APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. MASSEY, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, Kathleen Wilson, was indicted for the murder of her four-month-old son, Reginald Wilson. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1.) Following a jury trial defendant was found guilty as charged and was sentenced to serve 20 years in the Illinois Department of Corrections. From that judgment defendant now appeals, presenting the following issues for review: (1) whether the trial court properly admitted into evidence a court reporter statement which defendant did not sign; (2) whether certain remarks of the prosecutors during closing argument constituted reversible error; and (3) whether autopsy slides revealing prior injuries to the deceased were properly admitted into evidence. For the reasons hereinafter set forth we affirm the judgment of the circuit court of Cook County.
Chicago police officer Joseph Barrett testified that on January 6, 1978, between 12 and 12:30 p.m. he and his partner, Joseph Bamberger, went to defendant's home in the course of an investigation into the death of her four-month-old son Reginald. The officers found defendant, whom Barrett identified in court, Reginal Silar, *fn1 who was defendant's common-law husband and father of the victim, and several young children. Investigator Barrett informed defendant and Silar that the officers were investigating the death of Reginald Wilson and advised them of their Miranda rights. The officers asked defendant and Silar to accompany them to Area 3 homicide where they were questioned separately. After again advising defendant of her Miranda rights, Barrett confronted her with the results of the autopsy performed on the body of Reginald Wilson and asked her if she knew what had happened to her baby. Defendant denied knowing how her child had been injured. Barrett left the interview room and returned about 45 minutes later (4 p.m.) with investigator Bamberger and Reginal Silar. Silar informed defendant that he (Silar) had told Bamberger what had happened to the baby: "I told him that you hit him." In response to Silar's accusation, defendant said that a couple of mornings earlier she had struck the child on the left side of the head.
Officer William Melaniphy testified that on January 5, 1978, he and his partner Thomas Quinn went to defendant's home and were admitted by Silar. Defendant was lying asleep on the front room couch. Even by grabbing defendant and shaking her, neither Silar nor Melaniphy was able to awaken her. The officers left without speaking to her.
Assistant state's attorney David Weiner testified that on January 6, 1978, he interviewed both Reginal Silar and defendant, whom he identified in court. Weiner advised defendant of her Miranda rights and then took a 20-25 minute oral statement from her. In that statement defendant said that about 1 a.m., on January 3, 1978, she was awakened by her baby's crying. Although she had been drinking earlier in the day, she said she was alert when she woke up. Defendant went into Reginald's room, checked his diaper and then went to get a feeding bottle. When she returned, the child was still crying. Defendant told Weiner that she then struck the baby twice in the head with a partially closed fist. She demonstrated this to Weiner. The child quieted down and she gave him the bottle. Two days later she found that Reginald was not breathing normally. She called for an ambulance and tried to give Reginald artificial respiration. Because of his familiarity with the autopsy report, which indicated that Reginald had on some earlier occasion suffered broken ribs and a broken arm, Weiner asked defendant if Reginald had been injured the previous October. Defendant said that on October 1, 1977, when Reginald was approximately one month old, he rolled off the side of a bed onto the floor and broke his arm. She did not realize that he had been hurt until he became irritable. She and Reginal Silar then took the child to a hospital.
At the conclusion of the oral interview, defendant agreed to give a written court reporter statement. The court reporter, John Akouris, arrived about one hour after Weiner had completed the oral interview. Defense counsel objected to Weiner reading the statement to the jury on the grounds that Weiner did not take or transcribe the statement and that defendant did not sign it. These objections were overruled and Weiner read the statement (People's exhibit No. 1) to the jury.
In her statement defendant said that she had given birth to Reginald Wilson on September 6, 1977. She admitted that she had told Weiner earlier she had struck her child about 1 a.m. Tuesday morning, January 3, 1978, but added that it was accidental. Defendant said she had been drinking and was taking medication the night when her baby's crying awakened her. She was not fully conscious when she went to check on Reginald. Defendant said she examined his diaper, then walked into the bathroom to prepare his bottle. When she returned, Reginald was still crying and she struck him on the left side of the head with a partially closed fist. She said it was unintentional. Reginald continued to cry and defendant hit him again on the left side of the head. The baby calmed down and defendant gave him his bottle. She burped him and then went back to bed. Defendant said that Reginal Silar was out buying cigarettes at that time and her older children were asleep. Defendant said she had no reason to strike Reginald other than the fact that he was crying. Earlier in the day defendant had consumed two glasses of Calvert gin and Coke.
Two days after she had struck her child on January 3, 1978, defendant heard him cry out. "It was a strange kind of cry, and somehow I think I knew that there was something the matter with him. I went into the room and he wasn't breathing." This was the first time since she had hit her baby on January 3 that she noticed anything wrong with him. Defendant tried to revive her baby, and Silar called an ambulance which transported them to Englewood Hospital. There a nurse told defendant her child had died. No one but defendant had struck Reginald on January 3.
