No. 2-12-1169 Opinion filed June 30, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 08-CF-3355 ) REGINALD KENNEBREW, ) Honorable ) Joseph G. McGraw, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SPENCE delivered the judgment of the court, with opinion. Justice Hutchinson concurred in the judgment and opinion. Justice Schostok specially concurred, with opinion.

OPINION

¶1 Defendant, Reginald Kennebrew, appeals from the first-stage dismissal of his petition for

postconviction relief. In 2009, he was found guilty of two counts of predatory criminal sexual

assault of a child and one count of aggravated criminal sexual abuse, although one of the counts

of predatory criminal sexual assault was later reduced to aggravated criminal sexual abuse,

which is a lesser included offense of predatory criminal sexual assault. People v. Kennebrew,

. He filed a pro se postconviction petition, arguing in part that his appellate

counsel was ineffective. The trial court dismissed his petition, finding it to be frivolous and

patently without merit for failing to raise the gist of a constitutional claim. For the reasons set

forth herein, we affirm.

¶2 I. BACKGROUND

¶3 The State filed a three-count indictment against defendant on August 27, 2008, charging

him with three felony counts. Count I was for predatory criminal sexual assault of a child (720

ILCS 5/12-14.1(a)(1) (West 2008)) for penis-to-anus contact; count II was for predatory criminal

sexual assault of a child for hand-to-vagina contact; and count III was for aggravated criminal

sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2008)) for touching the victim’s buttocks with his

hand for purposes of sexual gratification or arousal. All three counts were for alleged conduct

committed against the complainant, D.C., a girl under the age of 13 when the alleged offenses

took place. The jury found him guilty on all three counts.

¶4 The following proceedings in the trial court are relevant to defendant’s postconviction

petition. The State moved before trial to admit prior statements that D.C. made concerning the

sexual acts that defendant allegedly performed upon her: statements to her stepmother, Cierra;

statements to her cousin, Aaliyah; and statements during a videotaped interview at Carrie Lynn

Children’s Center (Children’s Center). The trial court held that the prior statements were

admissible, on the condition that D.C. would testify to the material subject matter of the

statements at trial.

¶5 At trial, D.C. testified that she had just turned nine years old. When the State asked

whether “anybody ever touched [her] on any part of [her] body that no one should touch,” she

responded “no.” She also responded negatively when asked if she ever told anyone that someone

had touched her where nobody should be touched. The State asked D.C. whether she

remembered going to the Children’s Center about one year earlier, and she said yes. She

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remembered talking to a lady there, but she said that she did not remember whether she told the

lady that someone touched her body inappropriately. When asked more specific questions about

her visit to the Children’s Center, she recalled more facts. She remembered being taken into a

room and asked questions by a lady there. Although she generally did not remember what they

talked about, she remembered that the lady asked what parts of her body no one should touch.

She remembered using a picture of a girl to identify the parts of a girl’s body by circling them,

and she likewise remembered using a picture of a boy for the same purpose. She remembered

the lady asking her if anyone touched her in the places she identified, but she did not remember

how she responded.

¶6 D.C. testified that she did tell Aaliyah that someone touched her someplace that no one

should touch, although she remembered few details of what she told her. She did not remember

telling her that her stepdad touched her between her legs with his “privacy.” She did not

remember Aaliyah asking her if it hurt and telling Aaliyah “sometimes.”

¶7 D.C. further testified that defendant, who was her mother’s long-term, live-in boyfriend,

would apply lotion to her after she took a shower. She said that he would put lotion on her

“everywhere,” later specifying that everywhere included her stomach, legs, butt, and outside her

“private.” However, after D.C. failed to remember what she said about defendant on various

other occasions, despite recalling many facts around those occasions, the court granted the

State’s motion to treat D.C. as a hostile witness. The court noted that D.C. would put her head

down, take long pauses before answering questions, and answer questions reluctantly. When the

State proceeded to examine D.C. as a hostile witness, with leading questions, she mostly

answered “no” when asked if she remembered telling anyone about the alleged acts of sexual

misconduct. She did, however, recall that she told Cierra that one time defendant rubbed his

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“thing” across her bottom while she was on her stomach. When asked again about talking to the

lady at the Children’s Center, she remembered going but did not remember anything she told the

lady about defendant touching her inappropriately. After the State finished questioning D.C., the

defense declined to cross-examine her.

¶8 The State played for the jury a videotaped interview between Marisol Tischman and D.C.

at the Children’s Center on January 16, 2008. D.C. and Tischman talked about the following at

the interview. D.C. told Tischman that, on more than one occasion, defendant put his thumbs

inside her “loosey”—her word for her vagina—and that he rubbed her buttocks and put his

“thing,” i.e., penis, inside her butt. Although she never saw his “thing,” she described it as “wet

and mushy.” She could not recall how many times he put his “thing” in her butt, but it happened

many times. Defendant would do this on the bed in D.C.’s mother’s bedroom. Her mother was

not usually home when this occurred, because she worked nights. Defendant would apply lotion

to D.C. after she showered, having her lie naked on her back and stomach on the bed. He put his

thumb inside her “loosey” when she was on her back, and he put his “thing” inside her butt when

she would lie on her stomach. He would just “stick it in there,” and it felt “not good.” D.C. said

that he wore a T-shirt and underwear and that he would kneel by the bed. He would take his

“thing” out of his underwear, although she never saw it. D.C.’s younger sister, Heaven, was

often playing on the bed when this happened. D.C. was seven years old and in second grade

when defendant would touch her in these ways. Defendant did not touch her after she turned

eight on December 20, 2007, and he no longer lived with her at her mother’s house at the time of

the interview. D.C. said that she told two people that defendant had touched her in places where

she should not be touched: Cierra and Aaliyah.

