Appeal from the Circuit Court of Lake County; the Hon. William
D. Block, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Defendant, Donald Jones, was convicted at a bench trial of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(2)) and sentenced to a term of natural life imprisonment. He appeals, contending (1) that the conviction of murder should be reduced to involuntary manslaughter, (2) that the trial court improperly admitted hearsay and irrelevant evidence, and (3) that his sentence of natural life imprisonment should be reduced because it is excessive given the circumstances, and because the trial court improperly considered certain factors in aggravation and improperly ignored certain mitigating factors.
The victim in this case was a four-year-old boy named Dennis Carson. He was the son of defendant's girlfriend, Jessica Carson. Defendant, Jessica, and Dennis resided together in an apartment in North Chicago.
Dennis died as a result of injuries he sustained during an automobile ride he took with defendant on the morning of October 30, 1983. Dr. Larry Blum, the pathologist who performed the autopsy on Dennis at about 7 p.m. that day, testified that the child was 40 1/2 inches tall and weighed about 40 pounds. He said that during his external examination he observed multiple blunt trauma injuries. There were three bruises on the child's forehead. There was a bruise accompanied by an abrasion in the child's "left eye region," and a bruise over the right eyebrow. There was an abrasion on the child's left cheek, and three bruises on the right side of the face "in the cheek area and the chin area." There was a laceration on the child's lower lip. Dr. Blum stated that he opened the child's mouth and observed that the frenulum, which is "tissue going straight up from the lip * * * up above the two front teeth," was torn and bruised. There were abrasions "of both ears towards the back" and two bruises on the neck. Dr. Blum described seven bruises that he observed on the child's chest, and a bruise and several abrasions on the abdomen. The child's left arm showed four separate bruises, and there was a bruise on the left wrist as well as an abrasion on the left hand. There was a bruise on the right side of the groin and a "tearing of the skin right above and slightly to the right of the penis." The underside and the side of the penis showed some swelling, and the underside showed an abrasion. There were also bruises over both knees. There were "numerous" bruises on the child's back, and two bruises on the right buttock. There was an "abrasion-contusion" injury in the upper part of the left thigh. Dr. Blum testified that most of these bruises were of recent origin, i.e., they were caused within a day or day and a half prior to his examination.
Dr. Blum stated that the child's abdomen and the right half of his scrotum were distended. Internal examination revealed that this swelling was caused by free air in the abdomen. Dr. Blum determined that this air had leaked into the abdominal cavity from a rupture in the small intestine. Dr. Blum testified that in addition to the air, there was free blood in the abdomen. He determined that this condition was caused by a rupture of blood vessels in the mesentery, which is a fat and fibrous tissue from which the intestines get their blood supply. The amount of free blood in the abdomen was about half of the blood in the child's body. Dr. Blum stated that anyone who loses more than a third of his blood, either internally or externally, is liable to die of shock. Dr. Blum stated that the amount of time required for the air and blood to accumulate in the abdomen would have been between 3 to 14 hours. There were also hemorrhage about the right kidney, the duodenum, the adrenal gland, and on the outside covering of the stomach. There was also a small hemorrhage in the liver. Dr. Blum stated that the internal injuries were probably caused by an object pushing the abdomen in and out quickly. Finally, Dr. Blum gave his opinion that the cause of Dennis' death was blunt trauma.
Dr. Paul Kineberger, a pediatrician, who reviewed the medical reports in this case, concluded that there had been more than one blow to the child's abdomen.
Defendant gave a statement to Officer Phelps of the North Chicago police department at about 7 p.m. on the date in question. Phelps asked defendant what he knew about the bruises on Dennis' body, and defendant replied that he knew about the bruises on the boy's mouth and buttocks because he (defendant) put them there. Defendant told Phelps that the incident occurred shortly after 6:30 a.m. while he was driving his car from the residence of Brian and Tammy Weekley in Zion to his girlfriend's place of employment, an establishment in Park City called Blue Suede Shoes. Defendant was on his way to pick up his girlfriend from work. When defendant and Dennis got into the car at the Weekley's, Dennis urinated in his pants. Defendant made Dennis sit in the urine. Defendant told Phelps that the child began ranting and raving, jumping up and down, and grabbing items off of the dashboard. At one point Dennis' jumping around almost caused him to drive off the road. Defendant told Phelps that during this tantrum he "backhanded" the child 5 or 10 times. Defendant told Phelps that he became angry and tried to make Dennis sit down. On one occasion, Dennis began to go into the back seat, and defendant pulled him back into the front and hit him some more. By the time they arrived at Blue Suede Shoes, Dennis was lying down in the back seat. Jessica came out to the car. Defendant told her that he and Dennis had "had a good one that night." Jessica stated that because of the change to central standard time she would not be finished with work for another hour.
