dissenting:
I respectfully dissent. In her petition for rehearing, defendant acknowledges that this court found that B.R.’s statements failed to meet the admissibility requirements of section 115 — 10. However, the petition asserts that this court should have relied upon the Supreme Court’s holding in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). After oral argument, this court permitted defendant to cite Crawford as additional authority. Our original Rule 23 dispositional order, authored by Justice Hartigan, did not address Crawford.
Generally, a reviewing court should not reach constitutional issues if the case can be determined on other grounds. People v. Nash, 173 Ill. 2d 423, 432 (1996); City of Chicago v. Powell, 315 Ill. App. 3d 1136, 1140 (2000). I initially strongly agreed with the majority’s desire to address the Crawford issue in this case, as I think that any intelligent discourse on how to interpret significant new cases advances the goal of providing the trial courts and other courts of review with the benefit of our analysis. However, our supreme court recently pointed out a significant drawback to this principle, holding: “the appellate court’s insistence on addressing the constitutional questions which arose from the United State Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), led to scores of opinions in which opposite conclusions were reached. Compare Rush, 322 Ill. App. 3d 1014, with People v. Adams, 333 Ill. App. 3d 171 (2002).” People v. Jones, 213 Ill. 2d 498, 506 (2004). While Jones involved whether or not the waiver language in section 122 — 3 of the Post-Conviction Hearing Act (725 ILCS 5/122 — 3 (West 2000)) precluded the appellate court from addressing claims raised for the first time on appeal, the supreme court’s admonition is well taken even when the issue has not been waived but is, instead, addressed in dicta.
Defendant’s petition for rehearing correctly asserts that Crawford applies to this case. Our supreme court has consistently held that judicial opinions announcing new constitutional rules are applicable to criminal cases pending on direct review at the time the new constitutional rule is declared. People v. Ford, 198 Ill. 2d 68, 73 (2001), citing Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987). Other cases have similarly held that Crawford applies to cases on direct review. People v. Martinez, 348 Ill. App. 3d 521, 533 (2004); People v. Thompson, 349 Ill. App. 3d 587, 594 (2004).
■ In Martinez, a division of the First District held: “It is important to note that in determining whether a prior out-of-court statement is admissible, the proponent of the statement first must meet the requirements of the applicable statutory hearsay exception as set out in section 115 — 10 et seq. (725 ILCS 5/115 — 10 et seq. (West 2002)). The holding in Crawford should be considered only after the court determines the proffered statement complies with the requirements of the applicable statute.” Martinez, 348 Ill. App. 3d at 535.
In our original dispositive order, we held that B.R.’s statements were admitted in violation of sections 115 — 10(a)(2), (b)(1), and (b)(2)(B) (725 ILCS 5/115 — 10 (a)(2), (b)(1), (b)(2)(B) (West 2000)). In her petition for rehearing, defendant does not quarrel with this holding, but she still asks us to address the holding in Crawford. I first note that even if B.R.’s statements did not violate Crawford, they would still not be admissible.
In support of their holding that B.R.’s grandmother’s testimony recounting B.R.’s outcry statements was violative of Crawford, the majority rely primarily upon the holding in In re T.T., 351 Ill. App. 3d 976 (2004). The court in InreT.T. considered Crawford’s effect on the victim’s statements during a medical examination. Approximately six months after the offense, DCFS directed the victim to obtain a forensic medical exam by a doctor in the child protection unit of a hospital. During the exam, the doctor questioned the victim regarding the offense, and the victim made statements regarding what happened to her and identifying her baby-sitter’s son as the offender.
The appellate court easily dismissed the defendant’s argument distinguishing between treating and examining physicians, stating that the exam was for a diagnostic purpose and the victim’s statements were the by-product of substantive medical activity. Similarly, the court explicitly rejected the claim that the doctor acted as the government’s agent, regardless of the fact that the medical exam was the result of a DCFS referral. The court noted that “Crawford indicates that governmental involvement in some fashion in the creation of a formal statement is necessary to render the statement testimonial in nature.” In re T.T., 351 Ill. App. 3d at 988.