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¶9 Aaliyah, 13 years old at the time of trial, testified as follows. She last saw D.C. around

Christmas 2007. Once when D.C. stayed overnight, she asked Aaliyah whether Aaliyah’s dad

touched her. Aaliyah said no, and D.C. responded that defendant touched her. Aaliyah asked

how, and D.C. said that he used his “private part” to touch her “down there,” in “her privacy.”

She said that it sometimes hurt. The next day Aaliyah told one of her sisters what D.C. told her.

¶ 10 Cierra testified to the following. She was married to D.C.’s biological father, Marlowe.

During Christmas break in 2007, extending to 2008, D.C. came to spend time with her and

Marlowe in Aurora, Illinois. During D.C.’s visit, she spent the night at Cierra’s sister Tasha’s

house. Shortly after D.C. went back home, Aaliyah, who was Tasha’s daughter, told Cierra what

D.C. had told her. Upon hearing what D.C. had told Aaliyah, Cierra called Marlowe, and he

came home from work immediately. She and Marlowe decided to drive to see D.C. in Rockford

to confirm whether what D.C. had told Aaliyah was true. They arranged to take D.C. and her

siblings to Pizza Hut. At Pizza Hut, Cierra took D.C. to a separate table to ask whether anyone

had ever touched her inappropriately. D.C. initially said no; but after some more talking, she

said that she had told Aaliyah that defendant had touched her in inappropriate places. To

demonstrate where defendant had touched her, she “touch[ed] her vagina area,” and she told

Cierra that he would rub his penis up and down her bottom.

¶ 11 Lori Thompson, a pediatric nurse practitioner who volunteered at the Children’s Center,

performed a physical examination of D.C. and testified to the following. Her examination

revealed a cleft in the hymenal tissue and redness just outside the hymenal area, which were

findings consistent with sexual abuse.

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¶ 12 Defendant testified on his own behalf, denying that he put his fingers in D.C.’s vagina or

his penis in her anus. He did admit to rubbing lotion on her butt, but he denied that he did so for

sexual gratification; he did it because she complained of dry and itchy skin.

¶ 13 During deliberations, the jury sent a note to the court, asking, “We, the jury, would like to

view the video,” in reference to the taped interview between Tischman and D.C. Defendant

objected, arguing that the jury had already seen the video and that sending the video to the jury

room was tantamount to sending D.C. and Tischman to the jury deliberations. The court

overruled the objection, understanding defendant’s position but likening the video to a transcript

and believing that it would assist the jurors in their deliberations.

¶ 14 The jury returned a verdict of guilty on all three counts. The court sentenced defendant

to consecutive terms of 15, 15, and 5 years. 1 A direct appeal followed, in which defendant raised

the following issues: (1) whether his conviction on count I (predatory criminal sexual assault)

should be reversed because the State failed to prove his guilt beyond a reasonable doubt, and (2)

whether section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10

(West 2010)) was unconstitutional because it violated the confrontation clause. We reversed the

conviction on count I, finding insufficient evidence of penile penetration as required for the

conviction of predatory criminal sexual assault. People v. Kennebrew, No. 2-09-0754 (2009)

(unpublished order under Supreme Court Rule 23). The State filed a petition for leave to appeal

to the supreme court, asking it to consider whether the evidence found insufficient to prove

predatory criminal sexual assault was yet sufficient to prove aggravated criminal sexual abuse.

See People v. Kennebrew, No. 112472 (Ill. Sept. 28, 2011). Although the supreme court denied

leave to appeal, in an exercise of its supervisory authority it directed this court to consider

1 The court ordered that defendant serve 85% of each 15-year term.

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whether the evidence was sufficient to prove aggravated criminal sexual abuse.

On remand,

we held that aggravated criminal sexual abuse was a lesser included offense of predatory

criminal sexual assault. People v. Kennebrew,

, ¶ 51. We found the

evidence sufficient to support a conviction of the lesser included offense, and we remanded for

sentencing on that offense.

. The supreme court affirmed our order. Kennebrew,

. Defendant’s resentencing is currently pending.

¶ 15 Defendant filed his postconviction petition on June 26, 2012, and the trial court dismissed

the petition on September 19, 2012, as frivolous and patently without merit. We allowed leave

to file a late notice of appeal on January 16, 2013.

¶ 16 II. ANALYSIS

¶ 17 This appeal asks us to review the dismissal of defendant’s postconviction petition at the

first stage as frivolous and patently without merit. Our review, therefore, is de novo. People v.

Brown,

(2010); People v. Edwards,

(2001).

