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February 15, 1996


Appeal from the Circuit Court of Henry County, the Hon. Jeffrey W. O'Connor, Judge, presiding.

Rehearing Denied April 1, 1996.

The Honorable Justice Harrison delivered the opinion of the court:

The opinion of the court was delivered by: Harrison

The Honorable Justice HARRISON delivered the opinion of the court:

Following a jury trial in the circuit court of Henry County, Douglas E. Oaks was convicted of two counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 9-1(a)(2), (a)(3)) and one count of aggravated battery of a child (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.3(a)) for the death of his girlfriend's three-year-old son. Defendant waived his right to a jury at the death penalty hearing. The trial court found defendant eligible for the death penalty because the victim was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(7).) The trial court also found that no mitigating factors existed sufficient to preclude imposition of the death sentence (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(h)), and sentenced defendant to death on the two murder counts. Defendant's aggravated battery of a child conviction was vacated as a lesser included offense of the murder convictions. The sentence was stayed pending direct review by this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rules 603, 609(a).

On appeal to this court, defendant argues that: (1) the murder and aggravated battery indictments issued against him are duplicitous and void; (2) the statements he made to police should have been suppressed at trial, because they were involuntarily given as the result of promises made to him by his interrogators, and his written statement was taken in violation of his fifth amendment right to counsel; (3) he was denied a fair trial where the State introduced evidence of prior injuries to the victim without establishing that defendant had inflicted them; (4) he was not proven guilty of murder because the State failed to prove beyond a reasonable doubt that he knew shaking a child could cause death or great bodily harm or would create a strong probability of death or great bodily harm; (5) he was denied a fair trial where the State elicited testimony from a pediatrician that the victim's injuries could not have been caused accidentally but must have been caused intentionally; (6) he was denied due process where the involuntary manslaughter instructions informed the jury that it was the State's burden to prove defendant's guilt of that offense; (7) his waiver of a sentencing jury was not knowing and intelligent because the trial court did not tell him that any one juror could preclude a death sentence; (8) his death sentence should be vacated because the sole eligibility factor was not established where the murder was not exceptionally brutal or heinous and indicative of wanton cruelty; (9) the sentencing court relied on a facially vague statutory aggravating factor, that the murder was accompanied by brutal or heinous behavior indicative of wanton cruelty, at both stages of the death penalty hearing; (10) the sentencing court erroneously rejected a psychiatrist's conclusion that defendant had acted under an extreme emotional disturbance when he killed the victim; (11) the sentencing court violated his constitutional rights by refusing to allow him to make a statement in allocution; (12) the Illinois death penalty statute is unconstitutional; and (13) his felony murder conviction and sentence must be vacated because the sentencing court imposed the death penalty for both felony murder and knowing murder though only one person was killed.

In the guilt phase of the trial, the State introduced, inter alia, the following evidence. Michael Weis, a volunteer paramedic for the Cambridge Ambulance Service in Cambridge, Illinois, testified that he and two other emergency medical technicians responded to a 9-1-1 call received at approximately 1:49 p.m. on July 29, 1992. Upon their arrival at an apartment in the Fieldcrest complex in Cambridge, they discovered the three-year-old male victim, Jerry Nelson, laying face down on the floor. Although he had a strong heartbeat, the victim was not breathing and his eyes were fixed and dilated. Weis stated that after he suctioned out the victim's airway in the ambulance, a bloody mucus flowed from his mouth. En route to the hospital, Weis noticed a large bruise on the victim's groin and more bruises on his chest and underneath both arms. The bruises ranged in color from light red to very dark purple and bluish. Weis also noticed a small laceration or abrasion above the left eye, in the hairline. Upon arrival at Hammond-Henry Hospital in Geneseo, Illinois, at around 2:10 p.m., the victim's condition remained unchanged. Weis testified that when he saw the victim several hours later, more bruises were showing up and the lighter bruises were becoming darker.

