Appeal from the Circuit Court of Champaign County; the Hon.
Robert J. Steigmann, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Champaign County, defendant was convicted of murder and sentenced to an extended term of 60 years' imprisonment. He now appeals his conviction and sentence, claiming that he was not proved guilty beyond a reasonable doubt, that the statute under which he was convicted is unconstitutional, that the trial court made several erroneous rulings during his trial, and that his sentence is excessive. We affirm.
On September 2, 1982, a Champaign County grand jury, in a six-count indictment, charged Wayne Rosenberger with the offense of murder in violation of section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9-1). The death penalty was requested. All six counts alleged that defendant had killed his 23-month-old son, Christopher, by repeatedly striking him about his head and body. The counts alleged various levels of criminal intent ranging from intent to kill or do great bodily harm to knowledge that such acts created a strong probability of great bodily harm or death.
Defendant subsequently filed a motion to exclude the death penalty alleging, in part, that the counts of his indictment which charged him with knowledge that his acts created a strong probability of great bodily harm or death are virtually indistinguishable from the offense of involuntary manslaughter as defined in section 9-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9-3). Defendant later orally moved to dismiss counts I through IV of the indictment on this basis also. The trial court denied both motions.
Before trial, the court informed counsel that the voir dire examination would be conducted solely by the court. Counsel were invited to submit to the court any questions which they might wish the court to ask. Defense counsel requested that the court question the veniremen regarding their possible acquaintance with witnesses listed in the State's discovery disclosures as well as those listed by the defense. Defense counsel then offered to prepare such a list. The court suggested that both counsel work together on the list and that the witnesses included on the list not be identified as to which side they would be testifying for. The court further requested that the list not be overly extensive and that persons not likely to testify should not be included. Defense counsel thereafter submitted a list of 23 potential defense witnesses, and the prosecution submitted a list of six prosecution witnesses.
On February 14, 1983, one day before trial, defendant filed a motion to compel disclosure. He alleged therein that on February 4, 1983, defense counsel interviewed Investigator Walter Wolfe of the Champaign County sheriff's department. During the interview Wolfe indicated that he had spoken to one of defendant's neighbors on the day after the alleged murder, August 30, 1982. Wolfe stated that she refused to give her name but did say that she observed bruises on the victim prior to his alleged murder. Wolfe stated that he informed Champaign County State's Attorney Thomas Difanis of this conversation. Defense counsel argued that the State's Attorney had a duty to disclose this information as "material information which tends to negate the guilt of the accused." Defanis informed the court that Wolfe had told him of the conversation; however, the only information that Wolfe gave him was that the neighbor was extremely uncooperative and that she may have attempted to call the Department of Children and Family Services (DCFS) on the morning of the child's death. Defense counsel responded, "I was under the impression that Investigator Wolfe understood that she called DCFS because she saw injuries on the child that week. But if Investigator Wolfe did not inform that to the State's Attorney, that's fine. We'll bring that out at trial."
On February 10, 1983, a newspaper article appeared in the Champaign-Urbana News Gazette concerning the trial of Enrique Guerrero, Jr., completed that day in Urbana. Guerrero had been found innocent of murdering his six-month-old son. The article stated that evidence of previous injuries on the body of the victim was barred pursuant to a pretrial motion and that the prosecution felt that this could have made a significant difference in the jury's verdict. The article further stated that the assistant State's Attorney criticized "the system" for preventing the prosecution from presenting such evidence. The article further detailed the Guerrero trial and concluded by stating that "Wayne Otis Rosenberger, 21, formerly of rural Champaign, is scheduled to go on trial Monday for the murder of his 20-month-old son, Christopher."
On February 14, 1983, prior to the commencement of jury selection, defense counsel moved for a continuance, alleging that his ability to receive a fair trial before an unbiased jury had been prejudiced by the newspaper article, particularly in light of the fact that there would be some jurors in the venire panel in this case who had served on the Guerrero jury.
The trial court denied the defendant's motion, stating that the court would pursue extensive voir dire with any juror who would indicate that he had read anything about the case. The court subsequently allowed a challenge for cause for those jurors who had actually served on the Guerrero jury.
