APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
LEIFHEIT, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, Norman L. Platter, was charged by indictment with the offense of involuntary manslaughter (Ill. Rev. Stat. 1977, ch. 38, par. 9-3). The indictment alleged that on February 2, 1979, defendant recklessly performed an act likely to cause death or great bodily harm, in that he struck Kristie Hubbard in the stomach, causing the rupture of her duodenum and her subsequent death. The victim was the three-year-old daughter of his fiancee, Kathy Hubbard, who was living with defendant in his parents' home at the time. Defendant admitted striking the victim, but contended that the child sustained the injuries resulting in her death on February 1, 1979, when she accidentally collided with a heavy wooden coffee table at a friend's home. The jury found defendant guilty of the charged offense, and the trial court entered judgment on the verdict. Defendant was sentenced to serve a term of three years' imprisonment, and he appeals. The following issues are presented for review: (1) whether defendant was proved guilty of involuntary manslaughter beyond a reasonable doubt; (2) whether the trial court erred in admitting opinion testimony by an expert witness that the victim was suffering from "battered child syndrome"; (3) whether the trial court erred in refusing to give defendant's tendered instruction on the doctrine of in loco parentis; (4) whether the trial court properly admitted into evidence testimony regarding defendant's prior acts of abuse toward the victim; (5) whether the trial court erred in denying defendant's motion to exclude the testimony of Michael Denz; (6) whether defendant was prejudiced by the State's reference in its opening statement to testimony which it was later precluded from presenting at trial; (7) whether the trial court erred in permitting the prosecutor to ask a defense witness if the defendant had a violent and uncontrollable temper; and (8) whether the prosecutor's closing argument was improper and prejudicial.
For the reasons hereinafter stated, we affirm.
THE STATE'S CASE-IN-CHIEF
The prosecution presented the following evidence at trial. Doren Johnson, a paramedic with the Carpentersville Fire Department, testified that he and Deputy Chief Vandemeir, firefighter Steve Glumm, and fireman trainee Dan Zarcord responded to a call for an ambulance at 107 Pecos Circle, Carpentersville, at about 10:14 p.m., February 2, 1979. When they arrived at the residence, later identified to them as the Platter home, he noticed a child lying upon the floor in an apparently lifeless condition. Johnson and the other officers testified that, upon examination of the child, they found no vital life signs.
They immediately undertook life-saving techniques in the Platter home and continued them en route to Sherman Hospital in Elgin, where they arrived at 10:35 p.m. The paramedics administered cardiopulmonary resuscitation (CPR), which is cardiac massage plus mouth-to-mouth resuscitation, and also administered electrical heart defibrillation, in their efforts to revive the child.
Upon arrival at Sherman Hospital, the child was attended by two physicians, Dr. Charles Cavallo and Dr. Richard Nervis. Dr. Cavallo testified that the child was essentially dead on arrival. He and Dr. Nervis performed numerous emergency procedures in an effort to save the child's life, but there was never any real change in the child's clinical condition from the time she arrived in the emergency room. After about an hour of treatment, he pronounced her dead.
On cross-examination, Dr. Cavallo testified that he determined from an X ray taken during resuscitation that the child suffered a massive bowel perforation. According to Dr. Cavallo, the injury suffered by the child in this case was a "very unusual, very massive injury." In his opinion, duodenal injuries can manifest themselves several days after injury. However, a duodenal injury with a complete transection will not manifest itself several days later, but would become obvious fairly soon, within 12 hours. In his opinion, a child whose duodenum was severed, and held together by only a couple of strands of tissue, would be moribund in 12 to 16 hours, if the injury was a free perforation into the peritoneal cavity. If it was assumed that there was a small pre-existing tear in the duodenum, a "tremendous force" would nevertheless have been necessary to cause a total transection later.
Dr. Nervis, a pediatrician and lawyer, testified that he found numerous bruises on the child's body. In his opinion, these bruises were not accidentally caused and fell within the range of "Battered Child Syndrome."
The prosecution also presented the testimony of Dr. William Goodfellow, who had performed the autopsy on the child. Dr. Goodfellow stated the child's height as 36 inches and her weight as 20 pounds. Upon examining the external surface of the child's body, he noted numerous contusion features (bruises) on the following parts of her body: right lower quadrant of abdomen, periumbilical zone, left upper lateral abdominal zone, left hand, right elbow, two at left upper buttocks zone, four to five at lumbar area of the back, and multiple bruises at right upper temporal parietal zone.