Paul Rudy, a physician at Hammond-Henry Hospital, testified that he was working in the emergency room when the victim arrived by ambulance on the afternoon of July 29. Dr. Rudy stabilized the victim by maintaining artificial respiration and then questioned the victim's mother, Tonya Nelson, as to what had happened. Dr. Rudy stated that Tonya's responses and behavior were "totally inappropriate," and that she had given him "a couple different stories," saying that the victim had slipped on a blanket in the bedroom and fallen and hit his head on a dresser and that his bruises were caused when he slipped the previous day and hit his chest on the toilet stool in the bathroom. Dr. Rudy identified photographs that he requested be taken in the emergency room of bruises on the victim's chest, groin and abdomen. Because a brain injury was suspected, a CAT scan was ordered, which showed bleeding in the victim's brain. X rays also showed a fracture of the victim's right clavicle, or collarbone. Because a neurosurgeon was needed, Dr. Rudy arranged for the victim's transport by helicopter to Iowa City, Iowa. Dr. Rudy testified that his diagnosis of the victim was battered child syndrome, noting that the injury shown by the CAT scan "did not happen because he slipped on his blanket in the bedroom." Dr. Rudy further stated that the broken clavicle and bruises were fairly recent injuries and that the broken clavicle would be quite painful but that when a brain injury or subdural hematoma occurred, the victim "might become immediately unconscious and *** wouldn't feel anything."

Sheryl Ranos, a special agent with the Illinois State Police, Division of Criminal Investigation, testified that she received a call from her superior officer at approximately 9:45 p.m. on July 29, advising her that there was a three-year-old child at Iowa City Hospital presumed brain dead and that she was to meet with Dee Shannahan of the Department of Children and Family Services (DCFS) and Henry County Detective Jerry Hamilton and assist in the investigation. After being advised that defendant was in Bettendorf, Iowa, and may have been responsible for the victim's injuries, Ranos, Hamilton and Shannahan decided to go to Bettendorf and speak to defendant. Hamilton and Shannahan went to the residence of Darlene and Fritz Schlitter, defendant's grandparents, and requested to speak with defendant. Defendant voluntarily accompanied them to the Bettendorf police department arriving at approximately 11:30 p.m. Ranos testified that she, Hamilton and Shannahan interviewed defendant after he was advised of his Miranda rights. Thirty to 40 minutes into the interview, which began at approximately 11:45 p.m., Ranos left the interview room and discovered that the interview was being videotaped, which is routinely done by the Iowa authorities. The interview was completed at approximately 1:30 a.m. and Detective Hamilton then began to take a written statement from defendant. Shortly after 2 a.m. on July 30, Ranos, Shannahan and Hamilton left the Bettendorf police department and went to the hospital in Iowa City to view the victim and to speak to Tonya Nelson and the doctors. Ranos stated that the victim was unconscious and on a life support system and that she observed bruises on his stomach, chest, groin, arms, wrists, ankles and head.

The videotape of defendant's interview with Ranos, Hamilton and Shannahan was admitted into evidence and played for the jury. The transcript of that videotape reflects that defendant was told that he was not under arrest, but was read his Miranda rights and stated that he understood them. Defendant stated that he arrived at Tonya Nelson's apartment at about 11:30 p.m. on Monday, July 27, 1992, and did not leave until shortly after the victim was injured about 1:17 p.m. on Wednesday, July 29. Defendant initially denied that he had injured the victim, stating he thought the injuries were caused when the victim slipped and hit his head while stepping out of the bathtub after defendant gave him a bath between 11 a.m. and noon on Tuesday At that time, defendant noticed the victim's head looked a little bruised at the hairline on the left side. About 9 p.m. Tuesday night, the victim bruised his chest when he again slipped in the bathroom and hit the toilet. Tonya was in the living room at the time of both these bathroom falls. Defendant further stated that at about 1 p.m. on Wednesday, July 29, the victim fell over while picking up a bowl of popcorn on the floor. The victim repeatedly called for his mother, who was in the bathroom, but would not say anything else and would not sit up. Defendant stated that he believed the victim was "having a seizure," and told Tonya to get dressed. He left after he saw Tonya enter a neighbor's apartment to use the phone to call for help.