The trial began on February 15, 1983. Investigator Walter Wolfe of the Champaign County sheriff's department testified that on August 30, 1982, he went to Burnham City Hospital in Champaign to observe the body of Christopher Rosenberger. Since the body was covered with numerous bruises and other injuries, he began an investigation of the death. Wolfe testified that he had an initial conversation with the defendant on the evening of August 30 in a store parking lot. He informed defendant of his Miranda rights and defendant agreed to speak with him. During the conversation, Lieutenant Roger Corray was present intermittently. Wolfe stated that the defendant initially said that on the morning of August 30 he had taken his girlfriend, Cathy Miller, to work. He returned to his residence at approximately 8 a.m. and fed Christopher his breakfast. He then heard Christopher crying outside and he went to the door and found that the child had fallen down the steps. He then picked Christopher up and took him into the shower and ran cold water on him. Defendant stated that he left the shower to get towels and then heard Christopher screaming and that Christopher had turned the hot water on himself, causing a burn on his chest.
At this point in the interview Wolfe expressed doubt and urged defendant to tell the truth. Defendant then said that after breakfast he and Christopher were seated on the living room couch and Christopher pulled two leaves off of a houseplant. Defendant then began hitting him with his hand. He stated that he was thinking about not having a job, not being able to pay his bills and that he had become angry. He stated that he hit Christopher too hard and that he hit him all over his body. Defendant said that at one point he knocked Christopher off of the couch. Christopher then staggered and began acting tired. Defendant said he felt sorry for Christopher and told him that he would buy him a toy. Christopher then staggered out onto the porch of the trailer and fell down three steps. Defendant then placed him in the shower, where he said Christopher turned the hot water on himself. Defendant stated that he could not wake Christopher so he left to get Cathy Miller. Following these statements, Wolfe allowed defendant to leave.
The next morning Wolfe and Corray again contacted defendant at the trailer where he lived. Defendant told them the same story initially. Wolfe again expressed doubt, stating that he did not believe Christopher got up after being knocked off of the couch. Defendant then admitted that Christopher was unconscious at that point.
Following a discussion about whether defendant should get an attorney, defendant asked to speak to Wolfe alone. He stated that he would tell the whole story if he would be allowed to attend his son's funeral. He then told basically the same story, except that this time he said that as he was hitting Christopher, he fell out the door and down the porch steps. At that point, defendant said Christopher was unconscious and he took him into the shower and ran cold water over him. When this did not revive him, defendant poured a cup of very hot water on him, causing a burn on his chest. Defendant picked off the blistered skin, dressed the child and laid him on a bed. He then left to get Cathy Miller at her place of employment.
During cross-examination Wolfe testified that defendant told him that he went "wild" while hitting his son. Wolfe also stated that he had spoken to one of defendant's neighbors, Zina Tabor, who told him that she had asked her mother or mother-in-law to call DCFS because Christopher had two black eyes on the weekend immediately preceding his death.
Lieutenant Roger Corray testified that he had accompanied Wolfe during his interviews with the defendant. However, he was not present during much of the interview in the store parking lot. He testified that he did hear defendant state that he felt bad because he had hit Christopher "too hard," and that Christopher fell down the steps and then burned himself in the shower.
Corray testified that during the interview at the defendant's trailer on the following day, defendant said that he was upset, he struck the child too hard, and knocked him to the floor. Corray remembered that defendant said that he hit the child on the back with his hand. Corray also testified that he did not hear all of the conversation inside of the trailer and that defendant later asked to speak to Wolfe alone.
The State then called Donald Deedrick, who testified that he saw Christopher on August 26, 1982, and that he appeared active and normal, although he had a bruise on his forehead.
At this point defense counsel objected and asked that the State be barred from calling further witnesses who were not listed as potential witnesses during the voir dire examination of prospective jurors. The objection was overruled.
The State then proceeded to call several witnesses who testified that Christopher was active and normal during the days before his death. Each witness did state that he child had two black eyes. The child's maternal grandmother testified that he had received two black eyes as a result of a fall while he was in her care in late July 1982.
Prior to presenting the testimony of Angela Russell, Christopher's mother, the State's Attorney moved in limine that defendant be barred from making any inquiry regarding an investigation by DCFS into suspected child abuse of Christopher by Angela Russell in July 1982. The court allowed the motion only as to evidence of the actual investigation. Defendant was allowed to elicit testimony that certain witnesses thought Christopher's appearance in July was serious enough to warrant a report to DCFS.
