1-05-1433

                                                   SECOND DIVISION
                                                   December 5, 2006




No. 1-05-1433

THE PEOPLE OF THE STATE OF ILLINOIS,        )      Appeal from the
                                            )      Circuit Court of
        Plaintiff-Appellee,                 )      Cook County.
                                            )
             v.                             )
                                            )      Honorable
DAVID OEHRKE,                               )      Catherine M.
                                            )      Haberkorn,
        Defendant-Appellant.                )      Judge Presiding.



        PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

        Frieda Oehrke, the defendant’s 91-year-old mother, was

brought to the emergency room at Resurrection Hospital, where she

told a doctor and a nurse she did not know why her son kept

hitting her.      The issue in this case is whether Frieda’s

statements in the emergency room were admissible at the

defendant’s trial.     Because we find the statements were

inadmissible hearsay we reverse the defendant’s aggravated

battery conviction and remand this cause for a new trial.

FACTS

        On June 24, 2000, Frieda was taken by paramedics to the

emergency room at Resurrection Hospital.        She had a one inch

bleeding wound on the top of her head, old bruising on the right

side of her face, and multiple areas of bruising on her body in
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various stages of healing.   Defendant lived with Frieda and was

her sole caregiver.   On August 24, 2000, Frieda died of unrelated

causes.

     Prior to trial, the State filed a motion, pursuant to

section 115-10.3 of the Code of Criminal Procedure of 1963 (Code)

(725 ILCS 5/115-10.3 (West 2000)), to admit Frieda’s out-of-court

statements through her treating doctor and nurse, two police

officers, and an elder abuse investigator.   Section 115-10.3

provides for the admission of certain hearsay statements made by

an elder adult in a prosecution for elder abuse if 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.   725 ILCS 5/115-

10.3 (West 2000).

     Following a hearing on the motion, the trial court

determined the testimony of Dr. Rachael Burke, Nurse William

Babiarz, Officer Paul Zitek, and Detective Terrance Hart was

trustworthy and reliable, and would be allowed as an exception to

the hearsay rule under section 115-10.3.   Before trial, however,

the United States Supreme Court decided Crawford v. Washington,

541 U.S. 36, 53-54, 124 S.Ct. 1354, 1366, 158 L.Ed.2d 177, 194-95

(2004), which held the confrontation clause bars the “admission

of testimonial statements of a witness who did not appear at



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trial unless he was unavailable to testify, and the defendant had

a prior opportunity for cross-examination.”

      Because of Crawford, the State withdrew its motion to admit

the evidence under section 115-10.3.   Instead, it offered only

the statements Frieda made to Dr. Rachel Burke, an emergency room

physician, and Nurse William Babiarz, relying entirely on the

common law hearsay exception that addresses statements made for

the purpose of obtaining medical diagnosis or treatment.   The

trial court, over defense counsel’s hearsay objections, admitted

the statements, holding the common law hearsay exception was

satisfied.

      Dr. Burke and Nurse Babiarz testified they were the first

hospital personnel to treat Frieda at about 10:30 p.m. on June

24.   When Nurse Babiarz and Dr. Burke initially asked Frieda what

happened, she did not respond and moaned in pain.   Defendant was

present in the treatment room.   Frieda was disoriented and did

not know the date.   On cross-examination, Nurse Babiarz said

Frieda told him “she didn’t know what happened” when he first

questioned her.

      Frieda had a large laceration on the top of her head and a

large bruise with a small laceration on her right eyebrow.

Frieda also had bruises on her left upper lip, on top of both of

her shoulders, and above both of her kneecaps.   The numerous



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areas of bruising and the appearance of the lacerations led Dr.

Burke and Nurse Babiarz to believe the injuries did not occur at

the same time.   Dr. Burke noted if a person fell to her knees, it

would not cause the type of bruising Frieda had above her

kneecaps.   Dr. Burke also noted she would not expect a person to

sustain bruises on the top of her shoulders during a fall.

       After Frieda was given medication to raise her blood sugar

and became more alert and cooperative, she told Nurse Babiarz

“she didn’t understand why she [sic] was trying to shut me up,

hitting me with his hand.”   This happened shortly after midnight.

Nurse Babiarz then notified Dr. Burke and the police.   Defendant

was not in the treatment room when Frieda made the statement.

When Dr. Burke and Nurse Babiarz went back into the treatment

room, Frieda again said she did not know why her son kept hitting

her.   On cross-examination, Nurse Babiarz agreed Frieda’s

statement that her son injured her “could have been in response

to [his] question or [his] suggestion that her son did it.”

Frieda’s statements were made 90 minutes after she was admitted

into the hospital, after Dr. Burke treated Frieda’s head wound.

