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June 30, 1995


Appeal from the Circuit Court of Cook County. The Honorable Vincent Bentivenga, Judge Presiding.

As Corrected October 23, 1995.

The Honorable Justice Egan Delivered the opinion of the court: McNAMARA, P.j., and Zwick, J., concur.

The opinion of the court was delivered by: Egan

JUSTICE EGAN delivered the opinion of the court:

On November 14, 1990, two-and-a-half-year-old Shanika Mosley sustained third-degree burns on both of her hands while allegedly making spaghetti with the defendant, Harold Fomond. A jury convicted the defendant of heinous battery, aggravated battery and aggravated battery of a child. The trial judge sentenced the defendant to 20 years' imprisonment. The defendant raises five claims of error, but he does not contest the sufficiency of the evidence. We first address the defendant's contention that the judge erred in denying his motion for a new venire. During voir dire, the defense counsel asked the judge for a sidebar, during which he orally moved to dismiss the venire. The defense counsel stated that there were only three or four black members on the 44-person venire. Stating that there were also "other lurasian people in the voir dire panel," the judge denied the defense counsel's motion. The judge began the proceedings the next day by citing People v. Peeples (1993), 155 Ill. 2d 422, 616 N.E.2d 294, 186 Ill. Dec. 341, in support of his ruling the day before. At this time, the defense counsel complained that the only black jury member was one whom the parties had selected as a potential alternate juror, but the judge did not change his ruling.

There is no written motion for a new venire in the record, although the defendant complains in his post-trial motion that the composition of the venire deprived him of a fair trial. During his argument on his post-trial motion, the defense counsel again claimed that there were only four minority members on the 44-person venire. The judge stated that five members of the venire had appeared to him to be minority members and denied the post-trial motion.

We agree with the State that the defendant has waived review of this issue by failing to challenge the venire by a written motion supported by affidavit. See 725 ILCS 5/114-3 (West 1993); People v. Johnson (1987), 154 Ill. App. 3d 301, 507 N.E.2d 179, 107 Ill. Dec. 515 (finding waiver when the defendants did not support their written motions with affidavits); People v. Flowers (1985), 132 Ill. App. 3d 939, 478 N.E.2d 524, 88 Ill. Dec. 209 (holding that the defendant's oral motion challenging the venire was insufficient to preserve the issue for review); People v. Perry (1980), 81 Ill. App. 3d 422, 401 N.E.2d 1263, 37 Ill. Dec. 170 (holding that an oral challenge to the venire is insufficient).

Even if we were to review the merits of the defendant's claim, we would reject his assertion of error because he failed to establish grounds for relief. To show racial discrimination in the jury selection process, a defendant lust present evidence concerning the method by which the jury was selected. ( People v. Stanley (1993), 246 Ill. App. 3d 393, 615 N.E.2d 1352, 186 Ill. Dec. 295.) The defendant presented no such evidence, through affidavits or otherwise. The only facts in the record concerning the venire are the defense counsel's comments that only four of the 44 members of the venire were black and the judge's observation that he believed there were five minority members on the venire. This evidence is insufficient to show a violation of the fair cross-section requirement. (See Stanley, 246 Ill. App. 3d at 398.) For these reasons, we hold that, although the judge's stated reason for denying the defendant's motion to dismiss the venire is unclear, the judge did not err by denying this motion.

The defendant also maintains that evidence of statements made by Shanika to her mother were erroneously admitted. Neither party called Shanika Mosley to testify at trial. Mary Mosley explained that her daughter, Shanika, was about two and one half years old in November 1990, and five years old at the time of trial. On the morning of November 14, 1990, she went to work, leaving Shanika in their apartment with the defendant, who was living with them. The defendant called her at about 11 a.m. to tell her that Shanika had been trying to cook and fell into some boiling water, in which she burned her hands.

When she arrived home an hour later, Mary found Shanika sleeping. The defendant had not taken her to the hospital because his sister had told him that the hospital Staff would think that he had abused her. Mary noticed a pot on the stove, some spaghetti and a little water on the floor.

She and the defendant took Shanika to Union Health Services ("the clinic"). Mary did not question her daughter about the incident at that time because she was only concerned about obtaining medical treatment for Shanika. As they were leaving for the clinic, however, Shanika told her, "Chipper did it Mama. Chipper did it." Chipper was the defendant's nickname.

At the clinic, the medical staff treated Shanika's hands and sent her home. Mary took Shanika back to the clinic the next day and the following day. Willie Mosley, Mary's mother, subsequently took Shanika to Illinois Masonic Hospital, from which Shanika was transferred to the burn unit at Loyola University Hospital. She had two skin grafts at Loyola and, at the time of trial, she had undergone four of five other necessary surgeries for her burns. She had not regained full range of motion in her hands and continued to require physical therapy. During Mary's testimony, the State presented Shanika to the jury so that the jury members could observe her burns. (Shanika did not testify.)