Angela Russell testified that she was Christopher Rosenberger's mother and that she had never married the defendant. After Christopher was born in September 1980, she refused to let defendant visit the child. However, defendant was allowed to begin visiting Christopher in May 1982. Russell testified that she and Christopher lived with her sister and brother-in-law during 1982 and that she would bring Christopher to visit defendant on most weekends starting in May. Sometimes she would leave Christopher with his father overnight. Defendant lived in a trailer with Cathy Miller and her two daughters. She then recounted several bruises and bumps that Christopher had received from various falls in July and August.
Russell stated that after leaving Christopher with defendant on Friday, August 27, 1982, she visited defendant's trailer on Saturday and Sunday too. She stated that Christopher appeared fine and looked normal at these times. She decided then to let Christopher stay with defendant the entire week since Christopher would be visiting his grandparents the next weekend. On Monday morning at approximately 11:30 Russell received a call from defendant at her place of employment. Defendant said Christopher had fallen out the front door and was unconscious. She told him to meet her at Burnham City Hospital, but he refused, saying that he was "too nervous." Russell then drove to defendant's trailer and found Christopher on the bed, cold and with no sign of life. She then put him in her car and drove him to the hospital, where he was subsequently pronounced dead on arrival. Russell stated that Christopher's appearance on Monday morning was not like his appearance on Sunday night.
The State presented the testimony of Dr. Stanley Bobowski, a certified pathologist at Burnham City Hospital, who performed an autopsy and examination upon the body of Christopher Rosenberger on August 30, 1982. Dr. Bobowski estimated the age of a large purple bruise on the right side of the head to be one to three hours old at the time of death. He based this estimate upon the color of the bruise as well as his examination of the tissue and blood beneath the scalp. Dr. Bobowski also estimated that bruises on the scalp line and on the left cheek were also one to three hours old at the time of death. He further testified to the presence of a bruise in the middle of the back in the shape of a hand. He felt that this bruise, too, was inflicted within one to three hours of death. Dr. Bobowski stated that there was a large fresh burn over the chest and abdomen. By "sectioning" this burn and observing the tissue under a microscope, he was able to estimate that the burn occurred very near to the time of death. He also described a long, linear, red depression in the skin on Christopher's chest and a similar mark on the neck. He estimated the marks were one to three hours old and he felt they could have been made by a rope burn or some very tight pressure, possibly tight clothing.
Dr. Bobowski also examined the internal organs. He found fresh hemorrhage on the left side of the brain, the small bowel, right rear abdomen, gall bladder, pancreas, adrenal gland, right kidney, and right diaphragm. He estimated the age of these internal hemorrhages to be from one to three hours old, based upon microscopic tissue examination.
Dr. Bobowski was of the opinion that most of these bruises and internal injuries were the result of blunt trauma and that the cause of death was traumatic shock from numerous injuries. He responded affirmatively when asked if it could be characterized as having been "beaten to death."
Under cross-examination Dr. Bobowski testified that some bruises on Christopher's face were over three days old. He also acknowledged that the linear marks could have been caused after death. He stated that there was no evidence of blood disorder or disease upon an examination of the liver and spleen. He also testified that there was no evidence of any broken bones, although he did not examine any X rays. While he felt that Christopher's injuries could "possibly" have been caused by falling down some stairs, Dr. Bobowski was of the opinion that death was caused by multiple blows with a blunt object, hand, or foot.
Dr. Allen Baird, the emergency department director at Burnham City Hospital, examined the victim on August 30, 1982, at 12:10 p.m. in the emergency room. Based upon his personal examination and aided by photographs of the deceased at trial, Dr. Baird estimated that bruises on the right side of the head, the left hairline, the left forehead and cheek, the linear abrasions on the neck and chest, two handprint bruises on the back and bruising on the front of the abdomen were all less than one day old. He also noted several older bruises. He felt that the linear abrasion on the neck could have been caused by someone pulling on the victim's clothing. However, he thought the linear abrasion on the chest could have been caused by a baseball bat or shoe. Dr. Baird felt ...