Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Jackson County,
the Hon. William H. South, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Defendant, Sherry Lynne Mitchell, was convicted by a Jackson County jury of two counts of attempted murder and two counts of aggravated battery of a child. She was sentenced to concurrent terms of 14 years for each of the four offenses. The appellate court vacated the convictions and sentences for attempted murder but affirmed the convictions and sentences for the aggravated battery of a child. (116 Ill. App.3d 44.) We granted both the State's and defendant's petitions for leave to appeal and consolidated the cases.
The convictions stem from the defendant's beatings of her 16-month-old daughter, Shannon Mitchell. The evidence at trial established that the defendant had transported the child to the emergency room of St. Joseph Memorial Hospital in Murphysboro, Illinois, during the morning of August 23, 1981. The defendant handed Shannon to a nurse, indicating that she had "to go find the mother," and then left the building. The child was in critical condition, and her body was covered with bruises. She was suffering from respiratory distress and dehydration and was comatose. The treating physician testified she evidenced symptoms of brain damage and that he did not expect her to survive. The supervisor of the emergency department of the hospital, a registered nurse, testified that "the bruises were not of the same age." Following emergency medical treatment at St. Joseph Hospital, Shannon was transferred to Cardinal Glennon Hospital in St. Louis, Missouri. She remained hospitalized until October 7, at which time she was transferred to a nursing home specializing in pediatric care. At the time of trial Shannon Mitchell could not sit without the aid of an orthopedically designed chair and apparently suffered sight impairment. She was unable to roll over or raise her head and was undergoing therapy to assist her with her motor skills. The testimony presented and the photographs admitted into evidence clearly established, and the jury found, that Shannon Mitchell had suffered great bodily harm.
Based upon a description of the vehicle which the defendant had driven when she took the child to the hospital, officers of the Murphysboro police department were able to determine Shannon's identity. When confronted by the police officer at her residence, defendant initially indicated that she was the baby sitter but ultimately admitted her true identity, and agreed to accompany the officer to the police station.
At the station defendant was given Miranda warnings, following which she acknowledged that she understood those rights and executed a written waiver. During the interrogation which followed, she admitted that she had taken her child to St. Joseph Hospital that morning. She indicated that the child was bruised and unconscious when she took her to the emergency room. Defendant stated that she and her boyfriend, Holbert Carrel, with whom she lived, had had an argument at approximately 3 p.m. on August 22. She became angry and struck Carrel several times. She continued to vent her anger and frustration by hitting Shannon several times with her hand, fist and a belt. Defendant indicated that the child had fallen down several times during the beating, and the defendant picked her up in order to strike her again. Following this beating, defendant stated, the child lay down for a period but then began to play. When Shannon was put to bed at approximately 11 p.m., there were several visible bruises, but she otherwise appeared to be normal.
Defendant further stated that the following morning, August 23, Shannon was "not minding and was getting into cupboards." As a result, defendant became "nervous" and she again struck the child. Defendant advised the officers that she struck Shannon with her open hand "she didn't know how many times, but a few." Following these blows, defendant placed Shannon in a high chair, and a short time later the child "apparently had a seizure and passed out."
After Shannon became unconscious, defendant placed a cool cloth on the child's head for approximately 15 minutes. When she remained unconscious, defendant took her to the hospital. When asked by the officers why she had beaten Shannon, defendant further explained that she wanted to give the child away, that the child reminded her of its father, whom defendant hated, and that defendant was taking her anger out on the child.
During trial, the prosecution also presented the testimony of an insurance agent to establish that defendant had purchased a life insurance policy insuring the life of her daughter. This testimony established that defendant had purchased a $10,000 life insurance policy on the life of Shannon Mitchell, naming herself as the beneficiary, on June 23, 1981. On cross-examination, however, it was elicited that the agent had initially contacted defendant, that is, defendant had not solicited the insurance. Further, the insurance agent testified that he did not know whether the policy remained in effect after it was issued because he terminated his employment with the insurance company. Defendant presented no evidence.
The trial court submitted the case to the jury on charges of both attempted murder and aggravated battery as a result of the beating of August 22 and identical charges based upon the beating of August 23. The court rejected defense counsel's tender of a jury instruction on the lesser included offense of simple battery. The jury convicted the defendant on all four charges, and as earlier stated, she was sentenced to concurrent terms of 14 years' imprisonment on each of the four counts.
The appellate court affirmed defendant's convictions and sentences on the two aggravated-battery-of-a-child counts. However, that court vacated the two attempted-murder convictions based upon its conclusion that the State had failed to prove beyond a reasonable doubt that the defendant intended to kill Shannon Mitchell. Before this court, the State seeks reinstatement of the attempted-murder convictions, arguing that the jury was justified in inferring the requisite intent based upon the character of the assault and other circumstances.
In order to sustain a conviction for attempted murder, the prosecution must prove that the defendant had the intent to kill the victim. (People v. Myers (1981), 85 Ill.2d 281, 289; People v. Barker (1980), 83 Ill.2d 319, 324.) Admittedly, the specific intent to kill may be shown by circumstances, including the character of the assault upon the victim. (People v. Garcia (1983), 97 Ill.2d 58, 85; People v. Ruiz (1982), 94 Ill.2d 245, 263; People v. Myers (1981), 85 Ill.2d 281, 289; People v. Koshiol (1970), 45 Ill.2d 573, 579, cert. denied (1971), 401 U.S. 978, 28 L.Ed.2d 329, 91 S.Ct. 1209, overruled on other grounds in People v. Nunn (1973), 55 Ill.2d 344.) It does not necessarily follow, however, that every assault involving serious bodily injury constitutes attempted murder.
In this case, the prosecution relied primarily upon defendant's statements to the police officers to establish her guilt. While she undoubtedly repeatedly struck her child, we do not believe that the circumstances of this striking, without more, are sufficient to establish the required intent, particularly in view of defendant's explanations for her behavior. There was ample opportunity for her to complete her crime if, in fact, she intended to kill the child. Further, following Shannon's loss of consciousness, defendant applied a cool cloth and ultimately took her to the hospital for emergency medical attention, actions which are not consistent with an intent to murder. This court has previously acknowledged that abandonment of the intent to kill, once the elements of attempted murder are complete, is no defense to the crime. (See People v. Myers (1981), 85 Ill.2d 281, 290.) Here, however, considering all of the circumstances, the proof is, in our judgment, simply insufficient to establish beyond a reasonable doubt that defendant possessed the requisite intent to kill. People v. Tamayo (1978), 73 Ill.2d 304, 310; People v. Harris (1978), 72 Ill.2d 16, 22.
The State also introduced, over the defendant's objection, evidence that defendant had purchased a $10,000 insurance policy upon her daughter's life. This evidence was offered in an effort to establish a motive for defendant to kill her daughter. However, the insurance agent who testified about the defendant's purchase of this policy was unsure as to whether the policy remained in effect on the date of the beatings or had lapsed for nonpayment of premiums. This court long ago recognized that any evidence which tends to show that an accused had a motive for killing is relevant. However, with reference to insurance policies, this court has required proof of the existence of such a policy and its relationship to the defendant. In People v. Gougas (1951), 410 Ill. 235, 239, this court determined that the admission of evidence of a life insurance policy must be predicated ...