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May 19, 1994



The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Randy Banks, was convicted of the murder of 16-month-old Veronica Hurley. (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(1).) The jury found defendant eligible for the death penalty based upon the statutory aggravating factor of murder of an individual under 12 years of age that resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(b)(7).) The same jury then found insufficient mitigating factors to preclude the imposition of the death sentence. Accordingly, the trial Judge sentenced defendant to death.

Defendant's sentence has been stayed pending direct review by this court. (Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rules 603, 609(a).) For the reasons that follow, we affirm defendant's conviction and death sentence.


The record reveals the following pertinent facts. From September through December of 1986, Elaine Hurley and her three children, Victoria, age 5, Victor, age 2 1/2, and the 16-month-old victim lived with defendant in a four-bedroom apartment in Chicago. Defendant is the biological father of Victoria and Victor; however, he was not the father of the victim. After Hurley moved into the apartment, she worked full time as a cashier at a fast-food restaurant to support the family, while defendant stayed home and watched the children.

Hurley's testimony at trial established that the three children suffered from repeated acts of physical abuse and cruelty during the four-month period in which they lived with defendant. The children slept together in a very small bedroom with one window. The room contained only the following furnishings: a mattress, pillow, toilet-training chair, and crate. There were no toys or blankets. The victim generally wore only a thin tee-shirt and a diaper. Victoria and Victor were naked approximately 90% of the time despite Victoria's continuous requests for clothes. Once it became dark outside, the children's room also remained dark because defendant refused to allow any lights in that room.

The apartment was unheated except for a space heater located in the living room where defendant and Hurley slept. According to Hurley, the children's room became so cold that you could see "the breath come out of your mouth." During the times that Hurley slept with the children in the bedroom, she wore her coat because it was so cold. Nevertheless, defendant opened the window in the children's room three or four times each week so that he could air the room out. Victoria testified that she would curl up with Victor and the victim so that they could try to stay warm.

Hurley testified that defendant determined when the children would be fed. Defendant told Hurley, "These are my kids; I know what I am doing." Victoria and Victor were fed only lunch meat or peanut butter and jelly sandwiches approximately two or three times per week. When Victoria begged defendant for food or clothing, he would beat her with a belt. On the days when the children received nothing to eat, Hurley would attempt to sneak food to them. However, if defendant caught Hurley sneaking food to the children, he would beat her. Victoria testified that she would sneak into the kitchen to get food at night after defendant fell asleep, which she would share with Victor.

Hurley prepared Similac, an infant formula, for defendant to feed to the victim while she was at work. However, three or four times per week she would return from work and find most of the formula where she had left it and consequently fed the baby herself. The baby would "gobble" the formula, and when defendant saw this he would take the food from her, contending that the baby was "acting like an animal."

According to Hurley, the children never left the apartment. The victim could crawl when she first moved into the apartment. However, as the victim's strength decreased, she no longer crawled. The victim lay on a pillow on the floor of the bedroom. Victoria was only allowed to leave the bedroom if she had to go to the bathroom. Victor was allowed to leave the bedroom only once or twice during the four-month period. Defendant refused to allow Hurley to take any of the children to a doctor. When Hurley argued with defendant over this issue, he struck and threatened to kill her.

Defendant demanded that Hurley turn over her paycheck to him, as he controlled the family's money. Hurley did not mention the physical abuse to anyone at work because she was afraid that defendant would kill her mother and the children. Each day defendant sent Hurley to purchase enough food for the family for that day; however, he ate most of the food himself. He hid the remainder of Hurley's earnings in various places in the apartment.

Defendant forced Victor to sit on the toilet-training chair throughout the day and night. Defendant provided a crate for him to lay his head on when he slept on the chair at night. If Victor left the chair, defendant would whip him by holding him up by one arm and striking him with a belt. The diaper that Victor wore came off, and the belt hit his penis, which then started bleeding. Hurley described Victor's penis and testicles as bleeding, filled with pus, and swollen. The average beating consisted of over 10 blows, and occurred weekly.

Victoria received beatings from defendant approximately three times per week. Defendant struck Victoria more than 10 times in each beating, using either a belt or a "stick," which she described as a two-by-four board. He struck her arms, back, legs, and buttocks, sometimes over 20 times during the beating. Defendant once knocked Victoria unconscious for over 10 minutes.

Victoria testified that her mother never beat her during that time. Her mother tried to help the children, but defendant continually prevented Hurley from doing so. Victoria also testified that defendant once sat her in a hot skillet on the stove, and that she suffered severe burns because of that episode.

The incidents of abuse culminated on the evening of December 22, 1986. When Hurley returned home from work that night, the victim refused to eat, and was lying very still. She dressed the victim and took her to the University of Illinois Hospital. Before Hurley left for the hospital, defendant told her to tell the doctor that the victim had just stopped eating that day. He also told her that she should mention nothing of him and the other two children at home.

Dr. Kenneth Greer, the senior pediatric resident, examined the victim upon her admission into the hospital. He testified that the victim was extremely emaciated, and her body was frigid to the touch. The victim's body temperature was so low that Dr. Greer was unable to obtain an accurate measurement; however, after 45 minutes in the hospital, the victim's body temperature rose to 78 degrees. She registered no blood pressure, and Dr. Greer could detect only faint and distant heart tones. The victim's arms and legs had no fat, and her hands and feet were swollen, a sign of severe malnutrition. According to Dr. Greer, her skinshowed signs of severe dehydration and lack of protein and adequate oxygen, similar to an individual who has suffered from starvation over an extended period.