Defendant told Phelps that he drove Dennis home, carried him up to the apartment and laid him on the couch. About an hour later, defendant picked Jessica up from work and drove her home. When they arrived, Dennis was asleep on the couch. Defendant and Jessica then went to sleep. Defendant got up in the afternoon, and he discussed with Jessica "getting some help * * * because the child had been throwing fits and they was [sic] wondering where what the problem was, and punishing the child." During this conversation, defendant went into the living room to get a cigarette and saw Dennis lying on the couch with his eyes rolled back. Defendant determined that the child was not breathing, and defendant administered mouth-to-mouth resuscitation. Jessica called an ambulance. Defendant told Phelps that a short time later the paramedics arrived. After giving Phelps this statement, defendant made a tape-recorded statement about the incident. The tape recording was played to the trial court, but the record on appeal does not include the tape recording or a transcription of it.
The paramedics who responded to Jessica's telephone call also testified for the State. They testified that they received the call at about 4:10 p.m. on the date in question. They testified that when they arrived at the apartment, defendant was administering CPR to the child. They also described their unsuccessful attempts to revive the child.
Brian and Tammy Weekley also testified. They indicated that defendant and Dennis had spent the night of October 29-30, 1983, at their home. Dennis went to sleep about 10 p.m. and got up at about 6:30 the next morning. Defendant stayed up all night, playing cards and visiting. The Weekleys stated that during the course of the night defendant drank about six beers and four vodkas.
Jessica Carson testified that defendant drove her to work at 8 p.m. on October 29, 1983. Dennis was in the car. Jessica testified that she saw no bruises on Dennis at that time. When defendant and Dennis arrived to pick her up the next morning, she could not see Dennis clearly. He was in the back seat, and it was dark outside.
An hour later defendant came back alone to pick her up. When they got back to the apartment, Dennis was lying on the couch. Jessica had a conversation with defendant. Defendant told her that he could not believe that he had hit his "son." He said that he lost his temper. Jessica told defendant that Dennis needed some sleep, and defendant replied, "No, I want him to stay awake so I know he's okay." Apparently, Jessica and defendant let Dennis sleep, and they then went to sleep.
Jessica woke up about 1:45 p.m. At that time she had a conversation with Dennis. He told her that his "dad" had got upset the night before. Dennis also complained of a slight stomachache. At that time Jessica saw bruises on the boy's face, arms, and chest.
Jessica testified she went to the grocery store, leaving Dennis lying on the couch. When she returned, she and defendant had a conversation. Defendant was very upset, and he said that he had hit Dennis too hard. It was during this conversation that defendant discovered the child was not breathing, and the ambulance was called.
The State also introduced various photographs and items of physical evidence from defendant's car and the apartment. There was dried blood on the dashboard, windshield, passenger door, and back seat of defendant's car. From the apartment police recovered a pillow, a towel, and a nylon sock with part of a wire hanger inside of it. All of these items had dried blood on them. Also recovered from the apartment were two belts and a bar of soap with teeth marks on it.
The State introduced evidence of prior incidents involving the discipline of the child. Rhonda Pomeroy, who lived across the hall from the apartment, testified that defendant, Jessica, and Dennis moved in about the beginning of October 1983. She testified that on the weekend of October 8 and 9 she noticed that Dennis had bruises on the side of his face, and his lips were swollen. Pomeroy testified that she and her husband asked defendant what had happened. He replied that Dennis had been too loud, and that he (defendant) had stuck a sock in his mouth. Defendant told the Pomeroys that Dennis pulled the sock out and bit him on the knuckle. Defendant told the Pomeroys he struck the child "out of reflex." Later that month Pomeroy observed makeup on the bruises. Defendant told her he put the makeup on the bruises because he was embarrassed. Pomeroy also described an incident in which she observed defendant spank the child with a belt. Finally, Pomeroy testified that during the middle of October she observed that there was a patch of hair missing on Dennis' head near the crown. Defendant told Pomeroy that he had been holding onto Dennis by the hair, and that "Dennis wouldn't give," and that the hair was pulled out in that way.
Pomeroy testified that during October 1983 she saw bruises on Dennis five, six, or seven times. She said that on these occasions Dennis would tell her that his dad hit him.
Pomeroy also testified about a conversation she had with defendant in which he told her that he did not know how to handle Dennis anymore. Defendant told her that he could beat Dennis, and the boy would turn around and laugh at him. Pomeroy and her husband told defendant that "he was going to hurt him [Dennis] bad if he didn't, you know, spanking him or doing the things he would, could really hurt him."
Cora Reed testified that she lived in the same apartment building as defendant, and that she babysat Dennis on numerous occasions. Reed said that on October 15, 1983, Jessica came to her apartment. She was very upset. She showed Reed a note defendant had written which said, "Jessica, I've taken Dennis to the police to turn him over as an abandoned child. Call the Chicago Police in about an hour. I love you, Don." Reed also testified that two days later she observed bruises on Dennis' face. She also observed that there was some hair missing from his scalp. Jessica informed Reed that "[w]e've had a rather rough weekend."
Finally, Jessica testified that defendant and she forced the child to bite down on a bar of soap when he said something "ugly." She testified that she did not strike the child on October 30, but she had previously struck the child hard enough to leave marks. She said that prior to the weekend of October 29 and 30, 1983, she and defendant had discussed the problems they were having with Dennis. Jessica told defendant that she thought sometimes he was a little too strict. They discussed obtaining family counseling. Jessica said that Dennis ...