After Detective Hamilton told defendant that his story was inconsistent with the nature and extent of the victim's injuries, defendant stated that the right side of the victim's head may have grazed the television stand when he fell while reaching for the popcorn bowl, and that defendant then picked him up, and seeing that he was all right, playfully tossed him in the air two or three times. The last time, the victim caught the edge of the couch coming down and landed on a mattress in front of the couch, hitting his head and shoulder hard. When defendant was again told that his story was inconsistent with the victim's injuries, he stated that when he missed catching the victim, he hit the couch and then the floor. The victim then stood up and wet his pants. Defendant became angry, grabbed the victim and threw him sideways towards the mattress. The victim's head and shoulder missed the mattress and struck the floor; he got up on all fours, turned onto the mattress and put his head down.

Defendant further admitted in his videotaped statement that when he grabbed the victim and threw him he, "probably did squeeze him hard 'cause I was angry." Defendant then admitted that when the victim put on his shorts the wrong way after his bath on Tuesday, July 28, defendant "got a little mad and I gave him a good biff up sideway of the head and he fell into his bed, the metal edge of his bed." At the conclusion of the interview, defendant was told that he should consider himself in custody and under arrest. Defendant was again given Miranda warnings and asked by Hamilton to make a written statement. Defendant replied, "I don't know. Should I see a lawyer?" After some discussion with Hamilton, defendant agreed to make a written statement. However, after briefly answering Hamilton's questions, defendant stated that he wished to stop. The interview was then terminated and the videotaping ended.

Dr. Theodore James Burke, a resident pathologist at the University of Iowa Hospitals, testified that he assisted in the autopsy of the victim performed on August 1, 1992. The external examination of the victim done at the autopsy revealed bruises or contusions on the head, chest, abdomen and back. More specifically, there was a contusion on the forehead, over the left eye, which had an abrasion running through it, and a fracture of the victim's clavicle on the right side. The internal examination revealed a blood clot on the surface of the brain, hemorrhaging on both sides of the brain and "massive swelling of the brain such that the normal anatomical foldings of the brain were all distorted." Dr. Burke explained that "the brain was attempting to *** ease down *** into the openings where the spinal cord comes up through and connects with the brain." Dr. Burke testified that it was this herniation of the brain which was the ultimate cause of the victim's death. An examination of the inside of the brain revealed a number of injuries related to the recent trauma and a specific injury to the cerebellum that had occurred between two to six weeks prior to the acute injuries. Other acute injuries included the fractured clavicle and hemorrhages to the small bowel mesentery and adrenal gland, located in the abdominal area. An old hemorrhage to the adrenal gland, received approximately two to six weeks prior to the victim's death, was also found. Dr. Burke stated that the recent injuries to the head, adrenal gland, small bowel and clavicle could have occurred near the same time, but may not all have been part of the same incident. Dr. Burke estimated the victim's bruises were two to seven days old and therefore could have occurred on July 27 through 29, while the old injuries to the cerebellum and adrenal gland could have occurred in mid-June. Dr. Burke testified that the victim's acute injuries were very unlikely to have occurred from the child's falling down or against something, but rather were the result of significant trauma, as when someone is thrown or hit with great force.

Dr. Michael Hart, a neuropathologist at the University of Iowa Hospitals, testified that he assisted at the victim's autopsy by evaluating the brain injury. Dr. Hart believed the cause of death to be severe swelling of the brain due to recent injury by a force of considerable magnitude. The extent of the injury seen in the victim's brain was consistent with a child's falling from the top of a seven- to nine-foot stepladder and striking his head on a concrete surface, but not consistent with a child's striking his head on a toilet, bathtub or television stand, nor with a child's being thrown onto a mattress or rug. Dr. Hart stated that due to the magnitude of the injury, the victim's head had to be struck against a hard object. Dr. Hart explained that the victim's death resulted when the swelling of the brain caused its migration down and backwards which compressed those portions of the brain that control respiration and cardiac functions. The autopsy examination also showed a previous injury to the victim's cerebellum which Dr. Hart estimated was between three and six weeks old, making it consistent with an injury that occurred June 22. Dr. Hart believed the victim's fatal brain injury to have been caused by blunt trauma to the head, but testified that it was very difficult to determine whether the victim would have become unconscious right away.

