Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. A.F. WELLS, Judge, presiding. Affirmed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendant was convicted by a jury of the involuntary manslaughter *fn1 of his three-year-old stepdaughter, Linda Hernandez, and sentenced to a term of not less than nine years nor more than ten years in the Illinois State Penitentiary. He appealed to the Supreme Court on four grounds:
1. The crime was not proved beyond a reasonable doubt.
2. The trial court improperly limited defendant's cross-examination of the People's witnesses and did not maintain sufficient control of the trial to insure a fair trial.
3. The court made prejudicial remarks and did not maintain an impartial attitude.
4. The State's Attorney made improper arguments to the jury.
Finding no substantial constitutional question, the Supreme Court transferred consideration of these contentions to this court.
At the trial, there was unrebutted medical evidence that Linda Hernandez died of severe brain damage. There was evidence that Linda had four distinct injuries in the scalp area alone, a massive bruise on her forehead, bruises on each cheek and a large bruise on the chin and neck. Linda sustained numerous injuries to all parts of her body. One doctor testified:
". . . So the head revealed over the forehead and upper facial aspect multiple contusions or bruises, the largest of these was at the midline extending from about the base of the nose and into the hairline of the child. There were two others in the cheek area over the cheekbone, as we call it here and one rather extensive one on the lower jawbone extending almost to the neck. Then the upper extremities revealed, as well as the lower, many bruises or contusions. That is the arms, the forearms, the thighs, and the lower legs. These were distinctive on both anterior surfaces. Some were on the anterior surface, lateral, medial, and inner surface. There was also on the lower back a very extensive bruise or contusion. This involved the mid part of the lower back extending over both buttocks, but more particularly on the right side in through the inner aspect of the upper thighs and up into the groin area. In addition, some of these bruises also showed what we call an abrasion, that is superficial loss of skin. Some of these were almost like blotches or patches over the buttocks, and over the back, lower back, there were several long, linear laceration-like type of abrasions. That is linear loss of skin. Over the back of the right lower leg there was one of these still crusted or dried blood that coagulated or dried on the laceration."
There was unrebutted medical testimony that all of these injuries occurred no more than three or four days prior to Linda's death on December 19.
Jennie Szymanski, a neighbor, testified that on December 11, 1963, while in the basement, directly below the Winstead apartment, she heard a loud slapping sound. She investigated through a hole in the door separating the Winstead apartment from a vacant store in the front of the building. The hole was three feet off the ground and an inch wide and through it she saw Linda Hernandez come "flying" out of the bathroom. She then heard defendant's wife Theresa shout, "Don't throw her like that. You will pull her sock [sic] out of her arm." On December 18, while in her apartment directly above the Winsteads', Mrs. Szymanski heard a loud banging and the sound of Linda crying. Upon investigation she saw Linda lying on the living room floor and defendant standing over her kicking her about the face and body. She went back to her apartment to call the police and then returned to view defendant administering a few more kicks. On December 19 Mrs. Szymanski heard Linda crying and three or four loud banging sounds against the floor and wall, then the sound of something being thrown to the floor and the crying stopped. Defendant's wife Theresa shouted, "What did you do to her?"
Mary Lou Fentress testified that on December 19 at 7:30 a.m. Theresa came to her apartment shouting, "Mother! Mother! Linda is dying"; that she took the child to her apartment; that her nephew called the police who took Linda to the hospital where she subsequently died. Mrs. Fentress stated that she had often been a baby-sitter for Linda; that while baby-sitting on November 16 defendant had beaten the child with his hand; that only Mrs. Fentress' resistance had prevented his using a belt; that she had seen defendant beat Linda with a belt in October; that on December 10 she noticed that Linda was severely beaten from the waist down.
At the hospital the police questioned defendant and his wife as to how Linda incurred her injuries. They both stated that the injuries were the result of a fall from bed. When Officer Hoffheimer pointed out that such extensive injuries could not result from such a fall defendant admitted having beaten Linda with a belt the night before.
At the trial defendant and his wife testified that some of Linda's injuries were sustained when she fell out of bed and that the large lump on the forehead was sustained when she ran into a radiator. They further testified that Linda was a very clumsy child and that other injuries were sustained during her frequent fallings and bumping into things.
Upon cross-examination defendant's wife testified that Linda fell from her own bed on the morning of the 19th while defendant testified that the fall occurred while Linda was sleeping with him and his wife on a prior morning.
Defendant's wife testified as follows:
"A. I said she I said I heard a noise in the room, she might have fallen off and she could have gotten up again and without letting me know because I heard a noise in the bedroom.
"Q. But when you came in the room Linda was in convulsions on the bed?
"Q. You never saw Linda fall off a bed, is that correct?
"A. No, I just heard the noise in the room.
"Q. Did you run in immediately when you heard the noise?
"Q. So it wasn't a very loud noise that you heard, is that correct?
"Q. But you didn't run into the room?
"A. I figured she had picked herself up."
Defendant's own cross-examination was as follows:
"Q. I am talking about the 17th, 18th and 19th. In the course of caring for the child did Linda Hernandez fall out of bed?