APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RALPH REYNA JUDGE PRESIDING. This Opinion Substituted by the Court for Withdrawn Opinion of June 9, 1995, Previously
Rehearing Denied September 1, 1995.
The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and McNULTY, J., concur.
The opinion of the court was delivered by: Gordon
JUSTICE GORDON delivered the opinion of the court:
On January 16, 1992, a jury convicted the defendant-appellant Juan Rodriguez of first degree murder in the June 3, 1990 killing of three year old Marion Knee. The circuit court entered judgment on that verdict and subsequently sentenced the defendant to an eighty year extended term of imprisonment. For the reasons set forth below, we affirm the defendant's conviction but remand for resentencing.
The defendant's trial commenced on January 10, 1992 and the State's first witness, the victim's mother Rhonda Knee (hereinafter referred to as Rhonda), testified that in June of 1990 she lived at 9818 S. Ewing in Chicago with the victim, her sons Gregory and William, and the defendant. At the time of the killing, Gregory Knee was four years old and William Knee was two. The defendant had resided with Rhonda and her children since June of 1989.
Rhonda testified that the defendant originally had treated her children well but that his treatment of the victim changed in May of 1990 at which time he began to punish her more frequently. The punishments included making the victim stand in a corner with her arms restrained by zipping them inside her pajamas, poking her in the stomach, and, on one occasion, putting a pair of socks in her mouth. Rhonda stated that the defendant's poking sometimes bruised the victim's stomach.
Rhonda further testified that the victim had sustained a broken arm in early May of 1990. She was absent when that injury occurred but the defendant, who had been watching the victim at the time, told her that the victim broke her arm jumping from one bed to another. Rhonda observed burn marks on the backs of both of the victim's hands in May of 1990, stating that the victim received those burns "messing with the coffee pot." She also stated that approximately one week before the victim's death she observed a bruise on the victim's ear lobe which prompted her to say to the defendant "If I see  anymore [bruises you are] out."
Rhonda continued that on the morning of June 3, 1990 the defendant woke her: "he was screaming that the [victim] was sick and he was carrying her in my room." She noticed that the victim "was real pale" and "looked sick." After the police and paramedics had arrived, and the victim had been taken to a hospital, the defendant told her that "he didn't mean to hurt her."
On cross-examination, Rhonda stated that the victim bruised easily, that the victim giggled when the defendant poked her in the stomach, and that the pair of socks which the defendant put in the victim's mouth were baby socks and that he took them "right out" when he saw that they were "troubling her." She also indicated that her brother and sister-in-law also may have been abusing the victim.
Dr. Michael Chambliss testified for the State that on June 4, 1990 he worked as an Assistant Cook County Medical Examiner and performed an autopsy of the victim's body. He noted that the victim was approximately three feet tall and weighed thirty pounds. In his external examination, he observed multiple bruises on both sides of the victim's lower abdomen which was noticeably distended, and a slightly curved abrasion of the right side of the abdominal wall to the side of the navel. He also observed multiple bruises on her face and ears, lower and mid back, left buttock, and on her arms and legs. With respect to the injuries on the victim's ears, Dr. Chambliss stated that "there's more bruising on both ears of this child than I have seen before...." He noted a fracture of the victim's left arm, which bore a cast at the time of her death, just above the elbow.
In his internal examination, Dr. Chambliss observed a large amount of blood throughout the abdominal cavity (approximately one half of the victim's total blood volume) which caused the distention. "The blood that was collected there was associated with 3 lacerations of the blood supply to the intestines we call the mesentery." He also observed bruising to the victim's intestines. Dr. Chambliss stated that the mesentery was injured by being driven against the spine, an injury requiring "significant force." He also pointed out that all of the bruises on the abdomen were the result of a recent injury and could not have resulted from a mere accident.
Dr. Chambliss opined that "the death of [the victim] was secondary to lacerations of the mesentery, as a result of blunt trauma." He stated that the severe bleeding resulting from the injuries to the mesentery would have produced shock, and then death, "within a matter of minutes." Dr. Chambliss further opined that the location and nature of the injuries to the mesentery would have required more than one blow to cause them.
In his internal examination of the victim's skull, Dr. Chambliss observed multiple areas of bleeding in the soft tissue over its top. He attributed that bleeding to blunt trauma. Over the defendant's objection, the circuit court allowed into evidence a chart which Dr. Chambliss prepared, detailing the location of those injuries. The court also permitted the jury to take that chart into the jury room during its deliberations.
