People v. Hatfield, 2-86-0407

• Citation: 514 N.E.2d 572,112 Ill.Dec. 909,161 Ill.App.3d 401
• Decision Date: 07 October 1987
• Docket Number: No. 2-86-0407,2-86-0407
• Parties: , 112 Ill.Dec. 909 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Kenneth HATFIELD, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 572

514 N.E.2d 572

161 Ill.App.3d 401, 112 Ill.Dec. 909

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Kenneth HATFIELD, Defendant-Appellee.

No. 2-86-0407.

Appellate Court of Illinois Second District.

Oct. 7, 1987.

Philip L. DiMarzio, DeKalb Co. State's Atty., Sycamore, William L. Browers, Deputy Director, Virginia M. Ashley, Lori J. Miller, State's Attys. Appellate Prosecutor, Elgin, for the People.

Law Offices of John F. Donahue, Glenn M. Sowa, John F. Donahue, Oak Brook, for Kenneth Hatfield.

Presiding Justice LINDBERG delivered the opinion of the court:

The State appeals the judgment of the circuit court of DeKalb County granting defendant's motion in limine to exclude a four-year-old nontestifying child-declarant's out-of-court statements. The State has filed a certificate that the exclusion of the evidence substantially impairs prosecution of the case. (107 Ill.2d R. 604(a)(1).) In a motion to dismiss this appeal, defendant challenges the right of the State to appeal the pretrial exclusion of evidence.

Defendant, Kenneth D. Hatfield, was charged with two counts of aggravated criminal sexual assault in violation of section 12-14(b)(1) of the Criminal Code of 1961 (Ill.Rev.Stat.1985, ch. 38, par. 12-14(b)(1)) in that he knowingly committed an act of sexual penetration upon Daina Hatfield by placing his finger and mouth upon her vagina on or about August 6, 1985. Defendant filed pretrial motions to quash arrest and suppress evidence and a motion contending that the four-year-old child-declarant was not competent to testify. The motions to quash and suppress were denied. The parties stipulated that the child-declarant was not competent to testify. The instant State appeal concerns the trial court's pretrial order denying the child-declarant's out-of-court statements admission into evidence.

During several hearings before three different judges of the circuit court of DeKalb County, the testimony of several witnesses was received in response to defendant's pretrial motions. The trial judge who entered the instant order of suppression acknowledged his lack of awareness of the testimony previously adduced before the other judges. Therefore, a summary of the evidence presented at the several hearings is appropriate for a background for our determination.

Evidence was presented that defendant and Debra Ames are the parents of the alleged victim Daina. The three lived together although defendant and Debra were not married. Defendant went to work at about 7:30 a.m. the morning of August 6, 1985. Debra, thereafter, at about 8 a.m., awakened Daina and began washing her. It is at this time that some of the statements in question were allegedly made. Debra testified that Daina told Debra not to touch her down there because she was sore. Debra asked why, and Daina said, "Daddy is fooling with me." Debra asked what Daina meant. Debra testified that Daina showed her by parting her legs and putting her fingers on her vagina and rubbing it. Debra testified that Daina stated that this is what Daddy does and added, "you know it." Debra testified that she, Debra, got mad and responded that she did not know it. She testified that she had no prior knowledge of the act described by Daina. She then called the police.

The record also discloses that Daina was interviewed at the offices of the Department of Children and Family Services (DCFS) beginning at about 3:30 p.m. later the same day, August 6, 1985. William St. Arnold, a social worker with the agency, conducted the interview, although he did not testify at any of the pretrial hearings. Sheriff's Deputy Rogers testified to what Daina told St. Arnold in his presence but outside the presence of her mother Debra. Daina stated her daddy had touched her that morning and pointed to her vagina and also to the vagina of an anatomically correct female doll, referring to the area as her "butt."

The deputy also testified that the arrest of defendant was predicated upon what Daina had said and demonstrated to her mother Debra and to social worker St. Arnold. No medical examination was made.

The record discloses that defendant testified. He acknowledged that in oral statements to Detective Kennett, a written summary of which he read and signed, he had touched Daina's vagina in a game he played with her wherein he tickled her around her vagina during the game. He stated his fingertip may have entered Daina's vagina during this game. He told the detective that his finger may have entered Daina's anal passage and his lips may have touched her vagina while blowing on it.

Detective Kennett testified that defendant stated that he did not perform the acts for sexual gratification. Defendant asked Kennett that the written summation include defendant's request for assistance for his problem with his daughter.

The record also contains testimony from a mutual acquaintance of Daina's mother and father. The acquaintance, Sharon Spohr, testified that Debra told her she was going to leave defendant in such a way as she could keep Daina.

There was also evidence that Daina had been undergoing treatment for a vaginal infection. It appears the condition had existed since birth.