       Dr. Burke said Frieda was “somewhat unreliable and only

partially oriented” during a few of the occasions when she spoke

with Frieda.   Dr. Burke noted, however, that Frieda did not seem

unreliable when she said her son had hit her.   She testified it



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was important for Frieda’s treatment to know how she had been

injured and if she had been injured at the hands of her

caregiver.    This information would affect Dr. Burke’s “final

disposition knowing whether she would be safe to go home or not

or whether they–-she would be cared for at home or not.”

        Defense counsel objected to the admission of the hearsay

statements on the grounds that they did not fit within a

recognized hearsay exception, arguing the statements regarding

the assailant’s identity had nothing to do with her injuries or

treatment.    The State, relying on child sexual abuse cases,

argued an exception applies when the alleged attacker is a family

member because it is necessary to know the identity of the abuser

to prevent future abuse.    The trial court agreed with the State,

noting one of the pertinent factors in the child abuse cases was

that the victim lived with the alleged abuser.    Because defendant

lived with Frieda and was responsible for her caretaking, the

court found the statements relevant to her care and treatment.

        Dr. Mark Dorfman, an emergency room physician at

Resurrection Hospital, testified he treated Frieda on June 24,

2000.    Frieda had a laceration to her scalp, a laceration over

her eyebrow which looked old, swelling around her eye, a small

hemorrhage in her eye, and multiple bruises on her back and

extremities that appeared to be in different stages of healing.



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Dr. Dorfman opined the injuries were not consistent with Frieda

falling out of bed twice on the same day.

        Detective Terrance Hart testified he was assigned to

investigate a possible aggravated battery against Frieda.

Defendant told Detective Hart that Frieda was depressed after she

returned home from a hospital stay and had fallen twice.       After

the second fall, defendant noticed her head was bleeding.

Defendant called Dr. Podgers, who advised him to take his mother

to the hospital.    Defendant told Detective Hart that he was

having difficulty taking care of her and was trying to get a

homemaker to come in and help.

        Defendant showed Detective Hart the bedroom where Frieda

fell.    Detective Hart saw a large pool of blood on a wooden floor

next to the middle of Frieda’s bed.     A picture of the bedroom,

People’s Exhibit Number Nine, depicted a wooden stool at the head

of the bed and blood on the wooden floor.    When asked if the

picture accurately depicted the bedroom, Detective Hart said he

did not recall the stool being there.    He did not document the

stool in his report or have it checked for blood.

        Defendant agreed to return to the Area 5 police station for

further questioning.    During questioning, defendant said his

mother had fallen down twice.    Defendant said Frieda’s injuries

were cause by the falls, not by him hitting her.    After defendant



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was arrested and again read his Miranda rights, defendant

admitted that he put his hand on his mother’s mouth “to shut her

up.”   Defendant said his mother fell and hit her head on a metal

object.    He did not push her the first time she fell.    When

Detective Hart asked defendant what he meant, defendant did not

answer.

       The parties stipulated to the testimony of Kathleen Minogue

and Kevin O’Malley, the Chicago Fire Department paramedics called

to Frieda’s home.   Minogue and O’Malley found Frieda face down on

the floor by the bed in a pool of blood.      There was no object in

the area which Frieda could have struck while falling.

       The defense presented evidence through a series of

stipulations.   Marianne Monroe, a registered nurse, treated

Frieda on June 25, 2000.   When Monroe asked Frieda what happened,

Frieda said “I may have fallen.”       Amy Baldwin, a physical

therapist, and Kathy Kornbluth, an occupational therapist,

treated Frieda on June 28, 2000.       Frieda was oriented only to

herself and did not know the date or time.      Both Baldwin and

Kornbluth concluded Frieda was confused and memory impaired.

       The trial court found defendant guilty of aggravated battery

and sentenced him to three years’ probation.      Defendant appealed.

DECISION

I. Confrontation Clause Violations



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     Defendant, relying on Crawford, contends Frieda’s statements

to Nurse Babiarz and Dr. Burke constituted testimonial evidence.

Defendant contends their admission at trial, in the absence of an

opportunity to cross-examine Frieda, violated his sixth amendment

constitutional right of confrontation.

     We will not consider a constitutional question if the case

can be decided on other grounds.     People v. Mitchell, 155 Ill. 2d

344, 356, 614 N.E.2d 1213 (1993); People v. Dixon, 28 Ill. 2d

122, 125, 190 N.E.2d 793 (1963).     Because we find the trial court

erred in admitting Frieda’s hearsay statements under the medical

diagnosis and/or treatment exception to the hearsay rule, it is

unnecessary for us to consider the Crawford issue presented here.

See Mitchell, 155 Ill. 2d at 356.