The court then concluded that “a victim’s statements to medical personnel regarding ‘descriptions of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source thereof’ (725 ILCS 5/115 — 13 (West 2000)) are not testimonial,” but that the victim’s statements identifying the offender were testimonial. In re T.T., 351 Ill. App. 3d at 993. The majority correctly characterize this portion of the holding in In re T.T. as focusing “on the nature of the testimony in determining whether it is violative of an accused’s right to confrontation, as opposed to the official or unofficial nature of the person whom the State wants to testify to the declarant’s out-of-court statement.” 355 Ill. App. 3d at 574-75.
In People v. West, 355 Ill. App. 3d 28 (2005), the court followed the holding in In re T.T., and held that the nontestifying sexual assault victim’s statements to the emergency room nurse and doctor which concerned the identity of her attacker “ ‘implicate the core concerns protected by the confrontation clause.’ In re T.T., 351 Ill. App. 3d at 993.” West, 355 Ill. App. 3d at 37-38. However, the West court went on to find that the statements made by the victim to a citizen (Jackson) who opened her door in response to the victim’s (M.M.) pleas for help were not violative of Crawford: “Jackson was no more than a concerned citizen and *** her actions in relaying information to the 911 dispatcher do not transform her into an agent of the government. When M.M. appeared at Jackson’s door, she was crying for help. Jackson took M.M. into her home and asked her what had happened. The purpose behind Jackson’s questions was clearly altruistic and, as such, we fail to see how she was acting as a governmental officer seeking evidence in anticipation of a potential criminal prosecution.” West, 355 Ill. App. 3d at 41.
I believe that the T.T. and West courts’ determination that the victims’ statements to the medical personnel lacked governmental involvement should have ended the analysis under Crawford.3 The great weight of authority supports the proposition that where the proffered statements were not made to a governmental actor such as law enforcement (or their proxy), under Crawford the statements cannot be testimonial regardless of their content. Although the Crawford Court did not fully define “testimonial,” it did provide three formulations of the core class of testimonial statements which the Court of Appeals for the First Circuit described as follows:
“In the first, testimonial statements consist of ‘ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.’ [Citation.] The second formulation described testimonial statements as consisting of ‘extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.’ [Citations.] Finally, the third explained that testimonial statements are those ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ [Citation.] While the Court declined to settle on a single formulation, it noted that, ‘[wlhatever else the term [testimonial] covers, it applies ... to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern *** abuses at which the Confrontation Clause was directed.’ ” Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004), quoting Crawford, 541 U.S. at 51-52, 68, 158 L. Ed 2d at 193, 203, 124 S. Ct. at 1364, 1374.
In Horton, the Court of Appeals rejected the defendant’s argument that the admission of a statement made to a civilian acquaintance (Garcia) violated Crawford: “In light of these formulations, Christian’s statements do not qualify as testimonial. They were not ex-parte in-court testimony or its equivalent; were not contained in formalized documents such as affidavits, depositions, or prior testimony transcripts; and were not made as part of a confession resulting from custodial examination. Rather, Christian’s statements were made during a private conversation with Garcia.” Allen, 370 F.3d at 84.
Citing Horton, the Nebraska Supreme Court, in State v. Vaught, 268 Neb. 316, 682 N.W.2d 284 (2004), held that the statement of a child victim of sexual abuse did not fit any of the above formulations, nor did it share characteristics of these formulations. Consequently, the court held that the victim’s statement to an emergency room physician was not a “testimonial” statement under Crawford, even though the child’s statement identified the perpetrator, the half brother of the child’s mother. Vaught, 268 Neb. at 325, 682 N.W.2d at 291.
