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04/12/89 the People of the State of v. Brian Mcdonald

April 12, 1989







PRESIDING JUSTICE FREEMAN delivered the opinion of the court. RIZZI and WHITE, JJ., concur.


Defendant, Brian McDonald, was convicted by a jury of the aggravated battery and murder of his four-year-old stepdaughter, Nicole, and the aggravated battery of his two-year-old stepdaughter, Danielle. He was sentenced by the trial court to an extended term of 60 years for the murder of Nicole and a concurrent term of seven years for the aggravated battery of Danielle. He appeals his conviction for murder and the sentence imposed thereon.

The offenses in this cause relate to occurrences in February and May 1985. However only the May occurrences are relevant to this appeal. On May 3, 1985, Nicole and Danielle were in good health while at their baby-sitter's residence. As was his custom, defendant picked the girls up after work. As was her custom, Danielle cried when defendant picked her up. Defendant admitted at trial that he clapped Nicole in the face on the way home from the baby-sitter's because she wet her pants and because he suspected her of bruising Danielle's cheek. When defendant arrived home with the girls, defendant's wife and the girls' natural mother, Kathy McBride, noticed a bruise on Nicole's temple. When Kathy questioned defendant about the bruise, he told her that it must have happened at the baby-sitter's. When Kathy asked Nicole about the bruise, the child covered her mouth and looked scared. At this time, Nicole was also looking at defendant, who was standing in the doorway while Kathy was talking to Nicole.

On May 4, 1985, a Saturday, Kathy had to work. Defendant remained home with the girls. When defendant served them breakfast, Danielle spit her cereal out. Defendant admitted hitting her in the mouth for doing so. Later, defendant questioned Nicole about the bruise on Danielle's face, which he had seen the night before, and "asked her why she was doing the things that apparently had been going on, because [he] was getting blamed for a lot of it." When Nicole repeatedly said that she was sorry, defendant said "I know you are sorry, but why, what is happening, what is going on." Defendant then took Nicole by the arm and hit her twice on the side of her stomach. Defendant stated that he may have raised her off the floor as he struck her. Nicole then fell to the floor "right in front of" a dresser and struck her head. Kathy stated that the defendant called her at work at about 11 o'clock and told her that Nicole had run into a dresser and had a bruise on her back. Kathy also talked to Nicole, who said she was fine. Defendant admitted that during the day, however, Nicole complained that the side of her stomach hurt and that she threw up some soda pop he had given her.

Moreover, after Nicole's death, defendant allegedly admitted to the police that Nicole had not hit her head on a dresser as he claimed. He told the police that he picked Nicole up as high as his head after striking her in the stomach and threw her straight down to the floor. He also told the police that Nicole may have landed on her head.

When Kathy came home from work, she noticed that Danielle had a bruise under each eye, that her eyes were blackened, that her nose was discolored and swollen, her lip was cut and her hair was up in a pony tail. Kathy asked defendant about Danielle's injuries and defendant stated that, when he went into the bedroom to get the kids in the morning, he noticed that Nicole had kicked Danielle in her sleep. Defendant testified to the same effect. Kathy stated that defendant had not mentioned Danielle's injuries when he called her at work. Kathy then checked on Nicole who was lying very still in bed, next to a bucket of green vomit, and noticed that she had a bruise on her back. Defendant made some strawberry margaritas and took Kathy into their bedroom.

The next day, Nicole threw up aspirin which Kathy, thinking she had the flu, had given her. Kathy told defendant she wanted to take Nicole to the doctor but defendant said the child just had a bad flu. Later, Kathy decided to take Danielle to a family barbecue. When she took Danielle's hair out of the ponytail to fix it, Kathy noticed that she had two patches of hair about an inch and a half in diameter missing from her head. The hair appeared to have been pulled out. Kathy did not notice any hair missing from Danielle's head when her hair was down on Saturday morning. Defendant told Kathy he did not know what had happened to Danielle's hair.

When Kathy returned from the barbecue with Danielle, she asked defendant what he was doing to the girls. He responded that he was not doing anything to them and that Kathy's family was "feeding [her] information, putting the blame on [him]." Later, when Kathy was getting Danielle ready for bed, she heard Nicole, who had been on the couch earlier, scream. Kathy ran into the living room and found defendant standing over Nicole, who was crying. When Kathy told him to leave Nicole alone and to leave the room, defendant said he was not doing anything to Nicole. Kathy returned to Danielle in the bedroom and then heard Nicole scream again and say, "don't hurt me." When Kathy returned to the living room, she again found defendant standing over Nicole. Defendant again denied doing anything to the child. After defendant left the room, Nicole told Kathy that her stomach hurt. During the remainder of the evening, Nicole was very quiet.

When Kathy awoke the next morning and found Nicole still very quiet, she called her mother, who called the paramedics. Before the paramedics arrived, Kathy gave Nicole an alcohol sponge bath, in hopes of reducing her fever. When Kathy gave Nicole the sponge bath, Nicole was lifeless. The paramedics arrived shortly after Kathy's mother, who had tried to revive Nicole with mouth to mouth resuscitation. The paramedics pronounced Nicole dead. Thereafter, they transported Nicole's body to Edgewater Hospital.

Police officers were assigned to investigate Nicole's death almost immediately. Detective Richard Mariner viewed Nicole's body at the hospital. He noted the following injuries to Nicole: a large bruise on the left cheek; a blackened left eye; a quarter-inch laceration near the left side of her jaw; a large bruise at the waist, in the center of the left lower back; bruises on and around the left elbow; a bruise to the right elbow, a bruise on the right shin; and dried blood in both nostrils.

On appeal, defendant first contends the State denied him a fair trial by failing to tender to the defense a copy of an abuse and neglect petition allegedly pending "against" Kathy at the time of trial. Defendant notes his discovery request for information of any State action pending against any of its witnesses. Defendant argues that if he had known of the petition, he could have argued Kathy's bias to the jury. Relying on the fact that the jury had been instructed on the offense of involuntary manslaughter and the jury's recommendation during its deliberations that manslaughter charges be ...

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