Mary further testified that her daughter would not talk about burning her hands for a year or a year and a half after the incident, but, in a conversation at that later time, Shanika told her "exactly what happened that day." Mary did not otherwise state the contents of this later conversation.

Mary did not tell anyone at the clinic that her daughter had said, "Chipper did it," but she did tell the police everything Shanika and the defendant had told her. She also told a nurse at Loyola and a DCFS worker that Shanika had said "Chipper did it."

Willie Mosley's testimony was consistent with her daughter's. Youth Officer Terry Belinski testified that, in November 1990, he spoke with Shanika's mother and grandmother, and, on November 21, he went to Loyola to take pictures of Shanika, which the State introduced into evidence. He also interviewed the defendant, who told him that he and Shanika were preparing spaghetti when he left the room to use the bathroom. As he returned, he saw Shanika fall into the pot of water, and she and the pot fell to the floor. From the apartment, Belinski recovered the pot, which the State also introduced. The depth of this pot was four and three quarters inches. Belinski did not talk to Shanika because she was in the hospital and sedated most of the time.

Dr. Richard Gamelli, Chief of the Loyola Burn Unit and an expert on burns, testified that he treated Shanika at Loyola. He described the burned area on Shanika's hands as the same area that would be covered by a pair of gloves. There was a well-circumscribed point between the injured skin and the uninjured area, and she had no other injuries, such as bruises which would have indicated that she had fallen.

The doctor identified pictures taken of Shanika within 24 hours of her arrival at Loyola. In these pictures, the upper half of Shanika's body is naked. Although the burns on her hands are obvious, no other injuries are evident from these pictures. The burned area on her hands is uniform and covers each hand completely from a ring around each wrist to her fingertips.

Dr. Gamelli explained that he sees 100 to 150 burns a year from scalding. He sees 138 children per year with burns, and 90% of these burns are from scalds. He stated that burns from immersion in hot liquid are uniform, whereas burns from spills of hot liquid look like a chocolate sundae melting because of the marks the hot liquid leaves where it runs along the skin. When persons fall into hot liquid and attempt to extricate themselves, there is usually a primary injury from the immersion in the liquid and other associated injuries from splashed or splattered liquid. The latter form of injury is usually very erratic in appearance. Dr. Gamelli had treated at least 25 and maybe more than 100 injuries where someone had fallen off a counter with a hot substance. The doctor explained:

"Normally when someone falls and strikes a vessel with liquid in it, it splatters and flies all over the place, we will see an injury on the left side, something on the right side, we see it came into contact, ran down to the arm, neck, head, the chest."

In addition, when a burn victim's hands have come into contact with a pot containing hot liquid, the victim has contact burns from the hot metal of the pot. Shanika did not have any contact burns. In cases where a child has fallen into a pot of boiling water, usually only one extremity is involved. Shanika's injuries were not like other burns sustained in falls involving hot liquid because she had no burns from splashing liquid. A long-sleeve cotton sweater would not be a barrier to the heat from boiling water.

Dr. Gamelli estimated that, to sustain the type of injuries she did, Shanika's hands must have remained in the boiling water for five seconds to a half a minute. A normal child of Shanika's age in November 1990 would have responded to the heat of the water and removed her hands within two to three seconds. The doctor expressed his opinion that Shanika's injuries were not accidental and were the result of child abuse. The defense did not object to this testimony.

The defendant testified that he had placed Shanika on the counter next a pot of boiling water on the stove. The level of the water in the pot was one inch to one half inch from the top of the pot. The defendant placed Shanika on the counter about 20 to 30 minutes after he placed the pot on the stove and set the gas burner to its highest setting.

The defendant instructed Shanika how to break spaghetti into the pot. They had not finished putting spaghetti into the pot when the defendant left the kitchen to go to the washroom. She was sitting on the counter about a foot from the pot at this time and her upper body was turned at an angle. The defendant left her alone in the kitchen because she was very intelligent for her age, but he also admitted that he was negligent in leaving her there.

As he returned from the bathroom, he noticed that Shanika was losing her balance. She fell into the water, and she and the pot fell to the floor. The pot landed a few feet from her. There was water all over the floor and her clothes, which consisted of a tank top, a long-sleeve cotton sweater and blue jeans. Her sweater and tank top were wet from the boiling water.

The defendant called his mother because there was no one else home. His mother used a three-way calling feature to call Mary while the defendant was still on the phone with her. Before Mary arrived home a half-hour to 45 minutes later, the defendant picked the pot off the floor and placed it on the stove, countertop or sink. Some spaghetti remained on the floor. He and Mary took Shanika to the clinic.

Harriet Fomond, the defendant's mother, testified on his behalf that, at approximately 11 a.m. on November 14, 1990, her son called and told her there had been an accident. Her testimony differed from her son's only in that she said her son told her that he did not see Shanika put her hands in the pot because he arrived in the kitchen only after she had fallen. The defendant also ...

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