In State v. Manuel, 275 Wis. 2d 146, 685 N.W.2d 525 (App. 2004), the Court of Appeals of Wisconsin rejected the defendant’s argument that a police officer’s testimony recounting the statement of the girlfriend of an eyewitness (Stamps), which statement in turn related that Stamps saw the defendant shoot the victim, was violative of Crawford. “Despite the [Crawford] Court’s failure to provide a ‘comprehensive definition,’ we have little difficulty concluding that Stamps’ statement to his girlfriend is not ‘testimonial’ in nature. The statement was not made to an agent of the government or to someone engaged in investigating the shooting. The statement thus does not fall within any of the categories of testimonial statements expressly identified in Crawford (prior trial, preliminary-hearing and grand-jury testimony and statements made during police interrogations).” (Emphasis in original) Manuel, 275 Wis. 2d at 161-62, 685 N.W.2d at 532. I would point out that, while I agree that Stamps’ statement to his girlfriend clearly does not come under the penumbra of Crawford, the court of appeals did not address how the statement of his girlfriend to the police was not violative of Crawford where the girlfriend did not testify.
In People v. Garrison, 109 P.3d 1009, 1012 (Colo. App. 2004), the Colorado Court of Appeals held that a murder victim’s hearsay statements to his training manager that “an old friend of his was calling and threatening to kill him” were properly admitted at the defendant’s trial under the excited utterance exception to the hearsay rule. The court also rejected the defendant’s claim under Crawford: “Nothing in the record indicates that the victim’s statements to the training manager would constitute testimonial hearsay. The statements were not made to the police and there is no indication that the manager was acting as a police agent. Thus, we conclude that Crawford does not apply here.” Garrison, slip op. at 3.
The Colorado Court of Appeals also addressed Crawford in People v. Compan, 100 P.3d 533 (Colo. App. 2004), cert. granted, No. 04 SC 422, (Colo. October 25, 2004). In Compan, the victim asked a friend to pick her up at her home because her husband, the defendant, was beating her. Upon getting into the friend’s car, the victim reiterated that the defendant had just beaten her. The friend took the victim to the hospital for treatment, where the victim was interviewed by the police. When the victim failed to appear at the defendant’s trial, the prosecution called the victim’s friend. The friend testified to the victim’s statements under the excited utterance exception to the hearsay rule. The court of appeals first considered the holding in Crawford.
“Here, we conclude that the victim’s statements are not testimonial within the meaning of Crawford. The statements were made to the victim’s friend, not to a law enforcement or judicial officer. Although the statements were not ‘casual or off-hand’ because the victim was distraught, they do not qualify as the kind of ‘solemn or formal’ declarations that the Crawford majority associated with testimonial statements. The victim’s statements were not made for the purpose of establishing facts in a subsequent proceeding.
Because the statements are not testimonial their admission does not violate the United States Constitution under the rule of Crawforal.” Compan, 100 P.3d at 538.
In McKinney v. Bruce, No. 02—3248 JAR (D. Kan. July 29, 2004), the United States District Court in Kansas considered whether a murder victim’s (Miller) statements to his uncle were violative of Crawford: “Miller’s statements that ‘Les’ [a defendant] wanted to talk to him and that he was leaving to go see what ‘Les’ wanted [are] non-testimonial. The statements were not ex parte in-court testimony, contained in formalized documents, nor were they the result of a police interrogation. Instead, they were statements made in a private conversation between Miller and his uncle.” Bruce, slip op. at 12. The court further opined that hearsay statements admitted under the state of mind exception are not made under circumstances which would lead an objective person to believe that the statements would be available for use at a later trial.
In Demons v. State, 277 Ga. 724, 595 S.E.2d 76 (2004), the Georgia Supreme Court considered whether statements admitted under the necessity exception and the res gestae exception to the hearsay rule violated Crawford. The court found that the “necessity” statement in which the murder victim told a coworker that the defendant was going to kill him was not testimonial “as it was made in a conversation with a friend, before the commission of any crime.” Demons, 277 Ga. at 727-28, 595 S.E.2d at 80. The court similarly found that the “res gestae” statement in which the murder victim told a different coworker that the defendant was going to kill him was not “testimonial” under Crawford. Demons, 277 Ga. at 728-29, 595 S.E.2d at 81.
