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02/21/96 PEOPLE STATE ILLINOIS v. AMBER THOMAS

February 21, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
AMBER THOMAS, DEFENDANT-APPELLANT.



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

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

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Following a jury trial, defendant, Amber Thomas, was found guilty of aggravated battery to a child in violation of section 12-4.3(a) of the Criminal Code of 1961 (720 ILCS 5/12-4.3(a) (West 1992)) and was sentenced to 10 years' imprisonment. It is from the judgment of conviction that defendant appeals to this court pursuant to section 6 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, ยง 6) and Supreme Court Rule 603 (134 Ill. 2d R. 603).

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

On June 17, 1993, at approximately 9:30 p.m., defendant brought her 17-month-old son, S.T., to the emergency room of Wyler's Children's Hospital. S.T. was in critical condition and close to death. According to Dr. Clark Sheffield, defendant stated that S.T. had been fine all day; however, at about 9 p.m. the child awoke crying with his eyes rolling backwards in his head.

Dr. Daniel J. Ledbetter performed surgery and several tests on S.T. and found that the child had extensive internal injuries to the liver, the kidney and the duodenum. Moreover, the child had an immense tear in his liver that had caused excessive hemorrhaging. Dr. Ledbetter estimated this injury to be only a few hours old. S.T. also had several fractured bones of various ages and a rib fracture that was of recent origin. In addition, Dr. Ledbetter and Dr. Sheffield noticed multiple bruises on the child's abdomen, back and chest that were between 1 and 3 days old. Dr. Sheffield asked defendant if anyone had hit S.T. Defendant answered in the negative but stated that S.T. had been playing with 3-year-old children on the playgrounds.

Due to the nature of S.T.'s injuries, one of the attending doctors notified the Chicago police and the Department of Child and Family Services (hereinafter DCFS). Bernice Marshall, a DCFS investigator assigned to investigate S.T.'s injuries, testified that defendant did not cry when Marshall explained S.T.'s critical condition. Chicago police youth officer Jack Collins also testified that defendant had no reaction when she was told about S.T.'s condition or taken to see S.T. Marshall further testified that defendant offered two possible explanations for S.T.'s injuries: (1) that a month prior to the incident someone ran into S.T. with a bicycle; and (2) that she had taken the child to the park at 8 p.m. that evening where he had fallen off of the slide. Officer Collins arrested defendant at Wyler Children's Hospital on June 18, 1993.

At trial, the State presented two witnesses who claimed to have observed defendant beating S.T. First, S.P., an 8-year-old girl who lived with her uncle, Adell Moore, defendant and S.T. in an apartment during the time in question, testified on direct examination that she remembered seeing defendant hit S.T. S.P. described an evening in June 1993, on which S.T. began "messing" with defendant's clothes. Defendant responded by grabbing S.T. by the wrist, lifting him off of the ground and hitting him on his back and on his side with her fist. S.P. further testified that the following day she, defendant, Moore and S.T. were in the kitchen, and S.T. began digging in the garbage can. Defendant responded by hitting the child in the back with her fist and telling him not to do that again. Later that evening, defendant took S.T. to the hospital. On cross-examination, S.P. stated that, prior to the trial, she could not remember all of the answers to the questions that the assistant State's Attorneys were asking her and that they helped her by telling her the answers.

At trial, Moore testified to the same events as did S.P., but with more detail. According to Moore, on June 16, 1993, S.T. began touching defendant's clothes with his sticky hands, and, in response, defendant hit him with her fist approximately 30 or 40 times. Moore also described the incident in the kitchen which occurred on June 17, 1993. Moore recounted that S.T. began digging through the trash can, and defendant punched S.T. in the chest and hit him in the head with a steel cabinet handle. Moore stated that during this incident S.P. was in and out of the house playing. Later that evening, S.T. awoke crying. Moore testified that he insisted that defendant take the child to see a doctor and gave her $20.

In the defense's case-in-chief, defendant testified that on June 16, 1993, she and S.P. spent the day shopping and visiting S.P.'s aunt and did not return home until around 11:30 p.m. Defendant put S.T. to bed and went to sleep herself. According to defendant's testimony, nothing happened to S.T. that day, and there was no incident involving S.T. messing her clothes. Defendant further testified that on June 17, 1993, at around 4 or 5 p.m., her friend, Lossie Bailey, came over and asked if S.T. could come out onto the porch to play with some other children. Defendant allowed S.T. to play on the porch. However, when she went outside to get him, Moore's mother informed her that Moore had taken S.T. Moore returned with S.T., who was asleep, approximately 1 hour later. Moore put the child in bed and immediately left. Thomas testified that she noticed nothing wrong with S.T. at that time. When Moore returned that evening, he went into S.T.'s room. Moore picked up S.T. who was moaning. Defendant kept calling the child's name, but he did not respond. Finally, defendant decided to take the child to the hospital.

On rebuttal, Officer Donald Peterson testified that he was present when Officer Collins and Marshall interviewed defendant. Peterson stated that, during the interview, defendant never mentioned allowing S.T. to go out onto the porch to play with the other children on June 17th, nor did she mention Moore taking S.T. and returning with him later. Rather, Peterson testified that defendant only spoke of taking S.T. to the park at 8 p.m. on June 17th and of S.T. falling off of the slide. Furthermore, Peterson stated that he had interviewed S.P. and Moore prior to trial. Peterson testified that S.P.'s account of the events at that time was consistent with her trial testimony. The prosecutor then asked Peterson if Moore's account of the events given prior to trial was consistent with S.P.'s. The trial court sustained defense counsel's objection to this question, struck Peterson's response and told the jury to disregard what it had heard.

Assistant State's Attorney Ray Regner also testified on rebuttal that he interviewed defendant on June 18 and 19, 1993. Regner stated that during neither interview did defendant mention allowing S.T. out onto the porch to play nor Moore taking S.T. and returning with him later. Moreover, Regner testified that he had spoken to S.P. and Moore prior to trial and that both witnesses told him what they had observed defendant do to S.P. The prosecutor then asked if the witnesses' accounts ...


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