Appeal from the Circuit Court of Kane County; the Hon. Patrick
J. Dixon, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, Chester Lester, was charged by indictment in the circuit court of Kane County with three counts of murder pursuant to section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)) following the September 29, 1984, death of four-year-old Jared Powell, the son of a woman with whom Lester lived. The defendant was found guilty of murder by a jury and sentenced to 40 years in the Department of Corrections. He contends evidentiary errors deprived him of a fair trial, he was not found guilty beyond a reasonable doubt, and he was denied his right to a jury representing a fair cross-section of the community when the prosecutor was allowed a peremptory challenge to a black venireman.
During voir dire, the prosecution exercised a peremptory challenge to exclude venireman Andrew Harris, a black man. In response to a defense objection, the prosecutor stated that "contacts" indicated Mr. Harris had prior arrests which were not divulged during the latter's questioning. Arguing that the "contact cards" utilized in juror selection did not provide any specific identification information, the defense attorney disputed the accuracy of the prosecutor's claim. The court overruled the objection and allowed the peremptory challenge to stand.
Jared Powell had been a student in Janice Head's afternoon kindergarten class in an Aurora elementary school for nine days commencing on September 18, 1984. He was absent from class for two of the nine days. Head recalled that he was in class on Thursday and Friday, September 27 and 28. She took his picture on Thursday for use at an upcoming open house for parents. She did not observe any extraordinary bruises on Jared's body, and she did not see any cuts on him on Friday, September 28.
On Saturday the 29th, Erlene Smith held a birthday party for her five-year-old son Cory at a McDonald's restaurant on Lake Street in Aurora. About 28 children attended the party, along with six or seven adults. The party began at 4 p.m. Smith recalled that about half of the children at the party, as well as other children, played outside on the restaurant's play equipment. She remained inside throughout the party.
Smith recalled seeing Jared Powell at the party with a lady she thought to be his mother. She said there was nothing unusual in the way he played. She did not watch Jared throughout the party. On direct examination, she said she noticed that Jared's hands were red. On cross-examination, she said she did not remember that Jared had any bruises at the time of the party, and that when the police mentioned the bruises to her when they spoke with her in early October, she told Aurora police investigator Karen Krass that she did not recall seeing any bruises. Smith testified that almost anything could have happened at the party and she may not have seen it. She noticed Jared's hands were red when his mother gave him some money and he reached out for it.
Smith recalled that some of the children stayed at the party until 7 p.m. When she first saw Jared at the party he came up to her and asked her where her son was, and she told him he was out on the playground. She did not see Jared leave. She said that none of the children complained about an accident. Over a defense hearsay objection she was allowed to testify that none of the adults talked to her about an accident on the playground. The six or seven adults who were at the party were there with their children; they were not there to help her. Only about two of the adults stayed.
Mary Schenk and her daughter, Carla Tackett, lived in a first-floor apartment at 811 Huntington Drive, Aurora, just beneath the apartment of Lester, Mary Jane Powell and Powell's two children, four-year-old Jared and Jamison, an infant. Tackett testified that she never saw Lester strike Jared. On the night of September 29, Schenk and Tackett were watching television in their living room when, at about 8:20 or 8:30 p.m., they both heard a noise from the upstairs apartment, sounding "like someone had dropped a bottle of milk or something on the floor." It was sufficiently loud that they both jumped up. A few seconds later, they heard the sound of something hitting the wall. Tackett recalled telling the police that it sounded like the kids were playing on their small trampoline upstairs; the noise she heard was like "clumps." After the second noise, Tackett got up, turned off the television, opened the window and opened the door to the hallway to hear if there were any sounds of crying. They heard no noise, and heard no other noises for the next two hours. The two women stayed inside their apartment, and Tackett subsequently retired about 10 p.m.
About 10:30 p.m. Schenk, who was watching the news, heard a pounding on her door. Looking through the peephole, she saw Lester, who was telling her to open the door because "[his] baby [was] sick." She opened the door and noticed that Lester was wearing only a pair of pajama bottoms, as was Jared. She said that Jared, who was being held by Lester, was not moving. Lester told Schenk that Jared had been at a party at McDonald's. He said repeatedly: "My baby is sick. My baby is sick." Schenk called for her daughter, and then got a blanket and wrapped it around Jared. She noticed the boy's eyes were open and cloudy; she did not see him breathing. Tackett was dressed within five minutes. She suggested calling 911 for help, but Lester insisted that they take Jared to the hospital themselves. Schenk saw Lester later that evening in the company of a police officer. Lester and the officer went upstairs and when they came down again, Lester tapped on her window, smiled, waved and said "Hello, Ma."
Before driving to the hospital, Tackett went with Lester and Jared to their upstairs apartment so that Lester could put on a shirt and pants and get Jamison. She said Jared never moved or made any sound. While upstairs, Tackett saw nothing out of the ordinary about the apartment. She did not remember everything the defendant said during the drive to Mercy Center Hospital. She did remember him mentioning food poisoning at McDonald's.
Later at the hospital, Lester telephoned Mary Jane Powell at her place of employment. Tackett said that he was too excited to speak understandably, so she was given the phone and she talked to Powell. Powell later arrived at the hospital, and after coming out of the emergency-room treatment area, appeared to Tackett to be "totally exhausted" and in shock.