Dr. Goodfellow also testified regarding his internal examination of the child. He stated that opening the abdominal cavity caused the release of free air, and revealed the presence of approximately 1 1/2 liters of partly blood-stained greenish-brown fluid containing some particulate matter. This fluid was present in the peritoneal cavity as a result of the total transection of the child's duodenum.
Dr. Goodfellow described the duodenum, the first portion of the small bowel, as a quite "rigid muscular layerous zone" — essentially a tube composed of an inside wall with epithelial features, a muscular component, and connective tissue features. In a child, the duodenum is approximately four inches long, located in the upper half of the abdomen, and is described as having four parts.
Dr. Goodfellow described the symptoms which would be exhibited by a child who was suffering from a transected duodenum. He stated that a blow to the front of the abdomen would press the duodenum against the lumbar vertebrae causing it to tear. Fluids which would ordinarily pass through the duodenum on their journey through the intestinal tract would flow instead into the abdominal cavity. The doctor described this as a "devastating insult" to the system, and a "very serious phenomenon."
This condition would not go without complaint from the child, and the distress would be noticeable to others. The child would exhibit nausea and vomiting, would complain of pain, and would exhibit a disinclination to move around. This would result eventually in prostration, a semicomatose state, shock, and death. After the initial injury and pain, the child might experience a quiescence of pain, not lasting more than one to two hours after the injury, and then would exhibit more symptomatology as the child's condition steadily declined.
Dr. Goodfellow further testified that in this child, the fluid had not been present in the peritoneal cavity for more than 14 hours as it could be determined by the extent of the peritonitis. If more than 24 hours had elapsed, a more prominent degree of peritonitis would be present, but here the peritonitis was focal and early.
The margins of the tear in the duodenum were characterized by mechanical distortion of some pre-existing injury, weakness, or disease. A microscopic study of the tissue from the margins of the tear showed the tear to be less than 14 hours old. The minimal number of white cells in the area indicated that it was a matter of hours from the initial injury until the child's death and that during that time she was entering into shock. The presence of some particulate matter in the fluid in the abdominal cavity was consistent with the child having consumed a minimal amount of food.
The internal examination also revealed to Dr. Goodfellow two tears in the mesentery, an organ which supplies blood to the bowel. The mesentery contains a large number of blood vessels and these tears were completely through the mesentery, not at the root, but in a more proximal part (in the area of the periumbilical zone) early in the course of the mesentery where the vascular channels are large. This, according to the doctor's testimony, would explain why the fluid in the abdominal cavity was significantly bloody. Dr. Goodfellow stated that the same blunt trauma that caused the transection of the child's duodenum caused these tears in the mesentery.
Dr. Goodfellow testified that a child who had incurred tears in the mesentery would experience pain, weakness, and lethargy. Eventually, the child would only be comfortable lying down because of the effect of blood returning to the heart, and would eventually become semicomatose. This would occur because when the mesentery is torn, blood escapes rapidly causing, in Dr. Goodfellow's words, an "embarrassment" to the cardiovascular system. The combination of this injury with the transection of the duodenum would result in the child's demise in less than 14 hours.
Dr. Goodfellow also stated that this was more than a retro-peritoneal injury; it involved damage to the peritoneum in front of the injuries, and allowed the fluid to flow into the peritoneum. He concluded that these internal injuries were the result of a blunt trauma caused by a great mechanical force which came from a fairly direct front to back source, the area of the blow corresponding with the bruise found on the child's body in the periumbilical zone. The time elapsed between injury and death was stated to have been no more than 14 hours.
Officers Gary Ford, Salvator Macaluso, and Douglas Blank of the Carpentersville police department testified that on February 7, 1979, defendant voluntarily made a statement to police, which was admitted into evidence at trial. In this statement, defendant admitted striking the child in the stomach area with the back of his hand on February 1, 1979, the day of the child's death. He told police that he had told the child to pick up her toys, but she cried instead. He then tried to "crack her on the ass," believing that the child was about to walk away from him, but struck her in the area of her abdomen.