Patricia Vickroy testified that she was a resident and employee of Fieldcrest Village Apartments in Cambridge, Illinois. Vickroy stated that on the afternoon of Sunday, July 26, the victim came to her apartment to play with her daughter and "appeared to be fine." Although Vickroy did not look under the victim's clothes, she examined him fairly closely and did not notice any bruises or marks.

Debbie Kappelman, defendant's cousin, testified that she first met Tonya and Jerry Nelson in June 1992 at the home of her mother, Linda Johnson, in Coal Valley, Illinois. Defendant, Tonya and the victim had come to stay with her mother while her father was in Romania. Kappelman stated that at that time the victim looked malnourished, with a gray skin tone and "dark circles for his eyes." Kappelman testified that on June 22, she went to spend the night at her mother's home. That evening, defendant took the victim upstairs to give him a bath, while she, her mother and Tonya remained downstairs. Shortly thereafter, Kappelman heard the victim babbling and heard defendant saying "Jerry, Buddy, what is the matter." Kappelman and her mother were half-way up the stairs when defendant opened the bathroom door and called for Kappelman. Kappelman stated that when she went into the bathroom, the victim was sitting up in the bathtub "Indian style," and "he wasn't making any sense." Kappelman further testified: "He was saying I, I, I, cause, cause, cause and his eyes were kind of fluttery, you know, and I noticed he had a bit of a bowel movement in the tub so at that time I thought he had had a seizure." After defendant took the victim from the tub, Kappelman felt his body and he was very warm, so they took his temperature. The thermometer showed 105 degrees so Kappelman called the emergency room and they took the victim to St. Luke's Hospital in Iowa. At the hospital, Kappelman saw two bright purple bruises next to the victim's penis and one or two older bruises on his back. After the victim was examined and released, Kappelman, defendant, Tonya and the victim returned to Coal Valley. The next day, June 23, Kappelman took Tonya and the victim to see his physician, Dr. Nagendra.

Kappelman further testified that on June 30, Tonya and the victim came to stay at her home in Cambridge until arrangements could be made for Tonya to obtain low-income housing at the Fieldcrest apartments. During the 10 to 14 days Tonya and the victim stayed with Kappelman, she did not observe any injuries to him. Kappelman testified that although Tonya never slapped or hit the victim, "she was afraid to do anything," because the victim was the subject of an on-going child abuse investigation.

Dr. B.N. Nagendra testified that he was the victim's pediatrician since his birth on November 21, 1988. Dr. Nagendra saw the victim for a cold and ear infection in January 1992 and did not note any unusual findings. Dr. Nagendra next saw the victim on June 23, 1992, as a follow-up to the victim's emergency room visit the previous evening. Dr. Nagendra testified that although the victim was taken to St. Luke's Hospital with a history of shaking and a fever of 105 degrees, when he arrived at the hospital, his temperature was 100 degrees, which is well within the normal range. On June 23, the victim's temperature registered a normal 98.3 degrees, but Dr. Nagendra scheduled a brain wave test, or electroencephalogram (EEG), to determine whether the victim could have had a seizure the night before. Tonya then asked that Dr. Nagendra check the victim's penis and genital area, explaining that he had fallen off a teeter-totter. Dr. Nagendra testified that on June 24, after receiving the report from the victim's emergency room visit, he called the Department of Human Services because he believed it suspicious that the victim was fine the day after supposedly having a 105 degree fever and because the bruises and abrasions he noted on the victim's groin and the head of his penis were not consistent with falling off a teeter-totter. On July 2, Dr. Nagendra saw the victim as a follow-up to another emergency room visit. At that time, the contusions and abrasions on the victim's genitals had healed and he appeared to be in good health. On July 4, Dr. Nagendra received the results of the victim's EEG, which showed no abnormal brain wave activity.

