APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
513 N.E.2d 415, 159 Ill. App. 3d 612, 112 Ill. Dec. 1 1987.IL.1122
Appeal from the Circuit Court of Jefferson County; the Hon. Lehman Krause, Judge, presiding.
JUSTICE KASSERMAN delivered the opinion of the court. KARNS, P.J., and LEWIS,* J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN
Defendant, Jerry D. Williams, was convicted of cruelty to a child (Ill. Rev. Stat. 1985, ch. 23, par. 2368) and obstructing a peace officer (Ill. Rev. Stat. 1985, ch. 38, par. 31-1) after a jury trial in the circuit court of Jefferson County on October 22 and 23, 1985. Defendant was sentenced to imprisonment for concurrent terms of one year for cruelty to a child and six months for obstructing a peace officer, and he was ordered to pay $20 to the Violent Crime Victims Assistance Fund.
Defendant raises 10 issues on appeal. He contends that: (1) he was not proved guilty beyond a reasonable doubt of cruelty to a child; (2) he was denied a fair trial by the admission of and repeated reference to hearsay statements and because of improper closing argument on the part of the prosecutor; (3) the trial court erred in denying his motion in limine to bar evidence of his 1975 aggravated battery conviction; (4) he was denied a fair trial by the trial court's refusal to instruct the jury on the issue of self-defense; (5) he was denied a fair trial by the exclusion of photographs of his injuries; (6) he was denied a fair trial by the giving of a non-Illinois Pattern Jury Instruction stating that the absence of certain witnesses should not be held against either the State or the defendant; (7) the trial court erred in refusing to give the second paragraph of the circumstantial evidence instruction; (8) he was denied the effective assistance of counsel at trial; (9) the trial court improperly relied on hearsay in sentencing him; and (10) he is entitled to credit against the $20 fine payable to the Violent Crime Victims Assistance Fund. We reverse both convictions and remand for a new trial.
At trial, the State elicited the following testimony from four witnesses. On July 26, 1985, Mount Vernon police officer Albert Boyd was on foot patrol with Officer Paul Foster when the police department received an anonymous call that a child was being beaten at 631 Lamar Avenue in Mount Vernon. Officer Boyd testified that the officers went to the residence at approximately 11 p.m., and, after they had knocked several times on the door of the residence, defendant answered. Boyd testified that, after he explained he was investigating a report of a child beating, defendant stated: "Yes, I beat him" or "Yes, I hit him." According to Boyd, defendant stated that the officers could not enter without a warrant. Boyd was of the opinion that defendant was intoxicated and stated that defendant was loud and abusive. When defendant started to close the door, Boyd told defendant they didn't need a warrant and the officers went in behind him. A young girl, defendant's daughter, Jackie Williams, was sitting on the sofa and directed the officers upstairs. Boyd testified that as he tried to explain the situation to defendant, defendant walked up to him and called him names and pushed him by bumping the officer with his chest. Officer Boyd related that he took the defendant "down to the sofa with my hands around his neck." Upstairs the officers found Jerry Sanders, defendant's son, age 10 or 11, lying on a bed wearing only undershorts. Boyd testified that the bed appeared to be broken, the boy was sweating and crying, and his left eye and ear were swollen.
The boy was later taken to the hospital and released. There was no bleeding and no bandages were applied. Later it was discovered the boy had bruises on his buttocks that appeared to have been incurred previously. The record includes photographs of the boy's head, taken July 27, 1985, which indicated slight discoloration and swelling of the left eye.
Officer Foster's testimony differed in some respects from Boyd's. Foster testified that defendant stated he was "spanking his child." Foster corroborated Boyd's testimony that defendant verbally insisted that the officers could not come in without a warrant. Foster testified that the officers walked in anyway without any resistance from defendant. Foster testified, however, that once they were inside, defendant left through the back door while the officers went upstairs to find the boy. The boy was crying and his left eye was swollen. Foster went back downstairs and defendant reentered the residence with his wife, Clara Sanders. Boyd came downstairs shortly thereafter, at which time the confrontation ensued. At this time the officers were attempting a conversation with defendant's wife. Foster testified that defendant appeared to be intoxicated, became very upset and abusive, and then pushed Boyd with his chest. Boyd then "subdued him to the couch."
Mount Vernon patrol captain Robert Smith testified that he was summoned to 631 Lamar shortly after 11 p.m. on July 26, 1985. He observed that the youth in question was crying and his left eye was swollen. He also testified that defendant complained of physical injury at that time and that defendant asked to go to the hospital.
Mount Vernon police officer Carl Williams testified that he took the photographs of the boy in the early morning hours of July 27, 1985. He stated that he was attempting to show the swelling of the boy's right ear and his left eye. Williams also testified that he took a statement from the boy at that time. Officer Williams related the circumstances surrounding the taking of the statement, including the fact that the statement had been taped and that the boy's mother did not object to the taking of the statement. Williams testified that he arrested defendant on the basis of information provided by the boy, his sister and the officers and based on his own physical observations.
The defendant was the only defense witness. He testified that he resided with his sister a few doors from 631 Lamar because he sometimes had problems with his wife. He is the natural father of the two children, Jerry Sanders and Jackie Williams, who were ages 11 and 13, respectively, at the time of trial, although he did not marry Clara Sanders until 1984. He admitted that he had been convicted in 1975 of aggravated battery.
Defendant testified that on the night of the incident he was with his wife at his sister's residence when his wife asked him to check on the children at 631 Lamar. After discovering that his son was not at home, he went looking for him and found the boy a few blocks away with three or four other children. Defendant testified that the boy was not crying at that time and that he could not see the boy's ear or eye clearly. He testified that he told the boy to go into the house, that he locked the doors to the car, and that he went in the house and directly to the bathroom. It was then that his daughter yelled up to him that someone was at the door. Defendant testified that he did not see his son from the time he sent him into the house until after the officers had seen him. He testified that he told the officers that he had "spanked" his son, not that he had beat him, but he explained that the spanking had occurred about two hours earlier, after the boy had gotten into a fight and torn a screen off of a neighbor's door. Defendant also admitted telling the police that they couldn't come in without a warrant. He testified that Officer Boyd pushed him aside and came inside anyway. Defendant's testimony was consistent with Officer Foster's (and contradictory to Officer Boyd's) in that defendant testified that the confrontation between him and Officer Boyd took place after defendant had gone to get his wife and after the officers brought his son downstairs and stated they were taking him away. According to defendant, he insisted that the boy was not hurt bad and that there was no reason to take the child away, but Boyd insisted and got angry. Defendant testified that he previously "had some words" with Boyd concerning defendant's wife and Boyd had "mentioned whooping me." Defendant then testified: "Officer Boyd -- after we was talking he just all of a sudden grabbed me by the neck and he choked me." Defendant stated that he lost consciousness for a few minutes and was bleeding from his neck. He was later taken to the hospital in a police car.
Defense counsel asked defendant to identify photographs of defendant taken after his visit to the hospital, but the trial court sustained the State's objections to any testimony concerning the photographs on relevancy grounds.
Defendant conceded that his son's ear appears slightly swollen in the photographs but denied knowing how it happened. He stated that his son had previous problems with his ear and that the ear sometimes swells from ear infection. Defendant admitted having spanked his son in the past, over the boy's undershorts, with a belt.
As his first issue, defendant urges that he was not proved guilty beyond a reasonable doubt because there was insufficient evidence that defendant struck his child on the eye or ear or that the child's health was injured.
When presented with a challenge to the sufficiency of the evidence, the question is whether, when all of the evidence is considered in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) We conclude that there was sufficient evidence in ...