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May 31, 1995


Appeal from Circuit Court of Coles County. No. 92CF185. Honorable Ashton C. Waller, Judge Presiding.

As Corrected July 19, 1995.

Justices: Honorable James A. Knecht, P.j. Honorable Robert W. Cook, J. Honorable Robert J. Steigmann, J. Presiding Justice Knecht delivered the opinion of the court: Cook and Steigmann, JJ., concur.

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

Defendant Frank L. Rader was convicted of aggravated battery of a child. (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.3.) He was sentenced to 12 years' imprisonment and appeals both his conviction and sentence. We affirm.

In September 1992, defendant was charged with aggravated battery of a child, his son D.R. (born April 20, 1992). At a stipulated bench trial in February 1993, the following facts were presented. Jackie Cooper (Jackie) lived near defendant and his wife Dorothy Rader and their baby, D.R. On September 6, 1992, defendant came to her apartment and stated D.R., his 4 1/2-month-old baby, was dead. The baby was not breathing, and his eyes were rolled up into his head. Defendant stated he had just been playing with the baby. Jackie previously warned defendant several times he was too rough with the baby. The police had also "been involved" after bruises had been observed on the baby. The baby's mother told Jackie she believed defendant was causing bruises. James Cooper (James), Jackie's husband, arrived home and observed defendant bouncing D.R. up and down, but the baby was not breathing, and his eyes were rolled up into his head. James took the baby and attempted to administer mouth-to-mouth resuscitation.

Dr. David Keil, an emergency room physician at the Sarah Bush Lincoln Health Care Center (Sarah Bush) in Mattoon, Illinois, was on duty when D.R. was brought to the hospital by ambulance. D.R. was not breathing, but Dr. Keil revived him. A spinal tap indicated a brain hemorrhage. A severe brain injury was suspected, so the baby was later transferred to St. John's Hospital (St. John's) in Springfield, Illinois. Defendant arrived at the hospital and told Dr. Keil the baby was lying in his crib when all of a sudden the baby began gasping and stopped breathing. He tried to rouse the child and then ran downstairs to a neighbor's apartment to call for help. After speaking with defendant, Dr. Keil reexamined the baby. The baby's severe injury was inconsistent with the defendant's story. Dr. Keil again spoke with defendant. Defendant now stated he had been playing with the baby, holding the baby upside down, with the baby's feet over his head. Defendant claimed the baby suddenly stopped breathing, whereupon he slapped and shook the baby in an attempt to revive him. Dr. Keil concluded, based on his examination and the inconsistent stories by defendant, the baby was a victim of severe child abuse and had been shaken severely. Dr. Keil also overheard defendant and his wife as she accused him of being too rough with the baby.

Dr. Steven R. Bowers, a physician with the Southern Illinois University (SIU) School of Medicine, Department of Pediatrics, is also a pediatric internist at St. John's. He examined D.R. and observed two bruises to the forehead as well as marks on the eyelids of the baby and jerking seizures. His initial exam indicated the baby had a brain injury. A computerized axial tomography (CAT) scan determined the baby had a subdural hematoma to the interior portion of his brain. This stemmed from an old injury as well as from a new injury. The baby had difficulty breathing, and the baby's brain was so swollen Dr. Bowers could not initially determine the extent of injuries. His prognosis was the baby was paralyzed on the left side, would always suffer from seizures, had widespread brain injury, was possibly deaf and blind, and would be developmentally delayed. Based on his examination, test results, and an examination by an ophthalmologist, Dr. Bower concluded the baby was a victim of child abuse, known as "shaken baby syndrome." The force necessary to cause the injuries was in excess of what a normal person would use. In order to cause D.R.'s injuries, the baby must have been picked up and shaken severely and repetitively. A simple shake of the baby would not have caused the injuries.