II. Hearsay Exception

     Defendant contends the trial court erred in admitting out-

of-court statements Frieda made to Nurse Babiarz and Dr. Burke.

We agree.

     Once the State abandoned its section 115-10.3 motion, it,

and eventually the trial court, relied on the common law hearsay

exception for statements made to medical personnel for purposes

of medical diagnosis and treatment.

     Illinois recognizes the common law exception to the hearsay

rule for statements made by a patient to medical personnel for



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the purpose of medical diagnosis and treatment.    People v. Gant,

58 Ill. 2d 178, 186, 317 N.E.2d 564 (1974); People v. Coleman,

222 Ill. App. 3d 614, 625, 584 N.E.2d 330 (1990).    The exception

encompasses “ ‘statements made to a physician concerning the

cause or the external source of the condition to be treated.’ ”

Coleman, 222 Ill. App. 3d at 625, quoting Gant, 58 Ill. 2d at

186.

       A trial court is vested with discretion in determining

whether the statements made by the victim were “ ‘reasonably

pertinent to the victim’s diagnosis or treatment.’ ”    People v.

Davis, 337 Ill. App. 3d 977, 989-90, 787 N.E.2d 212 (2003),

quoting People v. Williams, 223 Ill. App. 3d 692, 700, 585 N.E.2d

1188 (1992).   Statements identifying the offender, however, are

beyond the scope of the exception.     Davis, 337 Ill. App. 3d at

990; People v. Hudson, 198 Ill. App. 3d 915, 921-22, 556 N.E.2d

640 (1990); People v. Taylor, 153 Ill. App. 3d 710, 721-22, 506

N.E.2d 321 (1987).

       Notwithstanding, the State contends the trial court properly

admitted Frieda’s statements identifying defendant as the

offender because Frieda, a 91-year-old woman, lived with

defendant and depended on his care.    The State contends knowing

the identity of the abuser was crucial to Frieda’s diagnosis and

medical treatment in this case because the medical personnel had



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to know they were not discharging her back into a dangerous

situation.    In support, the State cites two child sexual abuse

cases where section 115-13 of the Code of Criminal Procedure (725

ILCS 5/115-13 (West 2000), the statutory hearsay exception for

statements by victims of sexual offenses to medical personnel,

was extended to include a child victim’s statements identifying

the abuser:    People v. Falaster, 173 Ill. 2d 220, 670 N.E.2d 624

(1996), and People v. Morgan, 259 Ill. App. 3d 770, 631 N.E.2d

1224 (1994).

     Section 115-13 is a codification of the firmly-rooted common

law hearsay exception allowing statements describing medical

history, pain, or sensations for purposes of diagnosis and

treatment.    People v. Roy, 201 Ill. App. 3d 166, 179, 558 N.E.2d

1208 (1990).   “The assumption underlying both section 115-13 and

the common law exception is that the desire for proper diagnosis

or treatment outweighs any motive to testify falsely.”    Roy, 201

Ill. App. 3d at 179.    While section 115-13 is not at issue in

this case, we find the cases discussing the scope of the

statutory hearsay exception help shed light on the scope of the

common law exception.

     In Morgan, the defendant contended the trial court erred in

allowing two doctors to testify regarding his stepson’s

statements identifying him as the abuser.   The court held



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statements by a child abuse victim to a physician during an

examination that the abuser is a member of the victim’s immediate

household are reasonably pertinent to treatment.      Morgan, 259

Ill. App. 3d at 781.   “Because of ‘special problems associated

with intrafamily sexual abuse, *** the identity of the abuser is

often an important element in diagnosing and treating the

victim.’ ”   Morgan, 259 Ill. App. 3d at 781, quoting State v.

Vosika, 83 Or. App. 298, 731 P.2d 449, 452 (1987).

     In Falaster, the defendant contended the trial court erred

in allowing a nurse to testify regarding his eight-year-old

daughter’s statements identifying him as her abuser.      The court

held that, “at least in a family setting, a victim’s

identification of a family member as the offender is closely

related to the victim’s diagnosis and treatment in cases

involving allegations of sexual abuse.”      Falaster, 173 Ill. 2d at

230, citing Morgan, 259 Ill. App. 3d at 781-82.       Defendant was

not a stranger the victim would never see again, he was her

father.   Falaster, 173 Ill. 2d at 230.      The victim’s physical and

emotional health, now and in the future, would be affected by her

relationship with the defendant.       Falaster, 173 Ill. 2d at 230.

That fact was significant in diagnosing and treating the victim

at the time of the abuse and would remain an important fact for

future treatment.   Falaster, 173 Ill. 2d at 230.