Defendant has raised by a motion to dismiss this appeal the question of whether the State may interlocutorily appeal the granting of a pretrial motion to suppress or exclude the hearsay statements of a child-declarant who, the parties agree, is too young to testify competently. The State has filed a certificate of impairment as required by Supreme Court Rule 604(a)(1) (107 Ill.2d R. 604(a)(1)) and People v. Young (1980), 82 Ill.2d 234, 45 Ill.Dec. 150, 412 N.E.2d 501. The issue raised by the State's appeal is whether the trial court erred in granting defendant's pretrial motion in limine to suppress or exclude from evidence the statements of the child-declarant to her mother and later to a social worker concerning the conduct of defendant during that morning.

We deny defendant's motion to dismiss this interlocutory appeal under Supreme Court Rule 604(a)(1) (107 Ill.2d R. 604(a)(1)). The pretrial suppression order need not be premised on evidence illegally obtained; rather, it may concern evidentiary rulings regarding hearsay and relevancy where the prosecutor certifies to the trial court, as was done here, that the suppression substantially impairs the prosecution.

Some commentators have noted correctly that the provisions of Rule 604(a)(1) continue to divide the districts of the appellate court. (Ill.Ann.Stat., ch. 110A, par. 604(a)(1), Supplement to Historical and Practice Notes, at 2 (Smith-Hurd Supp.1987).) However, we believe that as to the authority of the State to appeal, pretrial, the granting of a pretrial motion, the effect of which is to preclude the admission of any evidence at the trial, the law is settled in favor of appealability. We emphasize that we are concerned here with only pretrial appeals of pretrial evidentiary rulings. In particular, we do not address the issues raised in cases addressing State-appealability of preclusive orders granted after trial has begun, that is, mid-trial orders. See, e.g., People v. Flatt (1980), 82 Ill.2d 250, 45 Ill.Dec. 158, 412 N.E.2d 509; People v. Smith (1987), 151 Ill.App.3d 922, 104 Ill.Dec. 869, 503 N.E.2d 584; People v. Bradley (1984), 129 Ill.App.3d 177, 84 Ill.Dec. 520, 472 N.E.2d 480; People v. Dorsey (1984), 129 Ill.App.3d 128, 84 Ill.Dec. 351, 472 N.E.2d 101 (mid-trial State appeal from pretrial order granting defendant's motion was an untimely appeal under Rule 604(a)(1)); People v. Davidson (1983), 116 Ill.App.3d 164, 71 Ill.Dec. 824, 451 N.E.2d 978; People v. Johnson (1983), 113 Ill.App.3d 367, 69 Ill.Dec. 285, 447 N.E.2d 502; People v. Tomasello (1981), 98 Ill.App.3d 588, 54 Ill.Dec. 35, 424 N.E.2d 785; People v. Van De Rostyne (1976), 63 Ill.2d 364, 349 N.E.2d 16, overruled in part by People v. Young (1980), 82 Ill.2d 234, 45 Ill.Dec. 150, 412 N.E.2d 501.

In People v. Carlton (1983), 98 Ill.2d 187, 74 Ill.Dec. 492, 455 N.E.2d 1385, our supreme court clarified its holding in People v. Young (1980), 82 Ill.2d 234, 45 Ill.Dec. 150, 412 N.E.2d 501, which was filed the same day as People v. Flatt (1980), 82 Ill.2d 250, 45 Ill.Dec. 158, 412 N.E.2d 509. Flatt, as previously noted, dealt with State-appealability of mid-trial orders under Supreme Court Rule 604(a)(1) (107 Ill.2d R. 604(a)(1)). The court in Carlton observed that the sole question presented by Carlton was whether the State was required to file a certificate of impairment in every interlocutory appeal of a pretrial order suppressing evidence under Rule 604(a)(1). In arriving at its holding, the Carlton court explained its holding in Young by observing that in Young it said:

"We hold, therefore, that Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State's ability to prosecute the case." (People v. Young (1980), 82 Ill.2d 234, 247, 45 Ill.Dec. 150, 412 N.E.2d 501.)

The Carlton court explained that Young established a procedural device for the application of Rule 604(a)(1). The focus of the analysis of the issue of the State's authority to appeal a particular pretrial order precluding the admission of evidence is on the "effect of the suppression order and not on the nature of the evidence suppressed." (Emphasis added.) (People v. Carlton (1983), 98 Ill.2d 187, 191, 74 Ill.Dec. 492, 455 N.E.2d 1385.) The court held that the certification of impairment must be filed in every case in which the State seeks to appeal from a pretrial order suppressing evidence. Summarizing, the court said that appeals are permitted and certification is required when the suppression order substantially impairs the ability to prosecute the case "without fitting those orders into neatly compartmentalized classifications." 98 Ill.2d 187, 193, 74...