dissenting:
I respectfully dissent. As the circuit court noted in its February 12, 1991, order, the State sought to introduce the child complainant’s hearsay statements to the DCFS investigator pursuant to the statutory exception to the rule against hearsay, and defendant sought to bar the introduction of the statements because such introduction would constitute a violation of his constitutional right of confrontation. Following a hearing to determine whether the hearsay statements could be admitted, the circuit court suppressed the hearsay statements of the child complainant to the DCFS investigator. The circuit court found in its February 12, 1991, order that the child’s statements to the investigator failed to demonstrate sufficient particularized guarantees of trustworthiness to be admissible in the face of defendant’s confrontation clause objection.
Section 115 — 10(aX2) of the Code of Criminal Procedure of 1963 (Code) provides that for any prosecution of a sexual offense committed on a child under age 13, the testimony of an out-of-court statement made by the child describing any complaint of such an act or matter or detail pertaining to any act which is an element of the charged offense is admissible as an exception to the hearsay rule. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(aX2).) This section of the Code further provides:
“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. 1989, ch. 38, par. 115 — 10(b).)
The confrontation clause bars the admission of some evidence which would otherwise be admissible under an exception to the hearsay rule. However, the confrontation clause will, where necessary, permit the admission of certain hearsay statements against a defendant, if the prosecution is able to demonstrate the unavailability of the declarant and that his or her statement bears adequate indicia of reliability. Because the evidence did not fall within a firmly rooted hearsay exception, reliability, in the instant case, must be proved by a showing of particularized guarantees of trustworthiness, in order to pass constitutional muster. See Idaho v. Wright (1990), 497 U.S. 805, 814-15, 111 L. Ed. 2d 638, 651-52,110 S. Ct. 3139, 3146.
The particularized guarantees of trustworthiness required for admission under the confrontation clause must be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. (Idaho v. Wright, 497 U.S. at 820, 111 L. Ed. 2d at 655-56, 110 S. Ct. at 3149.) Wright identified several factors which it felt properly related to whether hearsay statements made by a child witness in child sexual abuse cases are reliable; to wit, spontaneity and consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate. The Court emphasized, however, that these factors were not exclusive and declined to endorse a mechanical test for determining “particularized guarantees of trustworthiness”. Wright, 497 U.S. at 821, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150.
The circuit court found that the child’s statements to the investigator were not spontaneous but in response to questioning, and that the allegations of sexual abuse were not consistently repeated by the child. However, with respect to count I of the information, which charged that defendant placed his penis in the mouth of the complainant/child and which was the only count for which the court found probable cause at the preliminary hearing, the child’s statement to the DCFS investigator was consistently repeated from the initial declaration made by the child to his mother on the day of the alleged sexual abuse. The child told both his mother and the investigator that defendant had placed his penis in the child’s mouth. While the child elaborated on that statement in response to further questioning by the investigator, stating that defendant had grabbed his hair and pulled his head down to the defendant’s penis and placed it in his mouth, I believe both such statements were consistent. I therefore believe that this particular finding was against the manifest weight of the evidence.
The court also noted that the investigator used leading questions of the child and found that the investigator had a preconceived idea of what the child’s complaints should be, based on the Child Abuse Hotline report that he had received and was presently investigating. We note that the child’s statement that defendant placed his penis in his mouth was not made in response to a leading question; however, the child’s statement that “water” had come out of defendant’s penis “but it was sticky” was made in response to the leading question, “did anything come out of his pee-pee?” Additionally, the court found that while the child did not use any terminology unexpected of a five-year-old child, no videotape or tape recording was taken of the interview.
The Supreme Court in Wright, however, rejected the dispositive weight placed by the State appellate court therein on the lack of procedural safeguards at the interview (failure to record the interview on videotape, the asking of leading questions and questioning of the child with a preconceived idea of what she should be disclosing), finding that such procedural requirements may in many instances be inappropriate or unnecessary to a determination whether a given statement is sufficiently trustworthy for confrontation clause purposes. The Court noted that the use of leading questions with children, when appropriate, does not necessarily render responses untrustworthy. The Court also noted that a videotape requirement may not be feasible, especially, as in the instant case, where the defendant had not yet been criminally charged. The Court stated that although these procedural guidelines may enhance the reliability of such out-of-court statements it would decline to read into the confrontation clause a preconceived and artificial litmus test for the procedural propriety of professional interviews in which children make hearsay statements against a defendant. Wright, 497 U.S. at 818, 111 L. Ed. 2d at 654, 110 S. Ct. at 3148.