Dr. Blas Zelaya, a pediatric neurologist in Springfield, was called in to examine D.R. because neurological and brain damage was suspected. He examined D.R. and found extensive hemorrhaging of the retinas of the eyes. Fluid was present in the anterior portion of D.R.'s brain, causing pressure within the head. It was Dr. Zelaya's prognosis the baby had impaired vision, was probably deaf, had some kind of brain deficiency, probably would be developmentally disabled, and had left side paralysis. It was his opinion D.R.'s brain injury was directly related to a severe shaking. It would require fierce and repetitive shaking for a child to suffer from the severe retinal hemorrhages which he observed in D.R.

Dr. Thomas Fleming is an assistant professor of ophthalmology and an ophthalmologist specializing in retinal repair at the SIU School of Medicine Eye Center in Springfield. He was called in by Dr. Bowers to conduct an eye examination on D.R. He observed a 360-degree diffused hemorrhage on the retina and severe intra-retinal hemorrhaging. The hemorrhaging was massive, and on a scale of 1 to 4, the damage was a 4. The damage was consistent with shaken baby syndrome. To cause thesevere hemorrhaging of the retina he observed in D.R., the baby must have been shaken repeatedly over a prolonged period in a violent manner. It was his prognosis the baby was blind, and although the baby's eyesight might improve, he would be legally blind as a result of the injury. Further, for there to be such severe hemorrhaging of the retina, there must also be severe brain hemorrhage.

Chief Dave O'Dell of the Mattoon police department and Detective Joe Plummer interviewed defendant on September 9, 1992. Defendant gave them the following story: on September 6, 1992, he had been home alone playing with D.R. and lifted his legs over his head about four or five times. One of these times, he noticed liquid coming out of the baby's nose, and D.R. went limp. He vigorously shook D.R. because he thought D.R. was having a seizure. Nothing happened, so he slapped D.R. three or four times on the face. He shook the baby again. He continued shaking and trying to revive the baby for four to six minutes. He then went downstairs to get help, at which time D.R. was not breathing. Defendant admitted to mental and emotional problems and has been admitted to the hospital for psychiatric and emotional care. He suffers from blackouts and loses control of his temper.

After interviewing defendant, Chief O'Dell and Detective Plummer interviewed defendant's wife and then reinterviewed defendant. During this second interview, defendant gave the following story: on September 6, 1992, D.R. appeared fussy. Defendant attempted to cheer up the baby, but D.R. remained fussy. Defendant then picked up the child and shook him. The child laughed while being shook. He continued to hold the baby upside down and continued to shake him. Then, liquid came out of the baby's nose and mouth. Defendant became upset, picked up the child and began shaking the child extremely hard and slapping the child in the face for about five minutes. The baby stopped breathing and defendant went to get help.

Jan Blaney is a caseworker at the Department of Children and Family Services (DCFS). D.R. is currently in a foster home specializing in remedial care of infants diagnosed with shaken baby syndrome. D.R. has regained some of his hearing. He is blind, but on occasion responds to light. He is disabled from severe brain damage and suffers from seizures, which he takes medication to control. The baby will suffer lifelong disabilities as a result of the shaken baby syndrome.

The following stipulated facts were presented for the defense. Barbara Savoroski, a longtime friend of defendant and his family, has known defendant, who was a friend of Savoroski's son, since he was six years old. Defendant lived with her for three to four months in California. During this time, she operated a day-care center out of her home and she saw defendant interact well with the children, whose ages ranged from infants to approximately six to seven years of age. The children liked defendant. She did not observe defendant mistreating or mishandling the children.

Jeanette Rader Colbert is defendant's sister. She has two children, now ages six and seven. She has observed defendant around her children as well as around D.R. Defendant interacted well with the children. She never observed him being mean or mistreating her children. Defendant appeared to be a caring and loving father, and she never saw him mistreating D.R.

Steve Rader is defendant's uncle and resides in California. He is friends with Savoroski. Defendant resided with him for a period of time when defendant was 17. Rader observed defendant interacting with children, namely, defendant's niece and his sister's children, as well as the children in Savoroski's day care. He did not observe defendant mistreating the children. Defendant ...

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