APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
COUSINS, JR., Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 8, 1981.
After a jury trial, defendant was convicted of the involuntary manslaughter of his 5-month-old son, Mark, and sentenced to a term of four years. On appeal, he contends that: (1) his guilt was not established beyond a reasonable doubt; (2) the trial court erred (a) in the admission of his written statement, (b) in improperly failing to instruct the jury, (c) in permitting testimony concerning his alleged past abuse of Mark, (d) in admitting a "highly inflammatory" photograph of Mark taken after his death; and (3) he was prejudiced by comments of the prosecutor in closing argument.
Defendant moved in limine to bar the testimony of Rosario Yncour, the mother of his children, concerning his alleged past abuse of Mark. The court precluded testimony concerning an incident in which defendant allegedly picked Mark up by the neck and threw him on a couch, but ruled that Yncour could testify to other past acts of abuse.
Yncour then testified at trial that defendant was reading in the living room when she put Mark in his crib about 9:30 p.m. Awakening at about 4 a.m., she saw defendant sitting in the living room with Mark on his lap and she returned Mark to his crib. Later, defendant brought Mark into their bedroom and she once again put him back in his crib. About 8 a.m. Mark refused to take his bottle and Yncour noticed that his lips were hard, cold and purple inside, and that part of his eyeballs were more turned upward to his head. When she said she was going to take the child to the doctor, defendant told her to wait and he blocked the door as she attempted to leave. However, when defendant went into the bedroom, Yncour left the apartment with Mark and walked to a clinic. When she could not get immediate care, she decided to leave, and defendant, who had been waiting outside the clinic, drove them to Norwegian Hospital. Subsequently, Mark was taken to Children's Memorial Hospital where he died later that day. While at Norwegian Hospital, Yncour heard defendant tell a doctor that because Mark was crying he had placed him on the couch and went to sleep next to him. When he awoke, Mark was on the floor. Yncour also testified that two months prior to his death, Mark had been crying and defendant struck him with his fist, and that when the child was 4 months old she found three or four burns on the back of his head which defendant told her accidentally occurred while he was doing some welding. On another occasion Yncour said defendant had kicked the crib, causing Mark to fall out of it.
Dr. Robert R. Moody, chief resident at Children's Memorial Hospital, Kiyo Yoshimira, a hospital social worker supervisor, and John Toenings, a police investigator, testified that defendant told each of them he had fallen asleep on the couch with Mark and, upon awakening, he found the child on the floor. There was additional testimony from Yoshimira that defendant said he slapped Mark in an attempt to revive him; from Dr. Moody that the child had suffered multiple skull fractures which were the result of great blunt force; and from Toenings that the distance between the seat of the couch and the floor was 15 inches and that, after he had made this measurement, he called Dr. William Beamer who told him that it was possible the skull fractures could have resulted from a fall.
Dr. Beamer, a Board certified pathologist who performed the autopsy, testified for the State that the child's death resulted from subdural hemorrhage associated with skull fractures and a laceration of the liver, all of which were due to blunt trauma and were of such severity that they could not have resulted from a fall of 15 inches but rather "from a height of maybe a story or greater, two stories." On cross-examination, he said that the laceration of the liver could have resulted from the resuscitation and cardio-massage, and that his post-mortem examination disclosed no evidence of burns, bruises, white marks or forehead injuries.
Assistant State's Attorney Mary Shropshire testified that defendant read over a court reporter's transcribed copy of her interview with him, made corrections, initialed each page, and then signed it. In this statement, which she read into the record, defendant stated that Mark was alert when he gave him a bottle at approximately 12:30 a.m.; that when he awoke and found Mark on the floor he observed that his lips were blue, his limbs were limp, he could open only one eye, and he was breathing slowly; that although he had wanted a girl when Yncour was pregnant because they already had a boy, he nevertheless loved Mark; that once or twice he bit Mark on the cheeks causing them to turn blue; and that on one or another occasion he picked Mark up by the neck and tossed him on the couch.
Dr. Steven Medgyesy, a pathologist, testified for the defense that from the records of Dr. Beamer and those of the Norwegian and Children's Memorial Hospitals he determined that the cause of death "was blunt injuries to the head with subdural hemorrhage," that, in his opinion, the amount of force causing the skull fractures was minimal to moderate, that a laceration to the liver can occur as a result of cardio-massage and resuscitation, and that although the fractures could not have been caused by a fall of 15 inches he had observed similar injuries from falls of 2 feet.
Dr. Harvey White, a pediatric radiologist, testified for the State in rebuttal that the child's multiple skull fractures could have resulted from a sharp blow with a fist, but it would have required a fall of at least 8 to 10 feet to have caused such injuries.
• 1 Defendant first contends his guilt was not established beyond a reasonable doubt because the evidence was entirely circumstantial and did not exclude a reasonable hypothesis that death was accidental. Where a conviction is based upon wholly circumstantial evidence, proof beyond a reasonable doubt requires the exclusion of every hypothesis consistent with defendant's innocence. (People v. Garrett (1975), 62 Ill.2d 151, 339 N.E.2d 753; People v. Frost (1977), 47 Ill. App.3d 767, 362 N.E.2d 417.) Thus, our initial inquiry concerns whether the State's case rests solely upon circumstantial evidence.
We note that direct evidence is proof of the existence of a fact in issue without inference or presumption (People v. Cox (1979), 71 Ill. App.3d 850, 389 N.E.2d 1238; People v. Christiansen (1969), 118 Ill. App.2d 51, 254 N.E.2d 156), as in the case of manslaughter where the witness saw the accused inflict the blow causing death (see 1 S. Gard, Jones on Evidence § 1:3, at 3 (6th ed. 1972)). Circumstantial evidence, however, is indirect proof of the principal facts which can be inferred only from one or more circumstances directly established. People v. Robinson (1958), 14 Ill.2d 325, 153 N.E.2d 65.
• 2 In the instant case, we find that no direct evidence was presented as to defendant's guilt. The testimony of Yncour and other State witnesses as to statements of defendant established only that defendant was with the child at the time of his injuries and, while there was medical testimony concerning those injuries, no direct evidence was produced as to their cause. Although there are cases in which admissions of an accused constituted direct evidence, they are not controlling here as they concern admissions directly establishing participation in the crime or they constitute direct proof of an element of an offense. (See, e.g., People v. Panus (1979), 76 Ill.2d 263, 391 N.E.2d 376 (witness testified that defendant admitted taking property); People v. Brown (1974), 56 Ill.2d 312, 307 N.E.2d 356, rev'd on other grounds & remanded (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254 (defendant's written statement indicated he tied up the victim who was then shot by another person); People v. Ross (1980), 89 Ill. App.3d 128, 411 N.E.2d 1187 (witnesses testified that defendant told each ...