In her response to the State’s reply to her petition for rehearing, defendant cites to In re Rolandis G., 352 Ill. App. 3d 776 (2004). This case actually supports the State’s position that B.R.’s grandmother’s testimony was not violative of Crawford. In re Rolandis G. did hold that the minor victim’s statements to a police officer and a child advocacy worker concerning a sexual assault were testimonial in nature. Consequently, those statements were inadmissible under the confrontation clause where the juvenile offender’s counsel was unable to cross-examine the victim. However, the appellate court also held that the minor victim’s statements to his mother concerning the sexual assault were not “testimonial” under Crawford. In re Rolandis G., 352 Ill. App. 3d at 783. The foregoing cases demonstrate that where the proffered statements were not made to a governmental actor, such as law enforcement or their proxy, the statements are not “testimonial” under Crawford. Consequently, B.R.’s statements to her grandmother were not testimonial under Crawford.
I also strongly disagree with the majority’s holding that section 115 — 10 is unconstitutional. In support of this holding, the majority posit: “section 115 — 10 seeks to admit a declarant’s out-of-court statement into evidence, without the declarant being present in court, as long as there is some other evidence that corroborates the out-of-court statement and the statement is deemed reliable.” 355 Ill. App. 3d at 577. As the majority point out in footnote 2, section 115 — 10(b) permits into evidence testimony of an out-of-court statement made by the victim of a sexual assault who is under 13 years of age, describing an element of the offense for which the defendant is being prosecuted, but such testimony shall only by admitted if (1) the court finds “that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) The child *** (A) testifies at the proceeding.” (Emphasis added.) 725 ILCS 5/115 — 10(b)(1), (b)(2)(A) (West 2000). It is abundantly clear that when a child victim testifies pursuant to section 115 — 10(b)(2)(A), the requirements of Crawford are met. As the majority point out, “ ‘when the declarant appears for cross-examination at trial, the confrontation clause places no constraints at all on the use of his prior testimonial statements’ ” (emphasis omitted), and “ ‘[t]he Clause does not bar admission of [the] statement so long as the declarant is present at trial to defend or explain it.’ ” (Emphasis omitted.) 355 Ill. App. 3d at 573, quoting Crawford, 541 U.S. at 60 n.9, 158 L. Ed. 2d at 197 n.9., 124 S. Ct. at 1369 n.9 Because of this holding, defendant does not assert that KR.’s outcry statements to the grandmother were violative of Crawford.
“A statute is facially unconstitutional only if ‘ “no set of circumstances exists under which the Act would be valid.” ’ ” People v. Jackson, 199 Ill. 2d 286, 301 (2002), quoting In re C.E., 161 Ill. 2d 200, 210-11 (1994), quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987). The holding in Crawford does permit the admission into evidence of coconspirator statements (Crawford, 541 U.S. at 57, 158 L. Ed. 2d at 196, 124 S. Ct. at 1367) and dying declarations (Crawford, 541 U.S. at 56 n.6, 158 L. Ed. 2d at 195 n.6, 124 S. Ct. at 1367 n.6). The majority also accepted the “rule of forfeiture by wrongdoing,” which extinguishes confrontation claims on “essentially equitable grounds.” Crawford, 541 U.S. at 62, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370. Further, the majority discussed whether spontaneous declarations would fall under the ambit of Crawford, 541 U.S. at 58, 158 L. Ed. 2d at 196, 124 S. Ct. at 1368, but left that issue for another day. Chief Justice Rehnquist’s concurrence posited that statements made in the course of procuring medical services have been treated as an exception to the confrontation requirement as well. Crawford, 541 U.S. at 74, 158 L. Ed. 2d at 207, 124 S. Ct. at 1377 (Rehnquist, C.J., concurring, joined by O’Connor, J.).
