conduct against [M.J.], who was under nine years of age when the offense was committed, in violation of 720 ILCS 5/12–16(c)(2)(i).” On December 21, 2010, the State filed its notice of intent to present evidence under section 115–10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115–10 (West 2010)). The State gave notice that it intended to offer the statements that M.J. made to her mother on October 23, 2010, and to Detective Troy Hogren, of the Danville police department, on October 26, 2010. The State indicated that M.J.'s statement to her mother was that “Brandon put that stuff in his mouth on her vagina which made her vagina hurt and Brandon put his finger in her vagina.” M.J.'s statement to Detective Hogren was that “Brandon put his finger in her vagina which made her feel bad and Brandon spit on her vagina and put his penis on her at Uncle Mike's.”

¶ 4 The section 115–10 hearing began on May 10, 2011. M.J.'s mother, Teresa J., testified that on October 23, 2010, she was living with her children: 19–year–old Stephanie; 19–year–old Kayla; 7–year–old Lucas; 5–year–old Alana; and 3–year–old M.J. On that day, Teresa picked up respondent, her nephew, from the police station, for reasons unrelated to the instant case. Teresa brought respondent to her house, where he spent the night. Teresa and Stephanie left the house the next morning to run errands. After Teresa returned home, she was sitting at the dining room table with Stephanie, Kayla, and Jeff, Kayla's boyfriend. Lucas, Alana, M.J., and respondent were upstairs playing in Lucas's bedroom. Teresa heard M.J. scream, so Jeff went up to check on the kids. Lucas's bedroom door was shut, and something was tied around the door. Jeff opened the door and the kids came downstairs. Teresa then left to pick up her brother, Mike, respondent's father. Mike and Teresa returned to Teresa's home. Mike and respondent left shortly thereafter.

¶ 5 Teresa testified as follows concerning what happened after respondent left:

“Q. [Assistant State's Attorney:] And then what happened after Brandon left?

A. Uhm, I can't remember approximately how long it was after Brandon left, but [M.J.] had come downstairs; and she was—she was holding herself.

Q. What do you mean by holding herself?

A. She had her hand on her—her pee-pee as she would say, and she had—I thought she had to go to the bathroom. And I asked her if she had to go, and she said yes but it hurt. And I told her to go ahead and—I believe I told her to go ahead and go. Then I asked her why it hurt, and she said because Brandon had put spit in her pee-pee.

Q. And after she said—after she said that, did you ask any further questions?

A. I, uhm, I asked her, uhm—well, then I scooped her up and I took her to—I took her to my brother's house.”

¶ 6 When they arrived at Mike's house, Teresa told M.J. to tell Uncle Mike and Aunt Aundrea, respondent's parents, what M.J. had just told Teresa. M.J. told them that “Brandon had put had [ sic ] spit on her pee-pee.” Teresa then called 911 and took M.J. to the emergency room.

¶ 7 On cross-examination, the following exchange took place:

“Q. [Defense attorney:] So when you were questioning or talking to [M.J.], you—she stated to you that her pee-pee hurt; is that correct?

A. Yes.

Q. And then what exactly did you say after that?

A. Her pee-pee hurt, that's why she couldn't go pee. I asked her why, and she said that Brandon had spit on her pee-pee.

Q. And she—she used the actual word spit?

A. She went like—said, ‘He did this and put it on my pee-pee.’

THE COURT: The record should reflect that the witness inserted her right index finger in her mouth indicating the motion by the child.”

¶ 8 On redirect examination, the assistant State's Attorney asked Teresa whether M.J. “actually said spit or what words she used, did she not actually say it or did she just make that motion with her finger?” Teresa replied that M.J. “made the motion with her finger, and she said—I'm getting frustrated. I'm sorry. Yeah, she made that motion with her finger and said that she had—he had spit—put spit in her pee-pee.”

¶ 9 The section 115–10 hearing was continued to May 26, 2011. On that date, Detective Troy Hogren testified that he was a police officer for the City of Danville, Illinois, and was assigned to the juvenile division of the police department. In October 2010, Detective Hogren became involved in the investigation concerning M.J. Detective Hogren interviewed M.J. on October 26, 2010, at the public safety building. Teresa was present when Detective Hogren interviewed M.J. Detective Hogren introduced himself to M.J., explained that he was a police officer and worked with kids, that M.J. was not in any trouble, and that he was there to talk with her about something that may have happened to her. M.J. sat on her mother's lap while Detective Hogren was talking to her.

¶ 10 With regard to the investigation, Detective Hogren testified:

“Well, I explained to [M.J.] that I wanted to talk to her about what she had told her mother a couple days ago and that I was here to talk to her about something that may have happened to her that she didn't like, and she told me that she was at home there in Lucas's bedroom and it was her and Lucas and Alana and Brandon and they were playing police and cops, some sort of a police and cops game, and she couldn't tell me what Brandon's last name was she just told me that Brandon was Uncle Mike's son. And then Teresa explained that that was his—that was—Uncle Mike was her brother. And she indicated to me that they were playing this game and that Brandon stuck his finger in her pee pee.

Q. She said that he stuck his finger in her pee pee?

A. Yes.

Q. Did—did you ask her what pee pee was or—

A. Well, when she said that she pointed, she made a motion with her finger in between her legs.

Q. And pointed in between her legs?

A. Yes, in the front.

Q. And after she made that statement did you inquire more of her from that?

A. I asked her if she—if she had her clothes on or off. She said her clothes were on. I asked her if she had told anybody what happened to her and she said she told Aundrea and Uncle Mike which would be Brandon's parents what had happened to her. She said she told them that Brandon spit in her pee pee and that Brandon put his weiner on her at Uncle Mike's house.

Q. And she said that happened at Uncle Mike's house?

A. Well, she said that Brandon put his weiner on her at Uncle Mike's house.”

¶ 11 Following argument, the trial court ruled that there was a sufficient basis to find M.J.'s statements to her mother and to Detective Hogren reliable and therefore held that those statements would be admissible at trial pursuant to section 115–10.

¶ 12 Respondent's adjudicatory hearing began on August 8, 2011. Teresa was the first witness, and testified consistently with her testimony at the section 115–10 hearing. With regard to the allegations against respondent, Teresa testified that five to ten minutes after respondent left her house, M.J. came downstairs and said she had to go to the bathroom. Teresa told M.J. to go, but M.J. said she could not go because it hurt. When asked if she knew what M.J. was referring to when M.J. said that it hurt, Teresa testified, “She said it hurt to go potty. And I asked her why it hurt, and that's when she told me because—because Brandon put spit in her pee-pee.”

¶ 13 After a recess, the proceedings reconvened in the jury room for M.J.'s testimony. The State, M.J., Teresa, respondent, defense counsel, and respondent's father, Mike, were present for M.J.'s testimony.

¶ 14 The following exchange took place during the trial court's preliminary questioning of M.J.:

“THE COURT: Can you tell me how old you are?

A. Four.

THE COURT: Four. Did you just turn four?

A. (Witness nodding head up and down)

THE COURT: Do you know what your birth date is?

A. (Witness shaking her head back and forth)

THE COURT: No? Did you have a birthday party?

A. (Witness nodding head up and down)

THE COURT: Was it a good party?

A. (Witness nodding head up and down)

THE COURT: Okay. Do you know where we are? Do you know what this building is called?

A. (Witness shaking...