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09/28/89 the People of the State of v. Michael T. Sandy

September 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL T. SANDY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

544 N.E.2d 1248, 188 Ill. App. 3d 833, 136 Ill. Dec. 473 1989.IL.1541

Appeal from the Circuit Court of Vermilion County; the Hon. Ralph S. Pearman, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Defendant appeals, arguing: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred in refusing his instruction defining "knowingly"; (3) the trial court erred in refusing to instruct the jury that involuntary manslaughter is an included offense in felony murder; (4) verdicts of guilty of felony murder based upon aggravated battery and not guilty of murder are legally and logically inconsistent; and (5) testimony concerning "Tin Ear Syndrome" was improperly admitted.

We affirm.

On January 13, 1988, an information was filed charging Michael Sandy, defendant, with several offenses in connection with the death of H.N. At trial, Robert Huff, a Danville police officer, testified that on January 11, 1988, at 5:45 p.m., he responded to an emergency call. When he arrived at the scene, Huff saw defendant and a child, who was not breathing. While en route to the hospital, defendant said he had not meant to do it. He went out to get a Coke, and when he came back to the bedroom, H.N. was lying on the floor. Defendant told Huff the child bruised easily. Huff observed a large bruise underneath H.N.'s chin and a bruise on her arm. At the hospital, defendant told Huff that Lisa Norman, H.N.'s mother, went to pick up dinner. H.N. made faces at defendant, so he went into the bedroom to reprimand her. He shook her, then went to get a soft drink. When he reentered the bedroom, she was lying on the floor.

Gene Woodward, an investigator with the Danville police department, arrived at St. Elizabeth's Hospital at 6:10 p.m. He talked to Huff; then looked at H.N. at 6:15 to 6:20 p.m. Woodward noticed bruises on H.N.'s right eye, both cheeks, left ear, her chin, back of the neck, chest between the nipples, above her navel, both arms, the cheeks of her buttocks, and the area between both of her buttocks.

Michael J. Meinzen, director of the trauma center at St. Elizabeth's Hospital, testified that at 5:50 p.m. he began treating H.N. She had no movement, no pulse, and was not breathing. Her skin appeared pale and bluish in tint. After four minutes, the emergency team had reestablished a heartbeat. Meinzen wanted to account for bruises not caused by his team's effort to revive H.N. He noted a bruised jaw, belly, behind the left ear, and buttocks. Notations were made of these bruises within two minutes of resuscitating H.N. Because of the bruises, he thought there might be a head injury. The bruised left ear led him to believe she had received a blow to the head. H.N.'s physical reactions indicated increasing pressure on the brain and damage to the brain on the opposite side from the bruising. Meinzen believed she received a blow to the left side of the head.

Meinzen talked to defendant, who told him H.N. had a tantrum whenever her mother left. When her mother left to get food that evening, H.N. was screaming. H.N. bruised easily after her last surgery so he did not spank her. He took her to the bedroom, shook her to get her to stop screaming, and made her stand in a corner. When he returned to the bedroom, H.N. was twitching on the floor.

Meinzen stated shaking could have caused the trauma. The markings on the left ear were medium-sized bruises. However, Meinzen would not disagree with those who classified them as large bruises. It is possible that all of the trauma could have resulted from a single blow to the left ear. It could also have come from shaking. It was impossible to answer with certainty that a shaken child would have equal-sided brain disfunction. H.N. developed disseminated intravascular coagulation subsequent to the trauma. This means her blood would not clot. A small injury, therefore, could result in larger bruises. Given that H.N. was a frail child, any attention-getting sort of shake could lead to injuries.

Lawrence Rossi, director of pediatric intensive care at St. Francis Medical Center in Peoria, flew to Danville on January 11, 1988, and eventually transported H.N. to Peoria. H.N. was critically ill and exhibited symptoms of increased pressure on her brain. Rossi was not concerned that H.N.'s prior heart condition caused the problem. Tests conducted at St. Francis indicated abnormally high intracranial pressure and bleeding problems. Rossi determined H.N. was clinically brain dead.

Rossi believed a blow to the head had caused H.N.'s symptoms. He stated her physical reactions, the bruised left ear, and the initial nonglobal edema indicated a direct blow. It was more probable than not that H.N. received a direct traumatic blow to her ear, rather than being shaken. Rossi could not eliminate the possibility of a combination of a blow and shaking, but stated the major traumatic event seemed to be a direct blow. Rossi further stated that swelling of the brain occurs as a result of "Shaken Child Syndrome." Rossi admitted shaking could not be positively ruled out as a potential cause of H.N.'s death.

William Albers, H.N.'s cardiologist, stated H.N. was born with a serious heart defect. She had surgery at four weeks old and open heart surgery in August of 1987. Albers last saw H.N. in October of 1987. She had made an excellent recovery from her surgery. Her pre-existing heart condition was not related to her head injury or her death. Her heart did not trigger any injury to her brain.

Phillip Immesoete, the coroner's physician for Peoria County, testified H.N. died on January 12, 1988, at 2:30 p.m. He performed an autopsy the next day. Brain swelling caused herniation of the brain to the foramen magnum, the opening in the skull, resulting in death. In Immesoete's opinion, H.N. had been shaken, causing her death. However, he could not rule out the possibility of a blow to one side of her head.

A tape-recorded statement, which defendant made on January 11, 1988, was introduced. Defendant stated he disciplined H.N. by shaking her and making her stand in a corner. He did not beat, hit, or batter H.N. He was upset on January 11, 1988, as he had not visited with his natural daughter, who had the same first name as H.N., he was unemployed, his unemployment compensation had run out, and Lisa had lost her job. H.N. screamed whenever her mother, Lisa, left. On January 11, 1987, Lisa left to pick up dinner. H.N. started to cry and make faces. Defendant followed her into her bedroom to talk to her, but she would not answer him. He then shook her by the arms no more than five times and told her to answer when she was asked something. Her head did not ...


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