Dr. Chambliss described the fracture he observed in the victim'sleft arm as a "spiral fracture" which, in children, would require "very significant force." He opined that a fall from a bed would not plausibly account for a spiral fracture and that such a fracture would more likely result from twisting, "consistent with someone twisting [the victim's] arm at the elbow area." On cross-examination, Dr. Chambliss stated that the injuries to the victim's mesentery would have required at least two blows and, based on the type of injuries he observed in performing the autopsy, he "would consider [the victim] to be an abused child."
Officer James Banks of the Chicago Police also testified for the State. He arrived at 9818 S. Ewing on the morning of June 3, 1990 as paramedics were removing the victim from the premises. Banks spoke to the defendant who told him that he had sent the victim to stand in a closet as punishment for "messing in her pants." After twenty to thirty minutes passed, the defendant "heard a thump" and found the victim laying on the floor.
Detective George Winistorfer of the Chicago Police testified that he also arrived at 9818 Ewing on that fatal morning. He interviewed the defendant, who gave the same account of the occurrence that he had earlier given to Officer Banks. The defendant and Rhonda were eventually transported to Area Two Detective Division Headquarters where Winistorfer reinterviewed the defendant, who repeated the statement which he had already given twice before. Detective Winistorfer then testified, over the defendant's hearsay objection and without a limiting instruction, that he then informed the defendant that the victim's brother Gregory told him "that he had observed that morning [the defendant] hitting the victim  and also banging her head on the floor."
Detective Winistorfer continued that upon being confronted with Gregory's purported statement, the defendant confessed that he woke up with a hangover and, when he noticed that the victim had defecated in her pants, he
"swatted her on the arm or on the butt, and he got feces on his hand and up his arm. He then got mad and hit her on the arm and she started crying. He said that she wouldn't stop crying. And that is when he took his, the palm of his hand, and hit her twice in the abdomen."
The next day, June 4, 1990, Winistorfer again interviewed the defendant who made substantially the same confession as he had made the preceding day. During that interview, Winistorfer asked the defendant to demonstrate the manner in which he struck the victim on the morning of June 3, 1990. In response, the defendant struck a wall twice with the palm of his open hand. Detective Winistorfer describedthat demonstration as "two forceful blows that reverberated in the room and on the wall." On cross-examination, Winistorfer stated that Rhonda had told him that the defendant had injured the victim prior to the date of the killing by bruising her body, presumably by striking her.
Assistant State's Attorney Kevin Sheehan testified that the defendant orally related to him essentially the same confession as he had given earlier. According to Sheehan, the defendant said that he became angry at the victim when she soiled his hand, that he then hit her in the stomach twice, and that upon being struck the victim "gasped, could not catch her breath, her eyes rolled back in her head and that she then collapsed on the floor." John Wyatt, who worked as an Assistant State's Attorney in June of 1990, testified that he elicited a signed, handwritten confession from the defendant which recited the same facts as contained in his oral confessions.
The defendant testified on his own behalf. He stated that from the beginning of his relationship with Rhonda he noticed that her children "were often you know they were being neglected, being abused." He stated that "[Rhonda] was hitting the children. [The victim] in particular." He further testified he was "sure" that Rhonda's brother and sister in law had physically abused the victim. The defendant acknowledged that he had previously restrained the victim's hands by zipping them inside her pajamas and that, on one occasion, he put a pair of socks in her mouth because "she was throwing a fit."
With respect to the events of the morning of June 3, 1990, the defendant stated that Rhonda carried the victim into their bedroom and woke him, stating that the victim was quite ill. After the defendant found no pulse or respiration, he attempted cardio-pulmonary resuscitation of the victim while Rhonda summoned assistance. According to the defendant, when the police and paramedics had arrived Rhonda admitted to him that she kicked the victim in anger because she had soiled her hand on the victim's underpants after the victim had a toilet training accident.
The defendant said that he advised Rhonda that she was in "deep trouble" and then took the blame on himself by falsely telling Detective Winistorfer and both Assistant State's Attorneys that he was responsible for acts which Rhonda actually committed. He stated that did so to shield Rhonda because he believed her to be pregnant with his child.
On cross-examination, the State asked the defendant whetherRhonda ever told him to which part of the body, or how many times, she allegedly kicked the victim. He replied that "only thing Rhonda told me was that she kicked her. And that is it." The ...