¶ 18 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) provides

a three-stage process for resolving claims of constitutional violations. People v. Hodges,

(2009). At the first stage, the trial court must review the petition, taking the allegations

as true, and determine whether it “is frivolous or is patently without merit,” dismissing the

petition if it is. 725 ILCS 5/122-2.1(a)(2) (West 2012); see Hodges,

. A petition

is frivolous or patently without merit when the allegations, taken as true and liberally construed,

fail to present the “ ‘gist of a constitutional claim.’ ” Edwards,

(quoting People

v. Gaultney,

(1996)). Presenting a “gist” of a constitutional claim is a low

threshold, and only limited detail is necessary for the petition to pass muster; a pro se defendant

need not plead all “sufficient facts” or legal bases for his claim.

However, the “gist” of a

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constitutional claim is merely what the defendant must describe at the first stage; it is not the

legal standard used to evaluate the petition. Hodges,

. Whether the defendant

presents the “gist” of a constitutional claim is “to be viewed within the framework of the

‘frivolous or *** patently without merit’ test” under section 122-2.1 of the Act.

Accordingly, the petition is to be summarily dismissed as frivolous or patently without merit

“only if the petition has no arguable basis either in law or in fact.”

. “A petition

which lacks an arguable basis either in law or in fact is one which is based on an indisputably

meritless legal theory or a fanciful factual allegation.”

. An example of a meritless legal

theory is one completely contradicted by the record, and a fanciful factual allegation is one that

is “fantastic or delusional.”

.

¶ 19 A. Defendant’s Argument

¶ 20 Turning to defendant’s argument, he contends that he did raise the gist of a constitutional

claim in his postconviction petition when he asserted that his appellate counsel was ineffective

on his direct appeal for not arguing that the trial court should not have admitted the videotape of

the interview between D.C. and Tischman, because it violated the confrontation clause. At trial,

the court asked the parties to look at whether D.C.’s testimony satisfied “the requirements of

[Crawford v. Washington,

(2004),] as a predicate determination,” and defendant

responded that D.C. was unavailable for cross-examination because she testified that she did not

remember making any statements implicating defendant in the charged offenses.

¶ 21 Defendant argues that, although D.C. took the stand at trial, under Crawford she did not

provide “testimony,” because she did not remember any salient details about defendant’s alleged

offenses. For example, defendant asserts, although D.C. remembered talking with a woman at

the Children’s Center, she did not recall telling her that someone touched her where no one

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should; while she remembered the woman showing her pictures of girls and boys to identify

parts of their bodies, she did not remember what she told the woman when asked if anyone

touched her on certain parts of her body; and although she testified that defendant would rub

lotion all over her, she did not remember if she told the woman whether he touched her with any

part of his body other than his hands. Therefore, defendant argues, D.C.’s lack of recall on the

stand as to any facts relevant to the elements of the alleged offenses showed that she was not

“present” in court to “defend or explain” her out-of-court statements.

at 59 n.9.

¶ 22 Defendant relies on People v. Learn,

(2009), to support his

contentions that D.C.’s mere physical presence in court to answer general questions was

insufficient to satisfy section 115-10(b) of the Code (725 ILCS 5/115-10(b) (West 2010) (for the

hearsay exception to apply, either the child must testify at the proceeding or the child must be

unavailable to testify and the statements must be corroborated)) and that her out-of-court

testimonial statements were inadmissible under the confrontation clause. He argues that in Learn

we held that a witness’s mere presence in court to answer general questions without testifying

about the alleged offense was insufficient to render the witness available for cross-examination.

Moreover, defendant argues that we held in Learn that the witness’s out-of-court testimonial

statements violated the confrontation clause because she did not confront the defendant in open

court and accuse him of any wrongdoing—which he contends is analogous to this case because

in open court D.C. did not accuse defendant of any wrongdoing. Defendant contends that he did

not cross-examine D.C. because she did not answer any questions on direct about defendant’s

alleged misconduct and she therefore did not “defend or explain” the accusations against

defendant that she made outside of court.

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¶ 23 Defendant maintains that the videotape of D.C.’s interview by Tischman played a critical

role in the jury’s finding of guilt. The court permitted the jury to view the video not only during

trial but also during its deliberations, where the jury could watch any portion of the tape as many

times as desired. He argues that his claim that appellate counsel was ineffective for failing to

argue that the tape’s admission violated the confrontation clause had an arguable basis in law and

fact and that thus we should reverse the dismissal of his petition and remand so that his petition

may proceed to the second stage of postconviction proceedings.

¶ 24 B. State’s Argument

¶ 25 The State responds as follows. It is well established that a witness’s refusal or inability to

recall the events detailed in a prior statement does not render the witness “unavailable” for

purposes of the confrontation clause. See, e.g., United States v. Owens,

(1988) (confrontation clause guarantees only opportunity for cross-examination); People v.