Dr. Greer also testified that the victim had an extremely low white blood cell count, and suffered from a rampant blood infection. As a result, she was in a state of dissimulated intravascular coagulopathy, and was unable to form blood clots. She was so dehydrated that her blood vessels, which contained no significant amount of fluid, had collapsed. The victim also suffered from pressure sores on her back.

Dr. Greer's attempt to save the victim's life was ultimately unsuccessful. The victim died six hours after her arrival in the emergency room. The immediate cause of death was a pulmonary hemorrhage in her lungs due to the severe malnutrition and profound hypothermia. Dr. Greer testified that the profound hypothermia was consistent with the child's having been kept in a room with the window open when the outside temperature was between 20 and 40 degrees for several days. The victim's malnutrition was the result of not being fed, or being fed very little, over a long period.

Dr. Robert Stein, the chief medical examiner of Cook County, performed the autopsy on the victim. The 16-month-old victim weighed 17 pounds. Dr. Stein found that the victim was markedly emaciated and dehydrated, as evidenced by the edemal swelling of the upper and lower eyelids, and her large head size. He also found healed scars on the back of her leg, and an ulcerated area on her back. Dr. Stein found a complete absence of fat, which was consistent with starvation. The victim's ribs were very prominent. There was a complete absence of food in her gastrointestinal tract, which showed that she had not eaten for days, possibly even a week. He found a localized hemorrhage in the subgaleal tissue on the victim's head. Dr. Stein testified that the immediatecause of death was hypothermia due to neglect, because of child abuse.

After examination of the victim, the hospital authorities became concerned that other children might still be in the home subject to the same type of abuse that caused the victim's death. Hurley told the hospital authorities that Victoria and Victor were still at home. The evidence established, however, that after Hurley took the victim to the hospital, defendant brought the other children to the home of his cousin, Theresa Robinson. Robinson testified that around midnight on the night of December 22, 1986, defendant arrived at her home accompanied by Victoria and Victor. Despite the winter's cold, defendant was sweating profusely. Both children were terrified and in a great deal of pain. Victoria was barefoot, and wore no coat. Victor wore a coat and shoes that were too small. Defendant asked Robinson if she would care for the children for a few days. At first Robinson declined because it was so close to the Christmas holiday, but when she saw that Victoria was limping and in pain, she changed her mind. She told defendant that the children could stay for a short time, but that he had to return for them.

While Robinson prepared something for the children to eat, her daughter prepared a bath for them. After Victoria was undressed, Robinson observed scars, fresh wounds, and burns on her legs and buttocks. Robinson notified the police, and the children were immediately taken by the Chicago police department to Cook County Hospital.

The following day, around 3 p.m., defendant returned to Robinson's home carrying a gym bag. Robinson and her husband explained to defendant that they had taken the children to the hospital. Defendant denied that he had harmed the children, and further stated that he did not care what happened to them becausethey were not his children. As defendant rose to leave Robinson's house, Robinson's husband told defendant that he "wasn't going anywhere." Robinson called the police, and defendant was placed under arrest. The arresting officer testified that the gym bag contained $4,427 in currency, neatly stacked in order of denomination and by the serial numbers on the bills.

Dr. Demetra Soter, the acting head of the child abuse team at Cook County Hospital, testified as to Victoria's and Victor's physical conditions upon their admission to the hospital. She described them as "emaciated, frightened children." Victor did not speak at all. Dr. Soter observed lined and curved marks from a whip on Victor's legs. Both of Victor's feet were swollen and peeling from frostbite. Dr. Soter opined that the frostbite to Victor's feet was consistent with his being kept in an unheated room, on a bare floor, during the month of December in Chicago. In addition, Victor had cuts all over his genitals and penis. Dr. Soter also observed a cigarette-type burn next to his rectum. Victor's buttocks were very red and scarred, consistent with being placed on an object for a prolonged period. Dr. Soter diagnosed Victor as suffering from repeated severe child abuse and malnutrition.

According to Dr. Soter, Victoria was incredibly emaciated, with a very protuberant belly consistent with long-term starvation. Dr. Soter found cuts and bruises over Victoria's head, and whip marks up and down her legs that were even more severe than those found on Victor's legs. Similar to Victor, she had swollen hands and feet from frostbite. She had prominent scarring on her buttocks, and keloid formation, which she described as a permanent deformation caused by second- and third-degree burns. Victoria also had fresh bruises near her eyes and on her face. In addition, Dr. Soter noted linear marks on her hands and arms that could havebeen caused by being whipped with an extension cord with a tremendous amount of force. She diagnosed Victoria's condition as severe starvation and abuse with burns and whips.

Chicago Police Detective Dennis Keane and his partner were assigned to investigate the victim's death. The officers conducted three interviews with Hurley. She explained that during the first two interviews, she did not incriminate defendant because she was afraid of him. After learning during the third interview that defendant was in custody, however, she told the officers the complete truth because he was locked up and could not harm her.

The State then rested its case, and defendant, acting pro se, presented his case in chief. Defendant recalled Theresa Robinson to the stand, where she admitted that she had been convicted for possession of marijuana and possession of a pistol that was not registered. The defendant also recalled Hurley to the stand. Hurley denied that she made a deal with the State's Attorney's ...

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