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05/31/95 PEOPLE STATE ILLINOIS v. PERCY MYRICK

May 31, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE
v.
PERCY MYRICK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Themis Karnezis, Judge Presiding.

Petition for Rehearing Denied August 8, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Rizzi delivered the opinion of the court: Greiman, P.j., and Tully, J., concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Defendant, Percy "Face" Myrick, was found guilty of first degree murder in a bench trial, and was sentenced to 45 years in prison. Defendant contends that: (1) he was not proven guilty of first degree murder beyond a reasonable doubt because the evidence was insufficient to show he knew his actions would cause death or great bodily harm; and (2) the State failed to prove probable cause to seize him at the time he was seized. We affirm defendant's conviction.

On June 25, 1991, Daphne Townsend left her 6-month-old baby, Oasby Gilliam, to go to work. Around the same time, Catherine Taylor, her roommate, went out with her children. Daphne's boyfriend, "T", was left in charge of baby Oasby. "T" however, left around 9:30 a.m. to visit his aunt. The only person left with baby Oasby was defendant, Catherine's boyfriend of three weeks.

Michelle Adams went into the apartment around 10:45 a.m. and found baby Oasby, unattended, lying on the floor, and foaming at the mouth. She immediately called for assistance. The baby was pronounced dead at the hospital. An autopsy of baby Oasby revealed two adjacent skull fractures, two broken ribs, laceration to the liver, and hemorrhaging of the intestines, and of the back. The baby died of multiple injuries due to blunt trauma.

According to defendant's statement to the police, he was in bedwatching television when he heard the baby crying. Defendant then realized he was alone with the baby and went to get the baby's bottle. He was angry at the other adults for leaving him alone with the baby. He picked up baby Oasby and shook him in an up and down motion "trying to hush him." While turning with the baby in his arms, the baby's head hit the wall. The baby screamed loudly so defendant rubbed the baby's head and kissed him. When the baby started coughing, defendant hit him in the back a few times. Baby Oasby threw up and defendant tapped the baby on the chest with his open hand. When the baby did not stop crying, defendant "gently tossed" the baby to the bed across the room. At the time he tossed the baby, defendant was closer to baby Oasby's crib than to the bed. The baby hit the side of the bed, fell off the bed, and his head hit the floor. Defendant picked up the baby, shook him, and tapped him on the head, then he laid the baby down which caused the baby's head to have "gently tapped the floor." The baby had his eyes and mouth open and just lay on the floor. Being nervous, defendant put milk in the bottle, set it down, and left the apartment to buy heroin.

On appeal, defendant's first contention is that the State did not prove beyond a reasonable doubt that he knew his acts would cause death or great bodily harm. In Illinois, "a person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause death *** he knows that such acts create a strong probability of death or great bodily harm to that individual ***." 720 ILCS 5/9-1 (West 1992). In reviewing whether defendant was proven guilty beyond a reasonable doubt, the "question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268, 139 Ill. Dec. 756.

At the time, defendant was a 21-year-old, 215 pound, 6 foot tall male. Baby Oasby was 6 months old, weighed 14 pounds, and was 25 inches tall. The disparity in size between defendant and the victim are evident. A 6-month-old baby is very fragile. Shaking a baby so violently that it causes internal bleeding and breaks two ribs is not the best way to "hush" a baby. It was not unreasonable for the trier of fact to find that when defendant was shaking the baby and throwing him across the room, he knew such acts created a strong probability of death or great bodily harm.

Although defendant said the that Oasby's head accidentally hit the wall as he was turning him in his arms and that he "gently tossed" the baby to the bed across the room, the trier of fact need notbelieve those portions of his statement. The trier of fact may accept all, part, or none of a defendant's confession. People v. Garza (1981), 92 Ill. App. 3d 723, 729, 415 N.E.2d 1328, 1334, 48 Ill. Dec. 44. The trier of fact does not have to believe the self-serving characterization of a defendant's actions.

The autopsy revealed baby Oasby's skull was fractured in two places. At trial, Dr. Konacki testified that he expected these two fractures to occur with more than just one blow. The trier of fact may consider any discrepancies between the confession and the evidence adduced at trial in assessing the degree of credibility to afford the confession. People v. Hester (1968), 39 Ill. 2d 489, 511-12, 237 N.E.2d 466, 480. The trial court could take into account the discrepancies between defendant's statement that the baby's head accidentally hit the wall only one time and the doctor's testimony that he thought the fractures were caused by more than one blow. Furthermore, defendant's statement that he "gently tossed" the baby to the bed on the other side of the room can be weighed against the fact that defendant was closer to the crib than to the bed. In fact, the baby's crib was next to where defendant was standing.

Although Dr. Konacki testified on cross-examination that the bruise on the chest and hemorrhaging of the heart could have been caused by an effort at resuscitation, this was mere speculation. Nowhere in defendant's statement does he say he was trying to resuscitate baby Oasby. On the contrary, defendant admitted he left the unresponsive baby alone on the floor without calling for assistance. Instead of calling the paramedics or the police, defendant callously went to buy heroin leaving the injured baby alone. After taking into consideration the discrepancies between the evidence and the defendant's statement, the trial court could reasonably assess little or no credibility to defendant's statements of concern for the baby.

The State has the burden of proving the defendant guilty beyond a reasonable doubt, not beyond any possible doubt. People v. Madej (1985), 106 Ill. 2d 201, 218, 478 N.E.2d 392, 399, 88 Ill. Dec. 77. A trier of fact could reasonably infer that defendant was responsible for the conduct which caused baby Oasby's death and that defendant was aware his actions created a strong probability of great bodily harm or death. We ...


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