In addition to the above exceptions, if the statement at issue is not “testimonial,” then Crawford does not limit the admissibility of the statement:
“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framer’s design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.
Based on the above exceptions and language found in Crawford, it is clear that “set[s] of circumstances exist” under which many of our statutory exceptions to the hearsay rule would be valid. Consequently, those statutory exceptions would not be unconstitutional on their face, but only as applied. A statute would be unconstitutional as applied when the statute permits a statement that is “testimonial” under Crawford to be admissible into evidence without requiring both that the declarant be unavailable and the existence of a prior opportunity for cross-examination.
Another important reason for our courts to reject the argument that section 115 — 10 and other similar statutes are unconstitutional is that these statutes provide additional protections to the defendants in criminal cases. The instant case is an excellent example of this. While B.R.’s outcry statements to her grandmother were not testimonial under Crawford, they were still inadmissible because they did not comply with the reliability requirements of section 115 — 10(b)(1). 725 ILCS 5/115 — 10(b)(1) (West 2000). This result is similar to that reached in People v. Miles, 351 Ill. App. 3d 857, 867 (2004).
Defendant’s petition for rehearing also asks this court to reconsider the analysis we employed in determining that the admission of B.R.’s outcry statements constituted harmless error.
In People v. Johnson, 116 Ill. 2d 13, 28 (1987), our supreme court held: “Confrontation errors, though constitutional violations, do not automatically warrant reversal (see Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056; Delaware v. Van Arsdall (1986), 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431; Schneble v. Florida (1972), 405 U.S. 427, 31 L. Ed. 2d 340, 92 S. Ct. 1056), and the defendant’s convictions may therefore be affirmed if we are able to conclude that the error was harmless beyond a reasonable doubt (see Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.”
Johnson’s holding that violations of a defendant’s constitutional right to confrontation may be harmless error has been followed recently in People v. Lofton, 194 Ill. 2d 40, 61 (2000); People v. McClanahan, 191 Ill. 2d 127, 139 (2000); People v. Davis, 185 Ill. 2d 317, 338 (1998); and People v. Dean, 175 Ill. 2d 244, 258-59 (1997).
“ ‘The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.’ ” Davis, 185 Ill. 2d at 338, quoting Van Arsdall, 475 U.S. at 684, 89 L. Ed. 2d at 686-87, 106 S. Ct. at 1438.
Illinois courts have applied a harmless error analysis to alleged violations of Crawford in People v. Patterson, 347 Ill. App. 3d 1044, 1051 (2004); Thompson, 349 Ill. App. 3d at 594-95; and People v. Miles, 351 Ill. App. 3d 857, 867 (2004).
Applying these principles to the instant case, I would find that we cannot say that the error in admitting B.R.’s outcry statements was harmless as to the aggravated criminal sexual assault counts in which B.R. is the victim. Consequently, I would vacate defendant’s adjudication of wardship for those counts. I would also merge the lesser charge of aggravated criminal sexual abuse with K.R. as the victim into the aggravated criminal sexual assault with K.R. as the victim. I would also find that defendant’s adjudication of wardship as to the one remaining count of aggravated criminal sexual assault in which K.R. is the victim is fully supported by the evidence. The trial court found the testimony of K.R., her mother, her grandmother, Chicago police investigator Terrazas, and Ms. Wilkins of the Department of Children and Family Services to be credible and sufficient to prove defendant delinquent beyond a reasonable doubt. Defendant fails to advance a persuasive argument as to why this evidence is insufficient to conclude that the error in admitting B.R.’s outcry statements was harmless beyond a reasonable doubt as to the count naming K.R. as the victim.
While I disagree with the holdings in the decisions in In re T.T. and West which precluded identification portions of the victims’ statements to medical personnel as violative of Crawford, those holdings may have been correct under the medical treatment exception to the hearsay rule (725 ILCS 5/115 — 13 (West 2002)). See People v. Falaster, 173 Ill. 2d 220 (1996) (stating when medical personnel may testify as to a victim’s statements identifying her attacker).