Flores,

(1989) (“[A] gap in the witness’[s] recollection concerning the content

of a prior statement does not necessarily preclude an opportunity for effective cross-

examination.”). With the exception of Learn, 2 the bulk of memory-loss cases reiterate the same

point, that the confrontation clause is not necessarily violated when a witness does not recall a

prior statement. In other words, the confrontation clause does not require that a child sex-offense

victim recall all the details of his or her prior statement in order to be considered “available” for

cross-examination. The key inquiry for determining whether a declarant was available for cross-

examination is whether the declarant was present in court and willing to answer counsel’s

questions. In re Brandon P.,

. Here, D.C. was available for

cross-examination because she appeared in court and answered questions asked of her; it was

2 As we explain later in this opinion, we do not characterize Learn as a memory-loss case.

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defendant’s decision to decline to cross-examine her. See People v. Garcia-Cordova,

. Therefore, the application of the confrontation clause to D.C.’s prior

statements was a “constitutional nonevent.”

¶ 26 The State also takes exception to defendant’s citation to Crawford,

n.9, to

support his argument that D.C.’s recollection of her prior statements was insufficient to enable

her to “ ‘defend or explain’ *** her out-of-court statements,” because she did not remember

accusing defendant of any wrongdoing. The full quote is: “The [confrontation] [c]lause does not

bar admission of a statement so long as the declarant is present at trial to defend or explain it.”

The State asserts that, read in context, it is the declarant’s presence at trial that is of

paramount concern—not necessarily his or her ability to “defend or explain” any prior

statements. The State also quotes from Crawford, which states, two sentences earlier, “[W]hen

the declarant appears for cross-examination at trial, the [c]onfrontation [c]lause places no

constraints at all on the use of his prior testimonial statements.”

Because D.C. appeared at

defendant’s trial and willingly answered questions, the State argues, the confrontation clause

required nothing more.

¶ 27 The State next addresses Learn. It disputes that Learn is good law and moreover finds it

distinguishable from the case at hand. The State contends that D.C. did not manifest an

unwillingness to answer questions like the witness in Learn; rather, she testified that she could

not remember the conversations she was asked about, which did not make her unavailable as a

witness.

¶ 28 As to Learn being bad law, the State argues that no published decision has cited Learn

approvingly. Moreover, the State contends that Learn stands opposed to the weight of authority

on the subject of the availability of witnesses at trial. See, e.g., Owens,

;

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Delaware v. Fensterer,

(1985) (the confrontation clause guarantees opportunity

to cross; a lapse of witness’s memory does not necessarily deny that right); People v. Sutton,

(2009) (inability of declarant to remember and therefore explain prior, out-of-

court statements did not, under Owens, violate the confrontation clause); People v. Redd,

(1990) (“As long as the declarant is actually testifying as a witness and is subject to

full and effective cross-examination, then the confrontation clause is not violated by admitting

the out-of-court statement of the declarant.”); Flores,

(same); People v.

Sundling,

(because declarant was present for cross-

examination and answered questions asked of him, admission of prior statements did not violate

confrontation clause); Garcia-Cordova,

; People v.

Martin,

(2011) (distinguishing Learn; where a witness is competent to

testify and answer substantive questions, even though with gaps of memory, the confrontation

clause is not violated); People v. Bryant,

(2009) (child sexual-abuse

victim “appeared” at trial despite apparent unwillingness to testify on direct examination as to

the alleged sexual act, because she was present for cross-examination and answered defense

counsel’s questions); People v. Bueno,

(2005) (witness was

available for cross-examination when he remembered giving “statements” to police, despite not

recalling substance of the statements, and he answered questions on cross-examination).

¶ 29 The State concludes that, because D.C. appeared at trial and willingly answered

questions, she was available as a witness for purposes of the confrontation clause. Thus,

appellate counsel was not ineffective for choosing not to argue that the videotape’s admission

violated the confrontation clause, because no basis for this argument existed in law or fact, and

therefore the dismissal of the postconviction petition should be affirmed.

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¶ 30 C. Defendant’s Reply

¶ 31 Defendant replies that he claims not that he could not cross-examine D.C. but rather that,

because she did not give any accusatory testimony at trial, she was unavailable for cross-

examination. Some accusatory testimony was necessary for her to be “available.” Defendant

also contends that D.C. did not willingly answer questions. Instead, as the trial court noted, she

“put her head down and appeared reluctant to answer questions.” Due to D.C.’s reluctance to

answer questions and her inability to provide accusatory testimony, she did not meet the

availability requirement of the confrontation clause. See Fensterer,

(some

restrictions on the right to cross-examination so emasculate the right as to violate the

confrontation clause).

¶ 32 D. Our Resolution

¶ 33 We agree with the State that the trial court properly dismissed defendant’s postconviction

petition claiming ineffective assistance of appellate counsel, because no basis in law supported

the argument that the admission of D.C.’s videotaped statements violated the confrontation

clause. We set forth our reasoning as follows.