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     In Falaster and Morgan the courts recognized intra-family

sexual abuse of a child creates unique psychological harm that

requires special treatment.   See Falaster, 173 Ill. 2d at 230;

Morgan, 259 Ill. App. 3d at 781.       Identification of a family

member as the offender was closely related to the victim’s future

psychological treatment.   See Falaster, 173 Ill. 2d at 230;

Morgan, 259 Ill. App. 3d at 781.

     In this case, Frieda’s statements were made 90 minutes after

she was admitted to the hospital, and after Dr. Burke had

finished treating Frieda’s head wound.      Unlike Falaster and

Morgan, there is no suggestion in the record that Dr. Burke and

Nurse Babiarz questioned Frieda in order to assist in her present

or future psychological treatment.      Instead, Dr. Burke said she

questioned Frieda in order to determine whether it was safe for

her to return home to defendant’s care.

     No Illinois court has extended the medical diagnosis and

treatment hearsay exception to include an adult physical abuse

victim’s statements identifying her attacker.      See People v.

Cassell, 283 Ill. App. 3d 112, 125, 669 N.E.2d 655 (1996)

(statements made by the victim of aggravated criminal sexual

assault that she was dragged from her apartment were admissible;

however, statements relating to the identity of her attacker, her

live-in boyfriend, were not admissible because they were not



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necessary for receipt of proper medical treatment.)   In order to

find a hearsay exception in this case, we would have to shift the

rationale behind the hearsay exception from medical treatment and

diagnosis to prevention of future physical harm.    We decline to

broaden the terms of the medical diagnosis and treatment

exception by judicial fiat, “lest the exception swallow a rule

that has served so well for so long.”   See People v. Johnson,

296 Ill. App. 3d 53, 65-66, 693 N.E.2d 1224 (1998).

     Dr. Burke’s and Nurse Babiarz’s questions were intended to

protect Frieda from returning to an abusive environment, not to

assist in her medical diagnosis and treatment.   Dr. Burke’s

concern for Frieda’s safety was laudable, but concern never has

been held by any Illinois court to support the medical diagnosis

and/or treatment exception to the rule against hearsay.

Therefore, we find the common law exception to the hearsay rule

did not apply to Frieda’s statements.   We find the trial court

erred in admitting the statements at trial.

     We must now address the question of whether the trial

court’s erroneous admission of Frieda’s statements identifying

defendant as her abuser was harmless error.   People v. Cumbee,

366 Ill. App. 3d 476, 500, 851 N.E.2d 934 (2006).   The admission

of the evidence is harmless error if there is no reasonable

probability that the verdict would have been different had the



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hearsay been excluded.   People v. Bridgewater, 259 Ill. App. 3d

344, 349, 631 N.E.2d 779 (1994); People v. Bodoh, 200 Ill. App.

3d 415, 432, 558 N.E.2d 178 (1990); People v. Griggs, 104 Ill.

App. 3d 527, 531, 432 N.E.2d 1176 (1982).

     The record reflects Frieda’s statements to Dr. Burke and

Nurse Babiarz played a crucial role in this trial.   In reaching

its decision, the trial court said: “One of the interesting

things that Dr. Burke stated in her notes that she put quotes

around the portion where the victim said ‘to shut her up.’ And

this is what she said that’s why her son was doing this to her.”

The trial court also said: “I think its significant that after

she was given dextrose, after her son was removed from the room,

that she did say in fact to Dr. Burke and to Nurse Babiarz that

her son was the one who inflicted these injuries.    That the ‘shut

up, shut me up’ is in quotes.”

     While Frieda’s statements that defendant was trying to “shut

her up” were corroborated by defendant’s own statement to

Detective Hart, Frieda’s statements that her son hit her were

uncorroborated.   Since Frieda’s statements that her son hit her

were the foundation of the State’s case, we cannot see how the

erroneous admission of her hearsay statements was harmless error.

     Based on the record, we cannot say “the properly admitted

evidence was so overwhelming, without the erroneously admitted



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hearsay statements, that no fair-minded trier of fact could

reasonably have acquitted the defendant.”   See Bridgewater, 259

Ill. App. 3d at 349.   We find the trial court’s admission and use

of Frieda’s hearsay statements was reversible error.

     We are not making a finding as to defendant’s guilt or

innocence.   Retrial of defendant, without Frieda’s inadmissible

hearsay statements, would not constitute double jeopardy.    See

Johnson, 296 Ill. App. 3d at 66.

CONCLUSION

     We find the trial court erred in admitting Frieda’s out-of-

court statements under the medical diagnosis and treatment

exception to the hearsay rule.    The error warrants a new trial.

     Reversed and remanded.

     HOFFMAN, and HALL, JJ., concur.




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