The State also introduced evidence to demonstrate that Norman Platter did or may have acted abusively toward the child on four other occasions. First, Michael Denz, 16-year-old next-door neighbor to the Platters, testified that in July 1978 he saw defendant come out of the Platter house, pick up the child by one arm off the front steps and spank her three times and tell her she was not to play on the stairs. The child cried. On direct examination, the witness demonstrated a blow of great force as that employed by defendant. On cross-examination, however, the witness admitted that when interviewed by defense counsel before trial, he had not shown him the heavier blow used in the courtroom and stated that he had misled defense counsel.
Coletta Regan, a neighbor across the street from Platters, testified that in July 1978, when defendant was washing the car in the Platter driveway, he called out to the child, who was running down the sidewalk. The witness testified that defendant followed the child, grabbed her by the arm, dragged her back to the driveway and slapped her across the face with "a lot of force." Mrs. Regan did not report the incident when it occurred.
Debra Holder, cousin of the child's mother, testified that on August 19, 1978, defendant, Kristie and Kristie's mother came to visit her. Kristie's face was bruised and her mouth swollen. Holder inquired what happened, and, she testified, Norman stated he had struck the child for not eating properly.
Carol Insco, sister of Kristie's mother, testified that on August 4, 1978, defendant struck Kristie with force on the left side of the face, leaving a bruise. This testimony concluded the State's case-in-chief.
Defense witnesses testified that on the day before the child's death (i.e., on February 1, 1979), her mother took her for a doctor's appointment in Elgin. The mother and child were driven to the doctor's office by Philip Deitz, age 37, a resident of Elgin. Deitz testified that he picked up the child and her mother from the doctor visit about 11 a.m., and later took them to his residence in Elgin, arriving at about 12:45 p.m. Inside his home he, Kristie, and her mother remained in the living room. He said that the child began energetically running around, was told to sit down several times and then started running around a coffee table, circularly. This coffee table, introduced in evidence as an exhibit at trial, was made of very heavy hardwood, about 40 inches long and 28 inches wide. It was 14 inches high, an estimated 60 pounds in weight and rested in place in Deitz' living room on shag carpet, where the legs indented and the table stood rigid.
Deitz testified that he and the child's mother told the child to sit down and stop running around this coffee table, but the child kept running around it in a counterclockwise direction and, when "rounding" one corner of the table, the child lost her footing between the couch and the corner of the table. Deitz said he observed this action with his peripheral vision. First he heard the contact and then he saw the child falling. He and the child's mother got up immediately and went to the child, who was then lying on her side on the floor. Deitz and the child's mother picked the child up and pulled her pants down to look at her, since it sounded as if the child had hit her hipbone. There appeared to be no damage, but the child was knocked out of breath. Thereafter the child sat quietly for about five minutes. She then got up and began to run around again. Deitz said the child did not run directly into the corner of the table but rather hit the corner when she was "rounding" it and lost her footing. Deitz did not see exactly what part of the child's body made contact with the table, having said both that the child struck her left hipbone, or left hipbone area, on the table.
Mrs. Platter testified at trial that on the evening of February 1, 1979, the child was home at the Platter residence. She was irritable and did not want to eat. She was left in the care of defendant's father, Carl Platter, whom the child called "grandpa." While Carl Platter watched television, he observed the child to be rather quiet, not running around. The child sat by him most of the evening.
On February 2, 1979, the child awoke at about 8:15 a.m. instead of her usual 7 a.m. She was hungry and ate. She declined the invitation of defendant's mother to go shopping with her and to take the child's mother to work. About 10:30 a.m. that morning, Mrs. Platter and Kathy Hubbard left the house and the child was left alone in the Platter home with defendant.
Mrs. Platter testified that, when she arrived home at about 2 p.m., defendant told her that the child had become sick. Mrs. Platter had an opportunity to observe the child, who was lying in bed in her nightgown. She didn't have a fever, but since she had vomited earlier, she was given only beverages to drink.
The child continued to show symptoms of illness throughout the afternoon and evening of February 2, 1979. Defendant and his fiancee later went to the drugstore and obtained Emetrol. The doctor was called, and he approved of the Emetrol. About 10 p.m. Mrs. Platter and the child's mother (who came home from work about 4:30 p.m.) checked on the child, who then looked pale and limp. They called defendant, who discovered the child was not breathing. Defendant administered mouth-to-mouth resuscitation to the child until the Carpentersville paramedics, called by Mrs. Platter, arrived. Mrs. Platter testified that the child's stomach, normal before defendant began ...