Fern Harper, Tonya Nelson's sister, testified that Tonya began dating defendant in mid-February 1992. Sometime in late February, Harper was playing Monopoly with the victim, Tonya and defendant and witnessed defendant become upset with the victim and punch him in the knee. Harper stated that she and Tonya lived at their grandmother's home with the victim, but that Tonya left with him on June 10 or 11 and went to stay with a relative of defendant. Tonya and the victim returned on June 23 and the next evening Harper noticed bruises on his stomach and groin area and cuts on his penis when she gave him a bath. Later that night, she saw a bruise in the shape of a handprint on his back. On the afternoon of June 26, Harper accompanied Tonya and the victim, among others, to St. Luke's hospital where the victim was examined by a doctor. On June 30, Tonya took the victim and went to Cambridge, Illinois, and Harper did not see him again until July 29 at the hospital in Iowa City. Harper testified that she had previously pled guilty to the fraudulent use of a credit card.

Richard Vermeer, an emergency room physician at St. Luke's Hospital in Davenport, Iowa, testified that on June 26 he was asked by Tonya Nelson and Fern Harper to do a physical examination of the victim. Dr. Vermeer's examination revealed abrasions on the upper pull of both ears, five contusions on his back and two on his ribs that were approximately two weeks old, two purple contusions on his left lower abdomen, and two abrasions on his penis which were a few days old. The victim also had several large brown contusions on his buttocks. Dr. Vermeer made a diagnosis of suspected child abuse, and testified that although some of the victim's bruises could have been accidentally caused, he believed the injuries to the victim's penis were adult bite marks. Dr. Vermeer stated that it would be "very difficult" for a teeter-totter to have caused the injury to the victim's genitals and felt that the bruises on his buttocks were consistent with a spanking received up to two weeks before.

Robert Folberg, a pathologist and ophthalmologist at the University of Iowa Hospitals, testified that he performed a study of the victim's eyes following their removal at the autopsy. Dr. Folberg found retinal hemorrhages and blood surrounding the optic nerve in both eyes and stated that these findings were consistent with trauma. Dr. Folberg believed it unlikely that the victim's eye injuries were caused accidentally because a study of children three years and under suffering accidental head trauma found none who showed evidence of retinal hemorrhages. Dr. Folberg further testified that the presence of blood surrounding the optic nerve and within the white of the eye was consistent with a violent shaking that occurred within several days of the victim's death. Although retinal hemorrhages could be caused by other types of trauma, Dr. Folberg testified that the autopsy results, "exclude a natural cause for the formation of these hemorrhages *** and a violent shaking is one explanation for what happened."

Lori D. Frasier, a pediatric physician, testified as a child abuse expert for the State. Dr. Frasier examined the victim on July 30, 1992, in the pediatric intensive care unit at the University of Iowa Hospitals in Iowa City. The victim was comatose and was attached to a respirator. Dr. Frasier reviewed the victim's medical records, examined his X rays and CAT scans for internal injuries and observed multiple bruises to the victim's forehead, jaw, chest, back, inner arms, forearms, abdomen, and groin. Dr. Frasier also observed an area of localized hair loss on the back of the victim's head, which she stated was likely to be caused by "someone yanking on his hair and pulling it out." Dr. Frasier stated that the cause of these injuries was "shaken/impact syndrome meaning in the course of shaking there is also an impact against something," and that these injuries were intentional and not accidental.

Dr. Frasier further testified that the victim's injuries were not consistent with those of a child who was thrown into the air and missed being caught, hitting his head and shoulder on a couch, nor would they be consistent with a 5 foot, 11 inch, 164 pound man tossing a 3 foot, 5 inch, 35 pound child onto a mattress and partially missing it. Dr. Frasier stated: "There is no way *** that serious of a brain injury, that extent of bleeding, retinal hemorrhages and the kind of trauma that we saw to the external part of this child's body could have been caused by that scenario that you described to me." Dr. Frasier believed that the victim was shaken and either struck against or with a hard object and that his small bowel injury was caused by blows to the abdomen. She testified that following these injuries, the victim would be unconscious very quickly, within a matter of minutes, if he was conscious at all. In Dr. Frasier's opinion, Jerry Nelson was the victim of on-going child abuse.