In the instant case, the portions of the child’s statement to the investigator, relevant to count I of the information, involved the allegation of oral sex. I do not believe that the leading question asked with regard to the specifics of the act destroyed the reliability of the child’s response. As the Court noted in Wright, the unifying principle is that the factor relate to whether the child declarant was particularly likely to be telling the truth when the statement was made. (Wright, 497 U.S. at 821, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150.) In spite of the fact that the Supreme Court in Wright affirmed the decision of the appellate court reversing an order which denied suppression of a child’s out-of-court statement, the Court gave approval to two factors with which the trial court supported its determination that the child’s statement should not be suppressed: whether the child had a motive to “make up a story of this nature,” and whether, given the child’s age, the statements are of the type “that one would expect a child to fabricate.” The nature of the child’s response to the leading question asked by the DCFS investigator in the instant case was certainly not a response that a typical five-year-old child was likely to have made up and indeed was consistent with a description of the sexual abuse that was alleged, indicating that the child was likely to be telling the truth when the statement was made. I therefore believe the circuit court placed undue emphasis on the leading question factor.
I also believe that the circuit court’s emphasis on the factor that the investigator had a preconceived idea of what the child should be disclosing places undue restriction on investigators of child sexual abuse claims and, from a practical standpoint, should not be given undue emphasis unless it is clear from the child’s statement that the investigator is “putting words in the child’s mouth.” In this particular case, I did not find Mr. Vieregge to be directing the child’s statement to support the charge of sexual abuse that he was investigating.
The circuit court also found that the child had a motive to fabricate because he sought to defuse the mother’s ire at having found him in the closet, noting also that the mother was allowed to be present when the DCFS investigator interviewed the child. However, there is nothing in the record to support such speculation on the part of the court and nothing in the record to indicate any premature sexual precocity on the part of this young child which might cause the child to tell his mother that defendant had placed his penis in his mouth. We note that the child’s statement to his mother was not suppressed by the court. I believe that the finding of the court with regard to the child’s motive to lie was also not supported by the manifest weight of the evidence.
The circuit court also found that the child’s mental state was not conducive to truth-telling, noting that the child was incompetent to testify precisely because he could not distinguish between truth and falsity. However, the Supreme Court rejected the defendant’s contention in Wright that the child’s out-of-court statements were presumptively unreliable on the ground that the trial court found the child incompetent to testify at trial. As the Court emphasized, the relevant circumstances to be considered include only those that surround the making of the statement and that render the declarant particularly worthy of belief. (Wright, 497 U.S. at 820, 111 L. Ed. 2d at 655-56, 110 S. Ct. at 3149.) While the child may have been unable to answer questions in a courtroom in which the defendant was seated, about a traumatic event which was alleged to have taken place some 12 months earlier, I do not believe the court can reasonably infer from this that at the time the child made the statement to the DCFS investigator, he was not truthfully relating what had happened to him on January 6, 1990. Indeed, by finding that the child’s out-of-court statement to his mother constituted an excited utterance exception to the hearsay rule, the circuit court implicitly found such statement reliable. (See Wright, 497 U.S. at 815, 111 L. Ed. 2d at 652, 110 S. Ct. at 3146 (“Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception”).) I believe the circuit court’s finding that the child’s mental state was not conducive to truth-telling was against the manifest weight of the evidence and based upon an irrelevant factor under the reasoning of Idaho v. Wright.
In my opinion the prosecution did, in fact, demonstrate that the declarant was unavailable, that the evidence showed particularized guarantees of trustworthiness, and accordingly that the declarant’s statement bore adequate indicia of reliability. The prosecution also showed that there was corroborative evidence of the act which was the subject of the statement, by way of admissible evidence of the child’s statement to his mother. Therefore, the portion of the child’s statement to Mr. Vierrege relevant to proof of Count I of the information should not have been suppressed.
The appropriate standard of review of a trial court’s determination pursuant to section 115 — 10 of the Code is whether the ruling was clearly contrary to the manifest weight of the evidence. (People v. Deavers (1991), 220 Ill. App. 3d 1057, 1068, 580 N.E.2d 1367, 1375.) Additionally, a reviewing court will reverse a circuit court’s order suppressing evidence when that ruling is manifestly erroneous. (People v. Smith (1991), 208 Ill. App. 3d 44, 48, 566 N.E.2d 939, 941-42.) I believe that the February 12, 1991, ruling was clearly contrary to the manifest weight of the evidence with regard to the section 115 — 10 determination and manifestly erroneous with regard to the confrontation clause analysis. I would hold that the circuit court improperly suppressed the complainant/child’s statements to the DCFS investigator and accordingly would reverse the February 12, 1991, ruling of the circuit court of Effingham County.