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People v. Kent

OPINION FILED DECEMBER 20, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DIANE KENT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Frank B. Machala, Judge, presiding.

JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Defendant Diane Kent was charged by indictment with the murder of her four-month-old daughter. Count I charged that defendant, in violation of section 9-1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)), knowingly and intentionally killed the baby by feeding the child alcoholic beverages. Pursuant to defendant's motion at the close of the State's case, the trial court entered a finding in favor of defendant on this count. Count II charged that defendant violated section 9-1(a)(2) of the Criminal Code in that she knew her actions created a strong probability of death or great bodily harm. Defendant was found guilty on this count and sentenced to 20 years in the Illinois Department of Corrections.

On appeal, defendant contends (1) she was not proved guilty beyond a reasonable doubt; (2) the trial court erred in assessing the qualifications of a defense expert on evidence outside the record; (3) testimony regarding the results of tests performed on a tissue specimen was improperly admitted; and (4) the trial court erred in denying defendant's motion for substitution of judges.

We reverse.

At trial, Officer McLaughlin testified that at about 12:30 p.m. on June 23, 1980, he arrived at defendant's home. Paramedics at the scene stated the infant had no vital signs. Officer McLaughlin and his partner took the baby to Provident Hospital where at 1:15 p.m. the baby was pronounced dead. The deceased was then taken to Cook County Morgue.

Officer Michael Pochordo, a Chicago Police Department detective conducted a follow-up investigation on the baby's death. On July 26, 1980, Pochordo spoke to Dr. Donoghue, the county pathologist, who told him the baby died of acute alcoholism. He interviewed defendant and her sister the following day at the police station. During the interview, defendant stated she was an alcoholic. Pochordo immediately called assistant State's Attorney Schwind who interviewed defendant in Pochordo's presence. On cross-examination, Pochordo testified that Dr. Donoghue initially attributed the cause of death to Sudden Infant Death Syndrome.

Richard Schwind testified that on July 27, 1980, Pochordo informed him of the facts of the baby's death. He spoke to Dr. Donoghue and defendant's sister and then interviewed defendant. During the interview, defendant agreed to give a written statement. This statement, given at 1:15 p.m. on July 27, 1980, was read into evidence. The following facts are found in the statement.

Defendant lived with her grandmother, aunt, sister and her sister's three children. On June 22, 1980, defendant arose at 7 a.m. She fed the baby creamed corn and a bottle of milk. She also gave the baby liquid Tylenol because the baby had a fever. Defendant went to church and returned home at 2:30 p.m. She left again that afternoon, returned home at 9:30, fed the baby milk, and took her for a walk. The baby was sleeping when they arrived home. Thereafter, defendant and her sister's boyfriend went to a bar where defendant drank four beers. At about midnight, defendant's brother came to the bar to bring defendant home because the baby was crying. Defendant fed the baby a bottle of milk prepared by her sister. She and the baby fell asleep. At about 2 a.m. on June 23, 1980, the baby was crying, but would not drink the milk defendant tried to feed her. When defendant arose at noon, she lifted the baby. The baby was cold to the touch. Defendant also stated she was an alcoholic and attended Alcoholics Anonymous meetings. Twice daily from the time the baby was three weeks old, defendant gave the baby beer mixed with equal parts of water. She could not recall if she fed the baby beer on June 22 or 23.

Dr. Donoghue, physician, forensic pathologist, and deputy chief medical examiner of Cook County, performed an autopsy on Mary Jane Kent on June 24, 1980. He testified that the deceased weighed 12 pounds and measured 22 1/2 inches in length. These measurements indicated the baby was undernourished and suffered growth retardation. Ninety-seven percent of babies the age of the deceased weighed more and were taller than the deceased. Upon performing an internal examination, Dr. Donoghue found petechial hemorrhages on the lung surfaces and pulmonary edema fluid in the trachea. The liver was enlarged and pale tan in color. The stomach contained tan fluid. A microscopic examination of internal organs revealed fat vacuoles in the liver and aspiration of gastric content in the lungs. Aspiration occurred when stomach fluid traveled through the esophagus and trachea into the lungs where the fluid caused chemical damage. Aspiration prevents lungs from absorbing oxygen, thereby causing asphyxiation.

Dr. Donoghue also requested an alcohol determination on muscle tissue he removed from the neck of the deceased. The test is customarily performed on blood samples. However, he initially did not consider alcohol poisoning as a possible cause of death and thus preserved no blood from the body. The muscle tissue was sent to the toxocology lab. Test results revealed 20 milligrams percent ethanol in the tissue. Dr. Donoghue determined death was caused by aspiration of gastric content due to alcohol intoxication. Significant contributing factors were fatty liver and chronic alcoholism.

On cross-examination, Dr. Donoghue testified that the time of death was not ascertained exactly, but death occurred between 3 a.m. and 12:45 p.m. on June 23, 1980. He further testified that decomposition after death produces ethanol. If ethanol is produced post-mortem, it usually is accompanied by a bad odor. No similar odor is present if ethanol is produced from consumption of alcohol. The amount of ethanol found in body organs and fluid varies if ethanol production occurs post-mortem, whereas if ethanol is found in equal levels in different organs, its presence is not caused by decomposition.

Donoghue further testified on cross-examination that he took only one muscle sample and although he took the sample from the neck, several other muscles would have yielded suitable samples. When alcohol is consumed, its concentration first rises in the blood, then in the muscle, and is eventually equalized in all parts of the body. Generally, alcohol is eliminated from the system in 24 hours. The average ethanol level in those who die from alcohol poisoning is about 350 milligrams percent. Dr. Donoghue also stated a fatty liver is a manifestation of malnutrition and Reyes Syndrome. Other significant pathological findings in this case are also commonly found in children who succumb to Sudden Infant Death Syndrome.

Dr. Michael Schaffer, chief toxocologist for the office of the medical examiner of Cook County, supervised the laboratory at the morgue. He testified to the chain of custody of the muscle sample and described the procedures used to test specimens for volatiles. The muscle sample in this case was received by him at 2:49 p.m. on June 23, 1980. The tissue was not frozen. The tests were performed about 24 hours later. The method used to detect alcohol content does not distinguish the cause for presence of ethanol. The tissue sample was buried some time after the tests were performed.

Sofia Dziugas, a laboratory technician in the medical examiner's office, performed tests on the muscle sample and described the testing procedures. The test was run three times to verify the results. The ...


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