¶ 34 The confrontation clause of both our state and federal constitutions guarantees a criminal

defendant the right to confront his or her accusers. U.S. Const., amend. VI (“In all criminal

prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against

him ***.”); Ill. Const. 1970, art. I, § 8 (“In criminal prosecutions, the accused shall have the right

*** to be confronted with the witnesses against him or her ***.”). The confrontation clause bars

the admission of a declarant’s testimonial statements if: (1) the declarant is unavailable at trial,

and (2) the defendant did not have a prior opportunity to cross-examine the declarant. Crawford,

. The parties do not debate whether D.C.’s statements in the videotape were

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testimonial, but we find that they were: the statements were not for the primary purpose of

treatment, medical or otherwise, but rather were for purposes of establishing whether someone

had abused her—and thus providing information for a potential, future prosecution. In re

Rolandis G.,

(2008) (child’s statements to nurse advocate at Children’s

Center were testimonial because primary purpose was to gather information for potential, future

prosecution); see Michigan v. Bryant,

, __,

(2011)

(“Objectively ascertaining the primary purpose of the interrogation by examining the statements

and actions of all participants is *** the approach most consistent with our past holdings

[regarding testimonial statements].”). Nor is there debate whether D.C. was previously available

for cross-examination (she was not). Therefore, the only confrontation clause issue is whether

D.C. was available at trial.

¶ 35 A witness’s inability at trial to remember or recall events does not automatically render

the witness unavailable under the confrontation clause. See Owens,

(confrontation clause guarantees only opportunity to cross-examine, not that the cross-

examination is effective); Flores,

(“[A] gap in the witness’[s] recollection

concerning the content of a prior statement does not necessarily preclude an opportunity for

effective cross-examination.”). It is true that the key inquiry into the availability of a witness

against the defendant is whether the witness was present in court and willing to answer counsel’s

questions. In re Brandon P.,

. However, defendant’s reliance on

Learn for the proposition that “a witness’s mere presence in court to answer general questions

without testifying about the alleged offense” is misplaced. Learn,

. Learn

was not a memory-loss case, as we have here. In Learn the child-witness did not testify on direct

examination that she did not know or did not remember; instead she offered no testimony

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whatsoever concerning the offense. See id. at 897 (child would cry when asked even limited

questions; the State stopped direct examination after only preliminary questions; and cross-

examination revealed only that she knew that the defendant was her uncle and that she had not

lied to her parents about her uncle). We find a significant difference between Learn, where the

witness answered nothing more than preliminary questions, 3 and this case, where D.C. either did

not remember or did not know the answers to some, but not all, questions posed to her about the

alleged offenses. Defendants such as defendant here should not rely on Learn beyond the

situation that Learn addressed: the situation where a child-witness, though physically present at

trial, failed to provide any testimony regarding the alleged offenses—and, importantly, “any

testimony” may include testimony to a lack of memory.

¶ 36 Moreover, the holding in Learn that defendant relies on was based not on a confrontation

clause analysis, but rather on a section 115-10 analysis. The full quote from Learn that

defendant relies on is as follows:

“We cannot conclude that a witness’s mere presence in court to answer general

questions without testifying about the alleged offense is sufficient to qualify as testimony

pursuant to section 115-10 [of the Code]. *** While our analysis is not a confrontation

clause analysis, the Supreme Court’s definition of appearance is equally applicable here.”

(Emphases added.) Id. at 899.

¶ 37 The Learn court addressed whether the child-witness provided “testimony” under section

115-10(b)(2)(A) of the Code. Id. at 898. Section 115-10(b)(2)(A) allows, inter alia, the

3 By answers to preliminary questions, we mean ones such as in Learn, where the child

stated, for example, where she lived, who she lived with, who her aunt and uncle were, that her

grandmother’s house had a basement, etc.

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admission of a child’s hearsay statements complaining of an alleged sexual offense or detailing

any act that is an element of a sexual offense, on condition that the child testifies at the

proceeding. 725 ILCS 5/115-10(b)(2)(A) (West 2010). The Learn court found that the child-

witness did not testify for purposes of section 115-10(b)(2)(A), reasoning that she did not testify

at all about the charge in the case and barely acknowledged the people and places about which

she was questioned. Learn,

. She was unable to answer a single

question about the alleged sexual abuse, and therefore the Learn court found that, because none

of her testimony was “accusatory,” there was nothing for the defendant to cross-examine her

about.

.

¶ 38 We make a critical distinction between whether a witness provided “testimony” under

section 115-10(b)(2)(A) and whether a witness was “available” for purposes of the confrontation

clause. 4 Learn endeavored to examine the meaning of “ ‘testifies at the proceeding’ ” under

section 115-10(b)(2)(A).

at 900 (quoting 725 ILCS 5/115-10(b)(2)(A) (West 2012)). It

found that the statute did “not merely require that the child be ‘available’ to testify or be sworn in

and available for cross-examination.”

Impliedly, “testimony” required more than

“availability.” Here, however, defendant argues the issue of availability under the confrontation

clause. Whether a witness’s testimony at trial was sufficiently “accusatory” is the question

Learn sought to address under section 115-10(b)(2)(A); it is not the question we ask here, to

determine whether a witness was available for purposes of the confrontation clause. Rather, we

turn to the cases that the State cites in its brief addressing the availability of a witness, both in

4 While the special concurrence argues that Learn was wrongly decided, we note that this

case is readily distinguishable from Learn and therefore do not address the soundness of Learn

one way or another.