Wilbur L. Smith, a professor in pediatrics and radiology at the University of Iowa Hospitals, testified as an expert in the area of child abuse. Dr. Smith reviewed the victim's CAT scans and X rays and consulted with the doctors who treated him. Dr. Smith stated that the victim died of a massive head injury caused by acute trauma to his brain equivalent to that experienced by an unrestrained child in a 35- to 40-mile-per-hour car accident or by a child who fell from at least three stories onto concrete. Dr. Smith agreed that the victim's injuries were not consistent with a fall against a toilet, a television stand, or a fall after being tossed in the air and hitting one's head on a couch or being tossed onto a mattress and hitting one's head on the floor. Dr. Smith testified that a single, direct blow trauma would not cause retinal hemorrhages like those suffered by the victim and that there had to be a shaking as well as at least one major impact to account for his injuries.

Dr. Smith further testified that the type of shaking involved herein

"is not the type of shaking that can be done by tossing up in the air or playfully jostling on the knee ***, the shaking is a violent to and fro shaking which results in, first of all, tearing the layers of the brain apart, tearing the blood vessels over the top of the brain so that there is bleeding, tearing the blood vessels in the back of the eyes to cause the retinal hemorrhaging."

Dr. Smith opined that the victim's injuries were not caused by accidental means because even throwing a child across the room, as defendant's statement described, would not generate enough force. Dr. Smith stated: "This is not [a] playful or, or even a minor accident type injury. *** This is a huge injury that is a fatal injury that knocked this child out immediately." In Dr. Smith's opinion the injuries to Jerry Nelson were the result of child abuse.

The defense presented evidence, inter alia, as follows. Patricia Oaks, defendant's mother, testified that she was present at her father's home in Bettendorf, Iowa, on June 21, 1992, and saw the victim swinging on a glider swing. Ms. Oaks next saw the victim on the ground "screaming and crying." She testified that although she did not observe any injuries to the victim, her two granddaughters had been pinched in the groin by sliding forward on the glider swing.

Linda Johnson, defendant's aunt, testified that on June 14, 1992, when the victim, Tonya and defendant came to stay at her home, the victim appeared listless, had dark circles under his eyes and a round spot of hair missing on the back of his head. On June 19, defendant told her that the victim had a sore penis and when she examined it, it appeared red. During the victim's nine-day stay at her home, Johnson did not notice any bruises on the victim. When she returned from shopping on the evening of July 29, defendant was at her home. Having learned the extent of the victim's injuries, she informed defendant and he became pale and looked as if he were going to faint. Defendant did not volunteer an explanation for the victim's injuries, but when she asked, defendant said the victim had fallen in the shower on July 28 and mentioned an incident with the toilet Johnson stated that during their stay at her home, defendant provided for most of the victim's bathing and toilet needs. One morning she went to her basement and found defendant and the victim waiting while the victim's underwear was being dried in the dryer. The victim had been crying and defendant stated that he had fallen on the cement in the basement.

Connie Bowers, a friend of Tonya Nelson, testified that on several occasions she observed Tonya become angry with the victim. Tonya yelled and swore at the victim and once grabbed him by the shoulders but did not shake him hard. Bowers stated that she never saw any bruises on the victim, nor did she see Tonya injure him in any way.

Dee Shannahan, a child protective investigator for DCFS, testified that around July 1, 1992, she received a report of suspected child abuse or neglect involving the victim which had occurred in late June. Shannahan and James Padilla, an investigator for the Henry County sheriff's department, interviewed Tonya and the victim, but found no indication of abuse. They interviewed Tonya and the victim again on July 6 and interviewed defendant on July 6 and 8. Shannahan stated that because the alleged abuse had occurred 10 to 11 days prior to their first observation of the victim, his bruises could have healed. Padilla testified that the investigation was closed because of lack of evidence.

