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05/29/87 the People of the State of v. Dale Wachal

May 29, 1987





509 N.E.2d 648, 156 Ill. App. 3d 331, 108 Ill. Dec. 952 1987.IL.715

Appeal from the Circuit Court of Cook County; the Hon. Gerald T. Rohrer, Judge, presiding.


JUSTICE MURRAY delivered the opinion of the court. LORENZ, J., concurs. JUSTICE PINCHAM, specially Concurring.


In these consolidated cases, defendant Dale Wachal appeals his conviction for involuntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9-3(a)), his sentence of five years' imprisonment and a $5,000 fine (cause No. 85-783), and the trial court's denial of his "Petition for a New Trial Based on Newly Discovered Evidence and Additional Grounds" (cause No. 85-2164). He contends (1) he was denied his right to a fair trial because the trial court erroneously admitted evidence of other crimes, (2) the trial court erroneously admitted numerous photographs and slides pertaining to the other crimes, and (3) his sentence was excessive.

The record discloses that defendant, his girlfriend, Cindy Lou Walker, and her 16-month-old son, Shawn, shared a townhouse located on the grounds of the Glenview Naval Air Station, where defendant, a naval serviceman, was stationed. On December 20, 1983, while defendant and Walker were having dinner, Shawn, who was upstairs in his bedroom, began to cry. Defendant went upstairs, laid the child down in his playpen, and gave him a bottle which he found lying on the floor. He then went downstairs and told Walker what he had done. Walker told defendant that the bottle he had given Shawn was "no good." Defendant then prepared another bottle and took it upstairs to Shawn. While he was in the room, he noticed that the playpen was "broken." After removing Shawn from the playpen, defendant began making repairs. While doing so, Shawn approached him, crying. Defendant then "swept the back part of his arm and fist to the right" and hit Shawn "somewhere between his chest and stomach area." Defendant "believed" Shawn hit his head on the bedroom door approximately six feet away. On hearing Shawn fall to the floor, defendant glanced at Shawn, surmised he was not hurt, and then returned to repairing the playpen.

Shortly thereafter, defendant heard Shawn gasping for breath. Defendant picked him up and began to slap him on his back in order to help him breathe. Shawn began gasping less frequently, began to go limp, and apparently stopped breathing. Defendant then carried him downstairs and took Shawn, along with Walker, to a clinic approximately five blocks away, where he received emergency medical treatment. Shawn was subsequently taken by ambulance to Glenbrook Hospital in Glenview and then transferred to Evanston Hospital for continued treatment. He remained comatose and, on January 13, 1984, he died, never having regained consciousness.

Prior to Shawn's death, defendant was arrested and charged with aggravated battery to a child, aggravated battery, and battery. After Shawn's death, defendant was indicted for murder and endangering the life of a child. *fn1

At trial, witnesses testified to observing 27 bruises and 4 bite marks on Shawn's body. Numerous photographs and slides were admitted to show the nature, location, and extent of the bruises. The State also introduced into evidence several statements made by defendant to the police and hospital staff in which defendant stated he had struck Shawn several times in the past. Defendant testified that his past acts towards Shawn were nothing more than spankings as a means to discipline him, that he bit Shawn on the arm on one occasion because he was angry with him, and that Shawn's death, as a result of his last act, was accidental. Based on the evidence, defendant was found guilty of involuntary manslaughter, sentenced to five years' imprisonment, and fined $5,000. Defendant's subsequent post-trial motions for a new trial, judgment notwithstanding the verdict, and motion in arrest of judgment were denied.

On appeal, defendant first argues that he was denied a fair trial because the trial court improperly permitted the State to introduce evidence of other crimes, i.e., the admittedly prior abuse of Shawn indicated by the numerous bruises and four bite marks appearing on his body. The State argues that this evidence was properly admissible for the purpose of establishing defendant's intent or mental state, at the time of the fatal blow to Shawn, based upon a pattern of abuse.

Although evidence of other crimes is not admissible to show an accused's propensity to commit a crime (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238), such evidence is admissible if it is relevant for other purposes, such as to show intent, identity, motive, modus operandi, or absence of mistake (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200). In fact, the range of purposes for which other crimes evidence may be admitted is almost infinite. (People v. Triplett (1981), 99 Ill. App. 3d 1077, 425 N.E.2d 1236.) Evidence of other crimes cannot be admitted, however, unless it is first shown that a crime actually took place and that the accused committed it or participated in its commission. (People v. Miller (1977), 55 Ill. App. 3d 421, 370 N.E.2d 1155.) Additionally, once such a foundation is established, a trial court must determine whether the probative value of the evidence is outweighed by its prejudicial effect. People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.

In the instant case, as mentioned above, the State presented evidence of the prior physical abuse suffered by Shawn for the purpose of establishing defendant's intent or mental state. Although defendant concedes that Shawn was a victim of child abuse, he argues that admission of the evidence of the prior abuse was erroneous because the State failed to meet its burden of proving, by more than mere suspicion, that he committed the abuse. We disagree. By his own admission, defendant stated he had hit Shawn on a number of occasions:

"[In April or May 1983] I slapped him [with an open hand] in the face one time just after I met Cindy. I know that in my mind I thought I was disciplining him, but I realize that I hit him too hard, um, I believe. . . . [There] was a red mark at the time . . ..

I have disciplined Shawn in the past by hitting him on the butt. Um, I do recall a few times when he would be laying in front of a VCR I lent Cindy . . . when I believe I struck him too hard. I don't believe he was hurt other than externally or other than very very minor hurt when I did hit him.

Last Friday [December 16, 1983,] I hit him, he was turning up the volume of the TV when I came downstairs, and he didn't see me coming. He didn't see that I was going to hit him. And I hit him on the butt and he went forward and kind of glanced off the table and the TV and hit his face on the corner of the table and then fell to the ground in front of it. . . . [Later,] I explained to [Cindy] that I had hit Shawn and he had fallen and that I would appreciate her coming home soon, that way she could look at him and make sure he was all right. . . . I didn't undress him so I didn't notice any marks on his body, but on his face, he had a red mark that looked like there was a -- probably a little bit bigger than a quarter or maybe a half dollar and inside of it, there was like a prick mark where it might have just barely broke the skin and bled just a fraction and then quit. Just enough to make it look bad. [In the days after] that mark turned into a bruise.

I did bite [Shawn] once. I believe it was either Saturday the 17th or Sunday the 18th [of December, 1983]. . . . I had taken Shawn away from his mother to take him up and put him in his crib, and he was crying -- borderline on screaming, . . . and we were walking up the stairs and I guess my anger got the best of me again, and I bit him on the arm that he had in front of my face because I was holding him with both hands. . . . There were teeth marks and it was red and I noticed later in the evening [that they turned into a bruise].

[On December 20, 1983,] I just used the wrong means [hitting Shawn] due to my anger. I thought I knew I done wrong. I knew I hit him way too hard. . . . I should've pushed him out of the way and I hit him instead. And to me, that was using far excessive force for that." (Emphasis added.)

With respect to the last incident, defendant also stated that the blow, although it would not have knocked over a grown man, was forceful enough that the ...

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