Defendant said that on October 1, 1977, when Reginald was about a month old, she picked him up to change his diaper. She laid him on a bed, face down, but he kept turning over. She left him alone momentarily to get a washcloth and when she returned she discovered that Reginald had fallen off the bed and onto the floor. She did not immediately notice anything wrong with Reginald but later in the day she took him first to Englewood Hospital, then to Mary Thompson Hospital. Defendant denied that she was drunk on October 1, 1977, or that she had grabbed her baby by the arm. When Weiner asked defendant how her baby could have fractured his ribs, which defendant said she first knew about when Weiner told her, she said her five-year-old daughter had on two different occasions dropped the baby when she was playing with him. According to defendant, the baby was dropped from a height of approximately three feet. At this point in taking defendant's written statement, Weiner was informed that defense counsel, William Starke, was on the phone and wanted to speak with him immediately. After speaking with counsel, Weiner terminated the interview with defendant. The written statement was not shown to or signed by defendant.
Dr. Mitra Kalelkar testified that on January 6, 1978, she performed an autopsy on Reginald Wilson. The baby weighed 10 pounds. The external examination revealed no visible signs of trauma. In her initial examination, Dr. Kalelkar observed healed rib fractures (calluses) on both sides of Reginald's chest and identified People's exhibits Nos. 2 and 3 as slides of the fractured ribs. The tenth rib on the left side had been broken and the seventh and eighth ribs on the right side.
In her internal examination of the baby's skull, Dr. Kalelkar observed evidence of subgaleal (inner scalp) hemorrhaging in the left parietal region. In the same region she discovered a "T" shaped fracture of the skull, three inches in length and one-half inch in the stem. Examination of the intracranial cavity showed a large amount of partially clotted blood in the subdural space. The pathologist identified People's Exhibit No. 4 as a photograph of the inside wall of the skull (calvarium). Microscopic examination of the brain tissue revealed three layers of bleeding of the dura, the covering of the brain which divides it into two hemispheres. The topmost layer of bleeding was indicative of very recent bleeding, 24 to 48 hours old. The second layer of blood was approximately one week old. The blood cells in this layer had already split and the blood cells were liquified. Finally, there was a third layer of clotted blood indicative of more remote bleeding, at least a month old. In Dr. Kalelkar's opinion, Reginald Wilson died of cranial cerebral injuries, more specifically, a fractured skull and bleeding within the meninges of the brain. Death would not have been instantaneous. Dr. Kalelkar testified that a blow from a partially closed fist could have caused the injuries resulting in Reginald's death. She testified further that an X ray of Reginald's left upper arm revealed a partially healed broken left humerus. She also expressed the opinion that a month-old baby could not roll over from its back onto its stomach or the reverse.
On cross-examination Dr. Kalelkar said the topmost, most recent bleeding could have been sustained from an injury inflicted within a period of up to three days. In answering a hypothetical question propounded by defense counsel, Dr. Kalelkar said that the skull fracture and evidence of recent bleeding could have been caused by the baby falling to a linoleum covered wood floor from a height of over six feet on January 2, 1978, at approximately 9 p.m. The third layer of bleeding could not have been caused by an injury sustained on December 23, 1977, but it could have been caused by one received on October 1, 1977. The second layer of bleeding could have been sustained by an injury of December 23, 1977. The broken bone and ribs were more likely to have been caused in October than in December, but they could have been sustained any time in October or November.
Following Dr. Kalelkar's testimony, the State and defense stipulated that if Dr. Maglani were called to testify he would state that he pronounced Reginald Wilson dead in the emergency room of Englewood Hospital at 4 a.m. on January 5, 1978. They stipulated that defendant was 30 years old and that she had given birth to Reginald on September 6, 1977. Finally, the State and defense stipulated that if John Akouris were called to testify, he would state that he took down the statement defendant gave Weiner in the presence of investigator Melaniphy and that People's exhibit No. 1 truly and accurately reflected the questions asked and the answers given. All exhibits, including the court reporter statement and the X rays of the child's fractured ribs, were admitted into evidence without objection. None was made part of the record on appeal, and the statement was not taken into the jury room during deliberations. With this, the State rested its case-in-chief.
The first witness to testify in the defendant's behalf was Reginal Silar. Silar testified that as of January 5, 1978, he had been living with defendant and her children for two years. Reginald Wilson was the child of defendant and Silar. Around 9 p.m. on January 2, 1978, Silar was playing with Reginald, lifting him up in the air above his head, when the baby slipped out of his hands and hit the linoleum floor. The baby fell on its left side and his head also hit the floor. Silar picked him up and put him to bed. He did not tell defendant what had happened to their child. Silar testified that he had told this to the police on January 6, 1978, at Area 3 Homicide. An officer said he would have to check it out with the pathologist. When he returned, the officer said nothing directly about charging Silar but wrote "Murder One" on a scratch pad. After the officer wrote this, Silar went into defendant's interrogation room and told her to tell the police that she had slapped her baby, Reginald. Silar said that he told defendant he was on parole and that he would be "open game" for the other inmates if he went to the penitentiary on a charge of murdering a child. After defendant agreed to do this, Silar stepped out of the interview room and told the police that defendant had admitted to him that she had slapped her baby. He then repeated this accusation in her presence.