Defendant testified that he was 26 years old and resided with his grandparents in Bettendorf, Iowa. Defendant stated that be did not remember becoming angry at the victim or hitting him while playing Monopoly with Tonya Nelson and Fern Harper in February 1992. Defendant stated that after a three-week absence, he saw the victim on June 4, 1992, and that "Jerry was not the same person he was the last time I seen [sic] him." Defendant described the victim as withdrawn, quiet, and very timid with dark circles under his eyes. Defendant testified that on June 6 Fern Harper told him that the victim was complaining about a sore penis and asked if he knew what may have caused it. On June 14, defendant, Tonya and the victim went to stay with defendant's aunt. On Father's Day, June 21, the three were at defendant's grandmother's home when he heard a child scream, ran outside and learned that the victim had fallen off a glider. On June 22, defendant was giving the victim a bath and ran downstairs to get a washcloth. Defendant stated that when he returned to the bathroom, "Jerry was laying on his back in the bathtub with his head down by the faucets *** and he sat up immediately *** and he started to babble." Defendant called for his cousin when the victim continued to babble, sitting with his head back and his eyes fluttering. Defendant denied hitting or striking the victim or doing anything to injure him during the time they were at his aunt's home.

Defendant further testified that he went on vacation with his grandparents from June 24 through July 5, 1992. He again stayed with Tonya and the victim at his aunt's home from July 13-16. Defendant stated that on the morning of July 16, he and the victim came into the basement after swimming and the victim stepped into a drain in the linoleum floor and fell, hitting the back of his head. The victim was crying but seemed all right and stopped crying shortly before defendant's aunt came into the room. Tonya and the victim moved to an apartment in Cambridge on the afternoon of July 16.

Defendant testified that he arrived at Tonya's apartment between 11:30 p.m. and midnight on July 27, 1992. On the morning of July 28, he gave the victim a bath and noticed a bruise on his hip and three in the lower chest and upper abdominal area. The victim slipped while getting out of the bathtub and struck the left side of his head, but did not cry. Defendant noticed a bruise starting to form along the victim's hairline on the left side. The victim then went into his bedroom to dress, but began putting his shorts on the wrong way. Defendant testified that he "biffed him in the back of the head saying, 'Come on, Jerry. You know how to do it.'" Defendant stated that although he did not intend to hurt the victim or to knock him down, the victim lost his balance and fell into the side of his cot, hitting his chest along the metal edge. Defendant testified that the victim then drank a glass of water and vomited, and could not keep food down. After sleeping most of the day, the victim had some dinner. Around 9 p.m., the victim went into the bathroom and slipped on the wet floor, striking the toilet and "bouncing the back of his head off the floor."

Defendant stated that on the morning of July 29, 1992, the victim "flinched" when he walked by his mother in the hallway. Defendant began to cook breakfast while Tonya took a shower. Defendant asked the victim to get a popcorn bowl, "and when he bent over to pick it up, he just fell forward into it with his hands, and *** it looked like he could have grazed the dresser that they were using as a TV stand." After that, defendant was "horsing around" with the victim, tossing him in the air, and failed to catch him. The victim came down and his head hit the arm of the couch, but he appeared to be all right so defendant returned to the kitchen. Defendant testified that the victim then stated he had wet his pants and defendant became angry, picked the victim up and threw him onto the mattress in front of the couch with his head and upper body hitting the floor. The victim began crying and "come [sic] up on all fours and crawled into the middle of the mattress, *** looked around the room and went down into a fetal position." Defendant picked the victim up and sat him on the counter, but the victim could not speak and then went limp. Defendant took the victim into the bathroom and got Tonya out of the shower. Defendant testified that the victim was moaning and his fingers and lips were turning blue, so he told Tonya to call 9-1-1 for help. Tonya took the victim and went to a neighbor's apartment to use the phone.