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general and when, as here, the witness has gaps in memory. See Owens,

;

Fensterer,

; Sutton,

; Redd,

; Flores,

; Sundling,

; Garcia-Cordova,

; Martin,

; Bryant,

; Bueno,

. Generally, if a witness physically appears, takes the stand under oath,

and willingly answers counsel’s questions, that witness is “available” for cross-examination for

purposes of the confrontation clause. See Bryant,

. Accordingly, we

find Learn readily distinguishable and proceed with our analysis by considering cases that

address the issue of availability under the confrontation clause. 5

5 We are mindful that, after this case was argued, our supreme court decided In re

Brandon P.,

, in which the court held that a child was unavailable as a witness

within the context of section 115-10. Citing People v. Stechly,

(2007), the

court found that the child was unavailable based upon her youth and fear, as she “could barely

answer the trial court’s preliminary questions, and then completely froze when the State

attempted to begin its direct examination of her.” In re Brandon P.

.

We distinguish this case from In re Brandon P., in that D.C. testified at trial that

defendant rubbed lotion on her while she was naked, including on her “private,” that she told

Cierra that defendant rubbed his “thing” across her butt, and that she told Aaliyah that someone

had touched her inappropriately. While she did not remember all of the answers she gave to the

woman at the Children’s Center when asked about someone inappropriately touching her, she did

remember going to the Children’s Center, talking to the woman, and using pictures to identify

the body parts of boys and girls.

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¶ 39 Here, the State asked D.C. about events related to the alleged sexual acts. D.C. answered

that defendant would put lotion on her while she was naked and would rub it on her “private.”

Despite initially answering “no” to whether anyone touched her inappropriately, she testified to

telling Cierra that defendant had rubbed his “thing” across her butt. She also testified to telling

Aaliyah that someone had touched her inappropriately. She testified that she did not remember

her answer when asked by the woman at the Children’s Center whether someone had touched her

inappropriately, but she did remember going to the Children’s Center, talking with a woman

there, and using pictures to identify body parts of boys and girls.

¶ 40 Defendant’s decision not to cross-examine D.C. did not mean that he did not have the

opportunity to cross-examine her, which is what the confrontation clause guarantees. See

Martin,

. The State directly asked her about what happened with

defendant in the bedroom after her showers, whether anyone touched her inappropriately, and

what she told the three aforementioned people, and she responded to all of the State’s questions.

The State asked D.C. about the material facts it needed to establish in its case, and she responded

to the questions. Importantly, she was present at trial, willing to answer questions, and could

have answered defense counsel’s questions on any of these matters had counsel chosen to cross-

examine her. See Martin,

(lack of memory of previous events does not

violate confrontation clause when witness appears at trial, answers questions, and is cross-

examined); Bryant,

(despite her apparent unwillingness to testify on

direct examination to alleged sexual act, child appeared for purposes of confrontation clause

when she was present for cross-examination but defendant did not question her about the alleged

sexual act); People v. Leonard,

(2009) (witness is generally considered

subject to cross-examination when he or she takes the stand and willingly answers questions);

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see also People v. Miles,

(2004) (when declarant appears for cross-

examination, the confrontation clause does not restrict the use of prior testimonial statements).

¶ 41 D.C. did, in fact, respond to all questions posed to her by counsel, albeit at times

responding that she did not know or did not remember. Our supreme court has noted that, while

it is “not unsympathetic to the State’s concern that child abuse victims are often unavailable to

testify because of their tender years,” “[w]e may not abridge constitutional guarantees simply

because they are a hindrance to the prosecution of child sexual abuse crimes.” In re Rolandis G.,

. Whereas the State might find that the confrontation clause occasionally hinders

a child-sexual-abuse prosecution, the defense might find at times, as here, that the confrontation

clause does not alleviate all challenges for an effective cross-examination of a child witness. As

we have noted, it is well established that the confrontation clause generally guarantees not that

cross-examination is effective in whatever way the defense might wish, only that the defense has

an opportunity for effective cross-examination. E.g., Fensterer,

. Here, because

D.C. was physically present and willingly answered counsel’s questions, she was available as a

witness for purposes of the confrontation clause, despite her gaps in memory.

¶ 42 Turning back to the postconviction petition itself, although a claim of ineffective

assistance of counsel is cognizable in a petition under the Act (People v. Haynes,

(2000)), 6 defendant’s claim here lacks an arguable basis in law. For the aforementioned

6 Claims of ineffective assistance of appellate counsel are evaluated under the same two-

prong test set forth in Strickland v. Washington,

(1984). Haynes outlined how the

test applies to claims of ineffective assistance of appellate counsel:

“A defendant who contends that appellate counsel rendered ineffective

assistance, e.g., by failing to argue an issue, must show that the failure to raise that issue

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reasons, the trial court did not violate defendant’s right to confront D.C., because the record

shows that she was available as a witness at trial. Therefore, appellate counsel’s failure to raise

the issue on direct appeal was not objectively unreasonable and did not prejudice defendant, and

the trial court was correct to dismiss the petition at the first stage.

¶ 43 III. CONCLUSION

¶ 44 Defendant did not raise the gist of a constitutional claim of ineffective assistance of

appellate counsel. There was no basis in law to argue that the admission of D.C.’s videotaped

statements violated the confrontation clause, because the record clearly demonstrated that D.C.

was available as a witness for cross-examination at trial, her gaps in memory notwithstanding.