Silar said that on October 1, 1977, he took defendant and Reginald to Mary Thompson Hospital after Reginald had rolled off a bed and hurt his arm. At the hospital a cast was put on the baby's arm. At no time in his relationship with defendant did Silar see her strike Reginald or any of her other children, although on occasion she would hit them with a belt.
Tracee Wilson, defendant's seven-year-old daughter, testified that on December 23, 1977, she heard Reginald crying and went into his room to check on him. When she picked him up from his bed, he slipped through her hands and hit his head on the floor. Tracee told her brother David what had happened and he ran downstairs to get his mother. Tracee said his mother picked the baby off the floor and put him to bed. On cross-examination Tracee demonstrated how she had dropped Reginald. Another of defendant's children, David, testified to substantially the same facts except that he said he and not his mother put the baby back in bed.
Taking the stand in her own behalf, defendant testified that on January 5, 1978, Reginal Silar woke her up and told her something was wrong with her baby, that he had stopped breathing. She told Silar to call the fire department and tried to revive Reginald. The ambulance transported the child to Englewood Hospital where he was pronounced dead. Defendant said that when she was taken in for questioning on January 6 she told investigator Bamberger that her baby had died from sudden infant death syndrome. When the officer confronted her with the results of the autopsy which indicated a skull fracture as the cause of death, defendant said she did not know how that had happened. Nor did she know anything about his broken ribs. She denied having done anything to her baby. After this initial confrontation, Reginal Silar came to her interview room and when no one else was present told her that if she would agree to tell the police that she had slapped the baby a couple of times accidentally, then the police would not charge him with murder. Silar was afraid that his parole would be revoked and that his life would be in danger if other prisoners thought he had killed a baby. Initially defendant refused to go along with this idea but gave her consent when Silar assured her that she would not be charged either. It was then that Silar first told defendant that he had dropped Reginald when he was playing with him. When Silar returned with the police, he told them she had agreed to tell them she had slapped her baby "because I had — this is what had happened."
Defendant testified that on October 1, 1977, she heard Reginald crying. She laid him on his bed and checked his diaper which was wet. While she was in the bathroom getting a washcloth, she heard him crying. When she got back to the room, Reginald was on the floor. She did not immediately notice anything wrong with Reginald but took him to Englewood Hospital when he showed signs of irritation. A nurse at the hospital informed defendant that because of a more pressing emergency she would have to take her child to another hospital. Defendant said she took Reginald to Mary Thompson Hospital. On December 23, 1977, her son David came downstairs and told her that Tracee had dropped the baby. She found him back in bed and checked him. She denied beating or killing her son or striking him at any time.
On cross-examination defendant said that before October 1, 1977, she had never seen her baby roll over in his bed. When she took her child to Mary Thompson Hospital, she spoke with nurses and physicians in the emergency room. Reginald was hospitalized for a week and a half with a broken arm. X rays were taken but none of the staff informed defendant that Reginald had suffered any injuries other than a broken arm. After Tracee dropped Reginald on December 23, 1977, defendant took him to the emergency room at Englewood Hospital for treatment. The hospital personnel told her they could find nothing wrong with Reginald and took no X rays. Defendant could not recall telling Weiner that she had hit Reginald twice or demonstrating how she had struck him. Although Silar had informed defendant that he had dropped, not slapped, the baby, she did not ask him why he asked her to tell the police she had slapped him.
The State called eight witnesses in rebuttal. Dr. Helene Noumann, chief radiologist at Mary Thompson Hospital, testified that she had taken 11 X rays of Reginald Wilson on October 1 and 3, 1977. An X ray of Reginald's left arm revealed a displaced diagonal fracture of the left humerus. X rays of the chest and skull disclosed no fractures or other abnormalities. Dorothy Petrick, a caseworker for the Illinois Department of Children and Family Services, testified that in a conversation with defendant on October 6, 1977, defendant denied that Reginal Silar was living with her. Petrick said that one of defendant's children, David Wilson, told her on January 6, 1978, at Area 3 Homicide that his mother constantly drank and fought with Silar and that they threw things around. Whenever this occurred, all the children except the baby would hide in their bedrooms. David Weiner returned to the stand and testified that Silar had told him that on October 1, 1977, defendant had grabbed her baby when she was drunk. Weiner testified further that Silar had said defendant had been drinking for several days before Reginald was injured in January.
The fourth rebuttal witness was assistant state's attorney Phillip Mitchell. Mitchell testified that he interviewed Silar before Silar took the stand. In their conversation Silar stated that he had dropped the baby not on January 2, 1978, but in December, some time before Christmas, and that he had never dropped him before or after that one occasion. Silar said he was sitting on the edge of a bed and accidentally dropped the baby on the floor. According to Silar, the baby hit its side, not its head, on impact. The police had never threatened to charge him with Reginald's murder. Investigator Melaniphy testified that when he went to defendant's home on January 5, 1978, defendant was asleep and could not be awakened. Silar told Melaniphy that before going to sleep that night defendant had consumed a half quart of vodka and some pills. Dr. Mohini Khurana testified that he was the emergency room physician at Mary Thompson Hospital on October 1, 1977, when defendant and Silar brought Reginald in for treatment. In Khurana's opinion defendant was under ...