Defendant stated that he did not think he would be able to ride with Tonya and the victim in the ambulance, so he went to his cousin's home to get a ride to the hospital. Because his cousin's car was gone he began to walk to his aunt's home in Coal Valley. After arriving there, defendant tried to reach Tonya at the hospital, but was told he would have to wait until Tonya contacted him. Three or four hours later, his aunt returned and told him that the victim was seriously injured. Defendant then went to Bettendorf with his grandparents and found a message on the answering machine from Tonya. After speaking with her, defendant tried to get a ride to the hospital, but before he could do so the authorities arrived and he accompanied them to the police department. Defendant testified that he did not initially tell the authorities everything that had happened to the victim because he was scared. Defendant denied having shaken or punched the victim at any time on July 28 or 29 and denied ever intending to injure him.

On cross-examination, defendant admitted that when he left Tonya's apartment, the ambulance had not yet arrived, and that when he realized his cousin was not home, he did not try to get help anywhere else in Cambridge. Defendant testified that he knew when he threw the victim onto the mattress he had hurt him, but stated, "I never thought it was possible that what I had done caused the extent of his injuries." Defendant further testified that Tonya had never hit her son.

Timothy Brian McDonald, a pediatric anesthesiologist and intensive care physician at the University of Illinois Hospital in Chicago, testified as a rebuttal witness for the State. Dr. McDonald stated that he reviewed the victim's medical records in order to render an expert opinion as to his cause of death, which he categorized as shaken/impact syndrome and battered child syndrome. Dr. McDonald testified that given the various injuries detailed in the autopsy, both recent and old, he believed the victim was subjected to "multiple episodes of forcible, blunt, violent force." Although some of the victim's bruises and brain injuries could have been caused by falling in the bathtub and from being tossed in the air and hitting the couch and floor, none of those injuries resulted in the victim's death. Additionally, the fatal injuries detailed in the autopsy report were inconsistent with a child's being tossed onto a mattress in the manner described by defendant in his videotaped statement, because of the amount of blunt trauma that would be necessary to result in the intestinal and retinal hemorrhages. Dr. McDonald testified that the broken clavicle and the injuries to the mesentery and the head occurred around the same time, and that the shaken/impact head injury which caused the fatal brain swelling occurred shortly before the victim stopped breathing.

The jury was instructed on the offenses of murder, involuntary manslaughter and aggravated battery of a child, and found defendant guilty of two counts of murder and one count of aggravated battery of a child. After defendant waived his right to a jury for sentencing purposes, the trial court found defendant eligible for the death penalty based upon the evidence presented at the guilt phase. At the second stage of the sentencing hearing, the State presented evidence in aggravation that defendant had been arrested for drug possession in 1985, when he was 18. Defendant admitted that he had obtained the drugs, as well as several handguns, a knife, money and jewelry, when he had burglarized the home of a roommate's parents. Defendant was convicted of burglary and the drug charges were dismissed. In 1989, defendant resisted arrest after assaulting his girlfriend and breaking her arm. He was sentenced to one year in jail and ordered to undergo alcohol counseling. In 1990, defendant was arrested for public intoxication, disorderly conduct, and interfering with official acts. A treatment director at the Davenport Center for Alcohol and Drug Services testified that defendant had been admitted to their program in 1983, 1984, 1985, 1986, 1989 and 1992.

Defendant presented, as evidence in mitigation, inter alia, the testimony of Dr. Robert Chapman, a psychiatrist. Dr. Chapman stated that he reviewed "testimony, hospital reports, autopsy reports" and defendant's videotaped statements prior to examining him in person. Based upon this examination, Dr. Chapman testified that in his opinion defendant acted under the influence of an extreme emotional disturbance when he killed the victim. Dr. Chapman believed that abuse suffered by defendant as a child caused him to "snap" and abuse the victim. Dr. Chapman further testified that an adult who had been abused as a child could react violently to incidents that would seem insignificant to others, like the victim's wetting his pants. The ...

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