Our opinion in Learn does not control here, as it is distinguishable, and we instead apply the

well-established precedent that, if a declarant is physically present at trial and willing to answer

questions, the confrontation clause does not preclude or restrict the use of hearsay evidence.

Accordingly, the trial court properly dismissed defendant’s postconviction petition at the first

stage as frivolous and patently without merit, and we affirm the judgment of the circuit court of

Winnebago County.

was objectively unreasonable and that the decision prejudiced the defendant. Appellate

counsel is not obligated to brief every conceivable issue on appeal, and it is not

incompetence of counsel to refrain from raising issues which, in his or her judgment, are

without merit, unless counsel’s appraisal of the merits is patently wrong. Accordingly,

unless the underlying issues are meritorious, defendant has suffered no prejudice from

counsel’s failure to raise them on appeal.” (Internal quotation marks omitted.) Haynes,

.

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¶ 45 Affirmed.

¶ 46 JUSTICE SCHOSTOK, specially concurring.

¶ 47 People v. Learn has been described as “a case that much of the Illinois judiciary has

distanced itself from” and that “no court has cited approvingly.” In re Brandon P.,

. The reason why our courts so abhor that case is obvious: Learn was

wrongly decided. See Robert J. Steigmann, When Hearsay Testimony is a Nonevent Under the

Confrontation Clause,

, 308 (2008) (repudiating Learn because it rejects 20 years

of Illinois jurisprudence construing and upholding the admissibility of prior inconsistent

statements under section 115-10.1). 7 Rather than trying to parse the language in Learn and

distinguish it from the instant case, this court should acknowledge that our decision in Learn was

erroneous and thereby excuse the State from having to distinguish Learn in every future case that

involves facts similar or nearly identical to those in Learn.

¶ 48 In Learn, the four-year-old alleged victim made certain statements to her father and two

police officers, indicating that the defendant had sexually abused her. Learn,

. Following a section 115-10 hearing, the trial court determined that the victim’s father and

7 This court originally issued its opinion in Learn on March 2, 2007. People v. Learn,

(2007). Our supreme court instructed this court to vacate its judgment and

reconsider the case in light of In re Rolandis G.,

(2008). See People v. Learn,

(2009) (nonprecedential supervisory order on denial of petition for leave to appeal).

Upon reconsideration, this court reached the same decision in 2009 as it had in 2007. Justice

Steigmann’s critique of Learn is based on this court’s 2007 decision. However, as this court’s

analysis in its 2007 decision is substantively the same as in its 2009 decision, it is apparent that

Justice Steigmann’s critique of Learn applies equally to the 2009 decision.

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the two police officers could testify at trial as to the victim’s statements, provided that the victim

testified at trial and was subject to cross-examination. Id. at 894. At trial, the victim appeared

and was subject to cross-examination. Id. at 897. However, after she began crying, the State

stopped questioning her. Id. at 896. Defense counsel then asked the victim five questions. Id. at

897. Defense counsel elicited from the victim that she had never told her father anything about

the defendant. Id.

¶ 49 On appeal, the defendant argued that the trial court erred in admitting the victim’s out-of-

court statements as substantive evidence at trial. Id. The Learn court agreed, determining that

the statements were improperly admitted under both section 115-10 and Crawford because the

victim did not testify at trial. Id. at 898-902. The Learn court found that, because the alleged

victim had answered only general questions without testifying about the alleged offense, she had

not really testified at trial. Id. at 898. In support of its determination, the Learn court relied on

language in Crawford that a declarant appears for purposes of the confrontation clause where

“ ‘the declarant is present in court to defend or explain’ his out-of-court statement.” (Emphasis in

original.) Id. at 899 (quoting Crawford,

n.9).

¶ 50 The Learn court took the above passage from Crawford out of context, which is evident

from a reading of the entire relevant section:

“Finally, we reiterate that, 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. See California v. Green,

(1970). It is

therefore irrelevant that the reliability of some out-of-court statements ‘ “cannot be

replicated, even if the declarant testifies to the same matters in court.” ’ Post, at 74

(quoting United States v. Inadi,

(1986)). The Clause does not bar

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admission of a statement so long as the declarant is present at trial to defend or explain it.

(The Clause also does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted. See Tennessee v. Street,

(1985)).” Crawford,

n.9.

¶ 51 In context, it is apparent that the Supreme Court is referring to being present to “defend

or explain” an out-of-court statement as synonymous with being subject to cross-examination.

See

This conclusion is consistent with prior Supreme Court decisions that were neither

overruled nor called into question by Crawford. See People v. Bryant,

(2009) (citing Delaware v. Fensterer,

(1985), and United States v. Owens,

(1988)). In Fensterer, at issue was whether an expert’s opinion testimony should be

excluded because, when he testified about evidence that was important in linking the defendant

to the murder, the expert was unable to recall the theory upon which his opinion was based. In

other terms, the expert could neither defend nor explain the basis of his opinion. The Delaware

Supreme Court held that, absent an acknowledgment by the expert of the basis of his opinion,

“ ‘defense counsel’s cross-examination of the [witness] was nothing more than an exercise in

futility.’ ” Fensterer,

(quoting Fensterer v. State,

(Del.

