Appeal from the Circuit Court of Lake County; the Hon. Jack
Hoogasian, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, Malcolm Frazier, was convicted by a jury in the circuit court of Lake County of the offense of involuntary manslaughter, and the trial court sentenced him to a five-year term of imprisonment.
On appeal, the defendant raises these four issues: (1) whether the trial court erred in refusing to instruct the jury with the second paragraph of the circumstantial evidence instruction (Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (2d ed. 1981)); (2) whether the trial court erred in admitting in evidence a wooden stick and cumulative, graphic medical testimony; (3) whether he was proved guilty beyond a reasonable doubt; and (4) whether the five-year sentence was an abuse of the trial court's discretion.
The defendant was charged with the offense of involuntary manslaughter following the death of his 18-month-old natural daughter, Tasha Teasley. Tasha died 10 days after she was brought to the hospital; the cause of death was determined to be traumatic subdural hematoma bleeding on the surface of the brain as evidenced by multiple areas of subgaleal hemorrhage resulting from excessive multiple traumatic events to the head. The defendant explained that Tasha had been playing, jumping, and had fallen off the bed which consisted of a mattress and box spring placed on the floor and possibly had fallen onto a set of weights or an end table. In his statement to a North Chicago police officer concerning the incident, he admitted he had disciplined Tasha earlier that day for not eating her breakfast and her lunch by whipping her on the arms and legs with his hand and with an afro comb. During taping of his statement, he added that he had also angrily "backhanded" her during the day, knocking her to the floor, because she had "messed on herself."
Witnesses at trial testified to Tasha's overall bodily condition, noting numerous areas of new, red bruises and several scarred areas indicating prior injuries that had healed. Two medical witnesses testified Tasha's injuries were compatible with the "battered child syndrome."
CIRCUMSTANTIAL EVIDENCE INSTRUCTION
• 1 The defendant contends the evidence against him at trial was purely circumstantial, and the court erred reversibly in refusing his tendered instruction, which included the second paragraph of IPI Criminal No. 3.02, to wit:
"You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence."
The main point in contention here is whether the defendant's statements to the police and to a witness, Allan Friedman, are direct evidence. If so, then the court did not err in refusing to instruct the jury as provided in the second paragraph of IPI Criminal No. 3.02. The defendant argues that where an accused's statement is in the nature of a confession, that is, it includes an admission of participation in the offense, then the statement is direct evidence. However, where the defendant's statement is exculpatory, as here, it is not direct evidence. In support of that proposition he relies on People v. Garcia (1981), 95 Ill. App.3d 792, and argues that the evidence shows he presented an "eminently reasonable theory of innocence" at trial; that Tasha fell and hit her head. He contends his theory was corroborated by evidence that a radiator, barbells and a table were observed located next to the bed in the apartment. Further, that his theory was corroborated by the testimony of Doctor Choi, who performed the autopsy on Tasha, and Doctor Paula Jaudes, a pediatrician, professor of pediatrics, and chief of the child negligence and abuse program at the University of Chicago and La Rabida Children's Research Center.
The State argues in response that any statements made by the defendant are to be considered direct evidence. (People v. Spataro (1978), 67 Ill. App.3d 69.) It points out in People v. Garcia (1981), 95 Ill. App.3d 792, cited by the defendant, that the court determined both paragraphs of the instruction should have been given, but it nevertheless affirmed the defendant's conviction of involuntary manslaughter of his five-month-old son. It did not appear to the Garcia court that the instructional error denied the defendant justice or produced a guilty verdict, since there was no reasonable theory of innocence consistent with the evidence presented where the defendant's explanation was that he and the child were sleeping on the couch and he awoke to find the child on the floor, injured.
"Circumstantial evidence is the proof of facts or circumstances which gives rise to a reasonable inference of other facts which tend to establish the guilt or innocence of a defendant." (People v. Evans (1981), 87 Ill.2d 77, 83; see also People v. Rhodes (1981), 85 Ill.2d 241.)
The second paragraph of IPI Criminal No. 3.02 should be given "when the proof of guilt, as to each element of the offense, is circumstantial." (People v. Evans (1981), 87 Ill.2d 77, 83.) In affirming the reversal of the convictions of Evans' co-defendant, John Dorris, the court found the record revealed no direct evidence of fact upon which the jury could arrive at the conclusions advanced by the State to establish his accountability for Evans' acts. "Direct evidence" is proof of the existence of a fact in issue without the necessity of inference or presumption, or evidence of a fact perceived by means of a witness' senses. (People v. Stokes (1981), 95 Ill. App.3d 62, 68; People v. Garcia (1981), 95 Ill. App.3d 792, 796.) It has been held that, where the defendant offered explanations of how incidents occurred, any statements made by the defendant be considered direct evidence. (People v. Triplett (1980), 87 Ill. App.3d 763, 770; People v. Spataro (1978), 67 Ill. App.3d 69, 75; People v. Fletcher (1976), 40 Ill. App.3d 537, 542.) The earliest of those cited cases, Fletcher, relied in turn on People v. Brown (1974), 56 Ill.2d 312, rev'd & rem. on other grounds (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254. In that case, the court found the second paragraph of the instruction was properly refused where the defendant's own statements provided direct evidence of his participation in the crime.
Accordingly, not just any statement or admission made by the defendant constitutes direct evidence. Where the exculpatory statements of a defendant do not establish participation in the crime or an element of the offense, they are not the "direct evidence" which obviates the need to give the second paragraph of the instruction. People v. McLaughlin (1984), 121 Ill. App.3d 1080, 1085; People v. Garcia (1981), 95 Ill. App.3d 792.
• 2 The offense of involuntary manslaughter involves four elements: (1) defendant must have done an act, (2) which caused the death of another, (3) and his act, which was such that it was likely to cause death or great bodily harm, (4) was performed recklessly. People v. York (1978), 57 Ill. App.3d 243; Ill. Rev. Stat. 1983, ch. 38, par. 9-3.
"A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. * * *" Ill. ...