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February 3, 1994


Appeal from the Circuit Court of Cook County. Honorable Michael C. Close, Judge Presiding.

Released for Publication March 18, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Cahill, Johnson, Hoffman

The opinion of the court was delivered by: Cahill

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

The State charged defendant Silvia Negrete with attempted murder, aggravated battery, heinous battery, and cruelty to children for the scalding of her seventeen month old son. After a bench trial, she was convicted of heinous battery and sentenced to 45 years in prison. We affirm the conviction, but remand for a new sentencing hearing.

On May 16, 1990, defendant called an ambulance to her home, claiming that her son Luis was accidentally burned by hot water while receiving a bath in the kitchen sink. Although defendant told doctors Luis had been left alone in a sink with lukewarm water running, several doctors suggested that Luis's burns were the result of child abuse. Eventually, defendant was arrested and charged. Defendant waived her right to a jury trial.

Demetra Soter, a board certified pediatrician, testified at trial that she examined Luis while he was in the intensive care burn unit. Luis suffered second and third degree burns over 60% of his body, including his chest, genitals, back, and one leg. He was also emaciated and roughly the weight of a six month old child. Dr. Soter concluded from Luis's appearance that he was malnourished, essentially suffering from starvation. She also stated that when she first saw Luis in the intensive care unit, he was not expected to survive.

Dr. Soter testified extensively about the nature of Luis's burns. The pain caused by these burns was characterized as "terrible", "excruciating", and "incredible." She testified that even children several months old will make an effort to escape from very hot water. The typical accidental hot water burn includes edges of burned area which are wavy as well as numerous splash marks: evidence of attempts to avoid the hot water. She emphasized that on Luis's body, however, there were clear, straight lines of demarcation between burned and unburned skin. She also noted virtually no evidence of burns caused by water splashing onto Luis's body.

Dr. Soter also testified that Luis's level of mental and physical development observed in the hospital was inconsistent with the possibility that Luis turned on the hot water himself while in the sink. Observation of Luis revealed that he was unaware of or unable to turn a spigot on a toy sink.

Dr. Soter concluded to a reasonable degree of medical certainty that Luis's burns were caused by someone holding him in a lateral position under a non-forceful flow of extremely hot water. Dr. Soter also testified that Luis's burns will result in permanent scarring across sixty percent of his body. The burning of Luis's genital region also may result in permanent damage to his reproductive capacity.

The State called Dr. Marrilee Brandt, the resident on call the night Luis was admitted to the hospital. Dr. Brandt testified about the medical procedures used when Luis was admitted. She made an extensive analysis of Luis's burns. Dr. Brandt corroborated the testimony of Dr. Soter, concluding to a 98% certainty that his burns were not the result of an accident.

The defense presented the testimony of Angelica Negrete, defendant's sister. She stated that defendant was not known to be cruel to her children and was a good mother. She denied telling investigators that defendant tried to smother her children with pillows. She admitted accusing defendant on the day of the incident of deliberately scalding Luis. Angelica claimed, however, that this remark was a lie motivated by anger over an argument earlier in the day with the defendant.

On cross examination, Angelica admitted telling investigators that when defendant was pregnant with Luis, defendant discussed an abortion with her and their mother. She also admitted telling investigators that defendant tried to smother Luis with a pillow because defendant did not want him. She explained that she was lying to the investigators when she made this statement because she was still angry from the argument with defendant.

Defendant testified that on the day of the incident she was caring for Luis and his sister Gina, as well as her sister Angelica's two children. She decided to give Luis a bath. She put him in the sink and turned the water on. Both the hot and cold taps were open, resulting in a lukewarm flow. After leaving to get a towel, she decided to make the bed while the sink filled. After approximately six minutes, she heard Luis screaming and returned to the kitchen. Luis's skin was red and the water appeared to be very hot. She removed him from the sink and placed him on a bed. Later, she called an ambulance. She testified that she believed Luis was strong enough to turn off the cold water or to open the ...

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