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People v. Nyberg

NOVEMBER 21, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding. MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Defendant, Barbara Sue Nyberg, was indicted for two counts of murder in connection with the death of her 4 1/2-month-old son, Ronald Nyberg. (Ill. Rev. Stat. 1971, ch. 38, par. 9-1(a).) She waived her right to a jury trial, and received a bench trial in the circuit court of Cook County. After approximately 2 days of trial during which time the prosecution presented a major portion of its case-in-chief, defendant entered a negotiated plea of guilty to voluntary manslaughter and was sentenced, according to the plea agreement, to a term of 5 to 20 years in the penitentiary. She appeals from the judgment which was entered on the plea.

On appeal, defendant contends that (1) the trial court erred in accepting a plea of guilty when defendant did not make an unequivocal statement of guilt, (2) there was no factual basis for the plea, and (3) the trial judge erred in that he did not personally inform the defendant of and did not determine that she understood the nature of the charge.

We reverse and remand with directions.

Defendant's contentions must be evaluated in the context of the relatively extensive proceedings conducted before she entered her plea of guilty. In addition to the trial testimony, the court heard testimony during two hearings on defendant's pretrial motions to suppress evidence. The trial court also included in the record three reports which related to defendant's psychological condition and medical history. We have scrutinized the record carefully in order to evaluate defendant's claim that there was no factual basis for the plea.

Defendant was a 22-year-old married woman who had a history of epilepsy. On June 3, 1971, at 7:30 A.M., Steve Tomaskovic, her 17-year-old boyfriend, telephoned the defendant, whom he had known for approximately one year. He finished drinking a bottle of wine, which had about "four fingers" left in it, and arrived at her home at about 8 A.M. Defendant, the deceased, her 4 1/2-month-old son, and another child, aged 18 months, resided at the home of defendant's parents. After his arrival defendant had two drinks of an alcoholic beverage known as Brass Monkey.

Defendant prepared a bottle for the deceased, after which she and her boyfriend went into an upstairs bedroom where defendant put the bottle next to the head of the infant in the crib. Tomaskovic testified at trial that at this time he did not see the baby move. On cross-examination it was brought out that on a previous occasion he may have said that he did see the baby move, although he denied making such a response.

Defendant and her boyfriend then went into a downstairs bedroom where they had sexual intercourse. After they had finished Tomaskovic went to the washroom for about 5 minutes. During a second act of intercourse, the 18-month-old child broke a flower pot, glasses, and some dishes. They got up, got dressed, and Tomaskovic went to the bathroom again. Defendant went upstairs to the infant's bedroom and, according to her testimony, found that the infant was not breathing and in her opinion was unconscious.

When Tomaskovic came out of the bathroom he saw defendant coming down the stairs. According to his testimony, she leaned over, put her hands on her face, said she felt faint, and went outside. Tomaskovic cleaned up the mess that the older child had made in the kitchen. According to defendant's testimony she called Doris Stewart, who called the police. Also, at that time she saw a friend of her brother outside and called to him for help. They went upstairs and defendant tried to resuscitate the infant. Shortly thereafter, an ambulance and the police arrived.

Tomaskovic testified that at no time that morning did he see the defendant strike the infant or hear her say that she was going to strike him.

Two police officers investigated the infant's death. Officers Wagner and Kosinski arrived at defendant's residence at 1:18 P.M. They went upstairs, felt the baby's pulse, and noticed that his body was stiff and had a very pale color. Both observed two marks on the baby's head which Officer Wagner described as resembling scars, and Officer Kosinski described as lines, like a welt. One mark went from one ear to the other ear across the back of his head. The other mark was just above one of the ears. Officer Wagner noticed no blood or other marks on the baby's body.

At the hospital the baby was pronounced dead at 1:50 P.M. According to Officer Kosinski a doctor said the baby had been dead for approximately 5 to 11 hours. It was the stipulated testimony of defendant's father that the infant was alive at 5:30 A.M. or 6 A.M. that morning.

The police took defendant to the Tinley Park police station. During questioning she related the events of the morning of June 3, 1971. She was awakened at about 4 A.M. or 4:30 A.M. by the baby's crying. She fed the baby. She woke up again at 5:30 A.M. in order to wake up her father and sister. At 8 A.M. she got up again to feed the baby. At 9 A.M. her other son woke up. At 12 noon she gave the baby his medicine and he appeared to be all right. At 12:30 P.M. she went to feed him, noticed that he was not breathing, and called a friend for assistance. During this narrative defendant did not mention Tomaskovic.

The police then transported defendant to the courthouse at Midlothian, Illinois. Her father was present at this time. According to defendant she was told at the Tinley Park police station that a lawyer would be appointed for her, but none was appointed. Instead, she met Assistant State's Attorney McNulty, whom she thought, according to her testimony, was her appointed counsel. She was again questioned and gave substantially the same account of the events of the morning of June 3, 1971. Still, she did not mention Tomaskovic.

At about 4 P.M. the police transported defendant back to the Tinley Park police station. At about this time, according to the testimony of Detective Deahl of the Tinley Park police, he was informed that the baby's death was "unnatural." Defendant's father gave him permission to search the house and he directed other police officers to remove the crib from the bedroom. The police recovered a crib which had a small rod attached to it.

At the Tinley Park police station defendant made a statement which indicated that she still believed her baby was alive. During a questioning session, for the first time she reluctantly mentioned her involvement with Steve Tomaskovic. According to Officer Kosinski, who was present, she said that Tomaskovic came over to the house at about 7:40 A.M. At about noon he asked her to go outside to see if a friend of his was there. After being outside for about 5 minutes, she returned and heard some noise coming from upstairs which sounded like the baby's crib moving. Ten minutes later Tomaskovic came downstairs and told her that the baby was asleep. Fifteen minutes later he left.

At this point in the questioning the assistant State's Attorney directed the police to pick up Tomaskovic as a suspect. At the police station defendant and Tomaskovic confronted each other but their stories were conflicting. After Tomaskovic left the room defendant said "I might as well get it over with now. I did it. I killed my baby." Soon thereafter, she retracted these remarks, stating that the only reason she said she killed her baby was to try to "get Steve off the hook." During defendant's second visit to the Tinley Park police station, the police took her statement in which she said that Tomaskovic was the father of her deceased child. Tomaskovic testified that while defendant was pregnant with the deceased she told him that he was the father, but he never believed her. He did testify that he had been having sexual intercourse with defendant for approximately 1 year preceding June 3, 1971.

On the following day, June 4, 1971, the police took defendant to the Bedford Park police station to take a lie detector test. After the test was completed, defendant was handcuffed and placed in a squad car. Detective Deahl informed her that she was under arrest for murder. She responded "So what? I did it." According to the testimony of Matron O'Brien, ...

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