1985)). In reversing, the Supreme Court stated: “Generally speaking, the [c]onfrontation

[c]lause guarantees an opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense might wish.” (Emphasis in

original.) Id. at 20.

¶ 52 In Owens, the victim testified that he remembered identifying the defendant as his

assailant during an interview with an FBI agent. However, at trial, the victim testified that he

could not remember seeing his assailant at the time of the attack. The Supreme Court held that

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“neither the [c]onfrontation [c]lause nor Federal Rule of Evidence 802 is violated by admission

of an identification statement of a witness who is unable, because of a memory loss, to testify

concerning the basis for the identification.” Owens,

. The Supreme Court

determined that the defendant’s rights under the confrontation clause were not violated, because

“the traditional protections of the oath, cross-examination, and opportunity for the jury to

observe the witness’ demeanor satisfy the constitutional requirements.”

. The Supreme

Court additionally stated that it did not believe that a “constitutional line drawn by the

[c]onfrontation [c]lause falls between a forgetful witness’ live testimony that he once believed

this defendant to be the perpetrator of the crime, and the introduction of the witness’ earlier

statement to that effect.”

¶ 53 In People v. Flores,

(1989), the Illinois Supreme Court adopted the

analysis set forth in Fensterer and Owens. See Bryant,

. In Flores, the

supreme court rejected the defendant’s argument that a witness’s professed memory loss as to the

content of a conversation he had with the defendant deprived defense counsel of an opportunity

to cross-examine the witness concerning the conversation. Flores,

. In People v.

Redd,

(1990), relying on Owens, the supreme court stated: “As long as the

[hearsay] declarant is actually testifying as a witness and is subject to full and effective cross-

examination, then the confrontation clause is not violated by admitting the out-of-court statement

of the declarant.” Redd,

.

¶ 54 Prior to the Learn court’s decision, the Appellate Court of Illinois had uniformly held

that, if a witness appears for cross-examination at the defendant’s trial, the confrontation clause

does not bar the admission of the witness’s hearsay statements. See Bryant,

(listing 24 cases that were decided over a 20-year period that are inconsistent with the

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rationale set forth in Learn). Furthermore, as noted above, no court has subsequently adopted the

Learn court’s holding, including this court. See People v. Garcia-Cordova,

(“where the declarant appears for cross-examination at trial, the confrontation

clause places no constraints at all on the use of his prior testimonial statements”); People v.

Sundling,

(explaining that supreme court did not express

approval of the entire analysis in Learn merely because it denied State’s petition for leave to

appeal in that case).

¶ 55 Furthermore, not only is the Learn decision contrary to the precedent of the United States

Supreme Court, the Illinois Supreme Court, and the Illinois Appellate Court in terms of its

analysis of the confrontation clause, the Learn decision also overlooks a fundamental aspect of

cross-examination. By emphasizing that a witness must “defend or explain” a prior statement on

cross-examination, the Learn court failed to consider another crucial aspect of cross-

examination: a witness may deny having made the prior statement. See People v. Miller,

(2005) (citing Michael H. Graham, Cleary & Graham’s Handbook of Illinois

Evidence § 611.11, at 446 (8th ed. 2004) (setting forth that cross-examination can be used to

elicit facts from the witness that are favorable to the defendant’s case or modify the witness’s

testimony regarding any unfavorable versions of disputed facts given on direct examination)).

When a witness denies having made a previous statement, a defendant can then use that

testimony to bolster his defense and set up an impeachment for anyone who claims that the

witness had made a statement implicating the defendant in the commission of a crime. See id. at

75.

¶ 56 Beyond its misinterpretation of Crawford and the other applicable law, the Learn court’s

analysis needs to be rejected also because it is contrary to our supreme court’s most recent

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pronouncement on the admissibility of evidence pursuant to section 115-10. See In re Brandon

P.,

. In Brandon P., our supreme court emphasized that a trial court’s ruling on

the admissibility of such evidence should not be disturbed unless it demonstrates a clear abuse of

discretion.

¶ 45 (citing People v. Stechly,

(2007)). The supreme court

then criticized the appellate court for conducting its own de novo review of the record as to the

admissibility of the witness’s testimony rather than reviewing the trial court’s decision for an

abuse of discretion.

The Learn court employed the very same standard of review that was

criticized in Brandon P. See Learn,

(explaining that it had decided the

issue “on statutory grounds”).

¶ 57 It is apparent that, if the Learn court had not taken the language in Crawford out of

context and had employed the proper standard of review, the outcome in that case would have

been different. In Learn, as noted, the victim testified at trial and was subject to cross-

examination.

. This is all that Crawford and section 115-10 required for admission of

her statements to her father and the police officers. See Bryant,

;

People v. Monroe,

(2006); Miller,

. Thus, the

trial court in Learn did not abuse its discretion in determining that the statements at issue were

admissible. As the Learn court’s interpretation of Crawford and section 115-10 is contrary to

that of every other Illinois court that has considered the issue, the time has come for this court to

acknowledge that Learn was wrongly decided.

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