Ellen Felix, an emergency-room nurse at Mercy Center, said a man came into the hospital carrying a child about 10:45 p.m. The child was not moving and had vomitus coming from his mouth. She thought the boy was dead. Felix was unable to identify the man in court; she recalled that his name was Chester Lester and that the boy's name was Jared Powell. Felix asked Lester what happened; she did not know if he said anything in response. She asked him who he was and Lester said he was the boy's father. She testified Lester hovered over the boy, asking "What's wrong with him[?] What's wrong with him[?] There's nothing wrong with him." After an emergency "code blue" was sounded, resuscitation was commenced. Felix described Lester as emotional and frantic. She yelled to her supervisor to call for pastoral care for Lester, whom she felt was "really losing it"; meaning that he was becoming hysterical, emotional, and frantic.
Felix characterized Jared as being "real dead"; he had absolutely no motion; his arms and legs were cold; he had "old vomitus that had been on him for awhile on his face"; he had a constant stare; no pulse and no carotid pulse; his pupils were fixed and dilated and there was a film over the portion of his eyes not covered by the eyelid. During the entire time he was being worked on in the emergency room, there was no response from the boy. After he was pronounced dead, the body was stripped of clothes and cleaned off. She observed that the body was covered with bruises; forehead, neck, flank area, rib area, legs, and his right testicle was swollen and discolored. She testified that the boy's mother, Mary Jane Powell, came in about 11:30 p.m. to view the body. She and the defendant talked. The defendant put his arm around her, and she flung around with her elbow extended. She was very upset, and someone from the hospital's pastoral care took her out of the emergency room.
David Blanchard, an emergency-room physician on duty at Mercy Center, attended to Jared at about 10:50 p.m. He described Jared as being in a flaccid state; there was no breathing or spontaneous heart beat. Lester told him Jared had eaten at a local restaurant and may have fallen and injured himself and stopped breathing and was rushed to the emergency room for treatment. Blanchard began cardiac resuscitation. After working on Jared for 15 or 20 minutes, he pronounced Jared dead. Blanchard never saw any signs of life from the child.
Blanchard testified that he observed "massive bruising" on Jared's body. He noted bruises on the chest, abdomen, back, buttocks, thighs, front and back of both legs, arms and face. He estimated, based on his experience, that the bruises would range in age from about 8 to 14 hours old. On redirect examination, Blanchard testified it was possible some of the bruises were fresher than eight hours old The child's scrotum was "ecchymotic" blackened as if full of blood and the testicles were swollen. There was a healed burn on the right hand. He observed what appeared to be a moderately deep 2- or 3-inch laceration on the back of the scalp which would have required stitches to close, and which appeared to be just a few hours old. Jared's stomach was swollen and distended, indicating the presence of "a considerable amount of blood" in the stomach. His opinion was that the most common cause of the bleeding could have been a blunt abdominal injury, a ruptured spleen or laceration of the liver due to blunt trauma. X rays indicated a couple of old rib fractures and an old, healed clavicle fracture. Blanchard's initial assessment was that Jared had been beaten to death. Blanchard explained that the bruises on the upper extremities, hands and thighs likely did not contribute to Jared's death. He also testified that the burn on the hand had been treated by Mercy Center on an earlier date.
Blanchard testified that when he first told Lester it looked like Jared had been beaten, Lester quickly denied responsibility. When Blanchard talked with him a second time, Lester mentioned disciplining Jared earlier that day on the buttocks; he denied beating the child. Lester put Jamison Powell, whom he had been holding, on a table, and asked Blanchard if he saw any bruises on him. Blanchard did not examine the baby.
Aurora police officer Diane Carlson was called to Mercy Center at 11:30 p.m. After talking with Tackett and Doctor Blanchard, she drove Lester to the police station, stopping first at his apartment to get some shoes and socks and to change his shirt. Carlson later returned to the defendant's apartment after Mary Jane Powell consented to a search. Patrolman Charles Lawrence collected items and took photos for use as evidence. Also present during the search were Detective Krass and Investigator Stover. Carlson observed a trampoline folded up between a couch and a wall in the front room. Patrolman Lawrence described Jared's bedroom as being "rather neat"; the bed was made and clean, although there was no pillow on it. There was a pillow in a "Charlie Brown and Snoopy" pillowcase on the bed in the master bedroom. Lawrence noticed possible blood stains on the item. A yellow sheet with Disney animals and possible vomitus stains on it was taken from the clothes hamper. Blue-checked top and bottom sheets taken from the master bedroom also had possible vomitus and blood stains on them. A piece of drywall with possible blood on it was removed from the hallway. A pair of men's blue pajama bottoms with stains on them were collected from the wash basket. Two pieces of tile from the floor in front of apartment A, directly below the defendant's apartment E, were taken. One had possible blood and vomitus stains on it. A piece of drywall with a stain on it was taken from the ceiling of the child's bedroom.
Karen Krass, an investigator with the Aurora police department, went to Mercy Center on the night in question and learned that Mary Jane Powell was the natural mother of Jared and Jamison Powell. Lester was Mrs. Powell's boyfriend and also the father of Jamison.
Krass first interrogated Lester at 7:30 a.m. on September 30 in a room at the Aurora police department, along with another police officer. She said Lester appeared to be in good condition, alert, rational, and seemed to understand the Miranda warnings. He told Krass that Mary Jane Powell took Jared to the party at McDonald's, then returned home and picked up Jamison and Lester and returned to the party sometime after 5 p.m. The party was running late, so Lester and Jamison stayed at the party while Mary Jane went to work. Lester recalled that Jared ate a cheeseburger, french fries and a piece of cake. He also told Krass that Jared "apparently had come down the slide and collided with one of the boys." She believed the ...