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05/04/89 the People of the State of v. Leroy Scott Osborne

May 4, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LEROY SCOTT OSBORNE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

538 N.E.2d 822, 183 Ill. App. 3d 5, 131 Ill. Dec. 447 1989.IL.668

Appeal from the Circuit Court of De Witt County; the Hon. Donald R. Parkinson, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. LUND and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

On January 13, 1988, the defendant Leroy Scott Osborne was indicted by a grand jury in De Witt County for the offense of first degree murder in the death of Joshua Wayne Reynolds. Ill. Rev. Stat. 1987, ch. 38, par. 9-1(a)(2).

At trial the following evidence was adduced. The defendant testified that on August 7, 1987, he was employed and resided in Clinton, Illinois. He was divorced and had full custody of one child and joint custody of his other child. After getting off work on August 7, the defendant picked up his girlfriend and her two children, Joshua, nine months old, and Amber, four years old, and took them to his house in Clinton. He then left the home to perform some errands while his girlfriend Melissa stayed with his children and hers. Upon his return, he checked on the children and saw they were sleeping, but a short time later the defendant heard Joshua crying. Defendant testified he picked the child up, held him for a few minutes, laid him back down in the bed but the boy began crawling toward the edge of the bed.

The defendant, realizing Joshua would not remain in bed, took a piece of cloth and wrapped it around the child's right arm, across his back, and then around his left arm, in order to keep the child where he was placed. The defendant testified he then realized Joshua was not going to stop crying. He took an ace bandage and wrapped it around the child's head twice, covering the mouth. The bandage was not covering the child's nose. The defendant testified the bandage muffled the child's crying but did not impair the child's breathing to any notable degree.

The defendant stated he then left the bedroom and talked on the phone for several minutes. At the Conclusion of the phone call, the defendant joined his girlfriend in his bedroom and informed her that he had wrapped Joshua's mouth because of the loud crying. He then performed carnal intercourse with her. Shortly afterwards, the defendant thought he heard a noise from the children's bedroom. Thinking it was the cat, he went into the bedroom and noticed Joshua was lying on his stomach with his face to the mattress. He went to unwrap Joshua's mouth and found the child was very limp. He then realized Joshua was not breathing and attempted cardiopulmonary resuscitation. The defendant alerted his girlfriend and together they took Joshua to the John Warner Hospital. Upon arrival at the hospital, the coroner was notified and took possession of the body.

The defendant also testified the practice of "wrapping" the children had come from Melissa. He stated he believed the ace bandage was porous enough to be able to breathe through. Melissa Reynolds denied the idea of "wrapping" the children came from her. However, Officer Lonbom, of the Clinton police, testified Melissa had told him she had a practice of using ace bandages to wrap the children at her home and she would sometimes "wrap" Joshua's mouth if he kept crying.

The State presented the testimony of Dr. Jordan L. Mann, who performed the autopsy on Joshua at Memorial Medical Center in Springfield. Mann is a pathologist at the Medical Center and teaches at the Southern Illinois University School of Medicine. Mann testified that based upon his findings in the autopsy alone, the cause of death was undetermined. Dr. Mann stated that he had received information that Joshua had received a diptheria, pertussis, and tetanus vaccination three days prior to the death, studies had shown some children experienced severe reactions to the vaccination and a possible relationship between the vaccination and sudden infant death syndrome had been reported. He also testified one of the findings during the autopsy was a mild astricidic proliferation and a single focal cavatory lesion in the brain stem. He noted this was also frequently present in cases of SIDS.

The State next presented the testimony of Dr. Millard Bass, an osteopath physician and forensic pathologist from New York. Dr. Bass testified he made his determination of the cause of death based on the assumption the bandage covered the child's mouth and nose. This assumption was made on the basis of the size of the bandage and the child's face. Based on the autopsy findings alone, not considering any extrinsic information, he would agree with Dr. Mann's Conclusion that the cause of death was undetermined. He stated the child might very well have been able to breathe through the ace bandage wrapped over his mouth. On further cross-examination, the doctor testified as to the authority of several studies concerning SIDS and linking SIDS with DPT vaccinations.

The State also called Dr. Enid Gilbert, a pathologist from the University of Wisconsin and the teacher of Dr. Mann. Gilbert testified the child died of suffocation. She acknowledged that from the autopsy findings it was impossible to tell whether the child stopped breathing from having the ace bandage over his mouth or if the child stopped breathing from lying face down. She also concurred with the other two doctors that from the autopsy report alone, suffocation and SIDS would be indistinguishable. She testified she was aware the child had received a DPT vaccination within two or three days of his death and she was aware of the studies linking the vaccination with SIDS. She also testified about recent studies refuting the connection between the vaccination and SIDS.

On June 29, 1988, the defendant was found guilty of involuntary manslaughter. On August 10, 1988, a sentencing hearing was held. The court, after reviewing the evidence and mitigating factors and stating it was considering a sentence which would not deprecate the seriousness of the crime, sentenced the defendant to four years in the ...


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