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March 19, 1997



Presiding Justice Cousins delivered the opinion of the court. Gordon and Leavitt, JJ., concur. Leavitt, J., specially concurring.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Defendant Ronald Rakow (defendant) was indicted for the murder of his 3 1/2-month-old son, Paul Rakow. A jury found him guilty of first-degree murder, and the trial court sentenced him to 35 years' imprisonment. On appeal, defendant contends that (1) his conviction must be reversed because the State failed to prove the corpus delicti; (2) the trial court erred by refusing to tender an involuntary manslaughter instruction to the jury; and (3) he was prejudiced by the admission of other crimes evidence.


Defendant Ronald Rakow was arrested and charged with first-degree murder for the death of his infant son, 3 1/2-month-old Paul Rakow. Following a jury trial, defendant was found guilty of first-degree murder and was sentenced to 35 years imprisonment. Before trial, defendant filed motions to quash his arrest and suppress his confession, which were denied by the trial court following a hearing. Because defendant does not now contest the propriety of his arrest or the trial court's refusal to suppress his confession, this statement of facts will not address the motions to suppress or the hearing.

At trial, the following facts were elicited during the State's case in chief. At 4:12 p.m., on the afternoon of Wednesday, December 11, 1991, Chicago fire department paramedic Daniel Murphy and his partner were dispatched to 5922 South Calumet Avenue. They arrived at that location approximately four minutes later. A woman answered the door and said her baby was not breathing. Murphy found the baby on the couch with defendant, who was administering cardiopulmonary resuscitation (CPR). Two other small children were also in the apartment. Three-and-a-half-month-old Paul Rakow was in full cardiac arrest; he had no pulse or heartbeat. Murphy picked Paul up and took him out to the ambulance, where he was placed on a cardiac monitor and ventilator. Murphy asked Paul's mother, Angela Rakow, if the baby had any past medical history, and she explained that Paul was on an apnea monitor, which was not connected at the time. Paul was immediately transported to the hospital, and his mother rode along in the ambulance. Defendant stayed home.

The ambulance arrived at the hospital at approximately 4:23 or 4:24 p.m., and Paul reached the emergency room within a minute or so of his arrival. When Paul arrived in the emergency room at Wyler Children's Hospital, he had no pulse, was undergoing CPR, and was basically "limp and lifeless." The emergency room staff eventually managed to restart Paul's heart with emergency cardiac medications; intravenous access was difficult, so the medicine was administered by needles into Paul's bones. Eleven minutes after his arrival in the emergency room, at 4:35 or 4:36 p.m., the baby's heart began beating again; a pulse was felt in his groin. The emergency room staff then contacted the pediatric intensive care unit (PICU).

Dr. Aaron Zucker, chief of the Pediatric Intensive Care Unit at Wyler Children's Hospital, was the attending physician on the afternoon of December 11, 1991. Dr. Zucker first saw Paul at approximately 5 p.m. in the trauma area of the emergency room. Paul had a breathing tube, which was attached to a mechanical ventilator, his eyes were wide, fixed and dilated, and he did not move or respond to the doctor's touch. After examining Paul, Dr. Zucker sought to speak to Paul's family. Angela was waiting in a small conference room, with her mother and one of Paul's older siblings. Defendant was not present.

Cara Bingenheimer, a registered nurse in the PICU, admitted Paul Rakow into the unit at about 9 p.m. on December 11 and took his vital signs. The admitting diagnosis into the unit was Sudden Infant Death Syndrome, or SIDS. Nurse Bingenheimer worked the overnight shift, from 7 p. m. to 7:30 a. m. At the time he was admitted to the PICU, Paul was breathing by a ventilator, he had no gag or cough reflexes, and his pupils were fixed and dilated. Shortly after his admission, Paul began to have seizures and was given Valium to control the seizures. Paul was hooked up to intravenous feeding tubes and a blood pressure monitor.

Nurse Bingenheimer first spoke to defendant and his wife at Paul's bedside shortly after his admission onto the unit. Because of his critical condition, Paul was Nurse Bingenheimer's only patient during her 12-hour shift. Angela appeared tearful and upset during her initial observation of Paul and all of the equipment. Nurse Bingenheimer specifically remembered that, when she talked to defendant, he seemed "nervous" and "very tense." Defendant wanted to know how Paul was doing but would not wait for an answer before moving on to his next question. Nurse Bingenheimer recalled that defendant remarked that, if Paul were retarded, he would do all that he could for him, and she noted that defendant asked whether Paul could listen to a radio. Nurse Bingenheimer explained that, "there were times when I thought he was caring and loving towards the child, but it was never on a consistent basis." She never saw defendant demonstrate any visible signs of grief on either night she observed him at Paul's bedside; however, defendant and his wife were touching and loving towards each other.

At some point, after Nurse Bingenheimer explained the PICU and its procedures, defendant, while sitting at Paul's bedside, raised the question of organ donation and "Do Not Resuscitate" (DNR) status. Defendant informed Nurse Bingenheimer that, if Paul had no brain function, he wanted a DNR order, and he inquired as to whether Paul would be an appropriate candidate for organ donation. Nurse Bingenheimer responded that it was too early to tell if Paul would be an appropriate candidate. She stated that Paul's condition was too indefinite to determine if he was "brain dead." Nurse Bingenheimer did advise defendant that, if Paul were to die after being in the hospital less than 24 hours, an autopsy would be automatic. Defendant responded that he did not want to have an autopsy because he did not want Paul to be "cut."

Defendant and his wife spoke with another physician, Dr. Lanier, a PICU fellow who had completed her pediatrics residency. Dr. Lanier then contacted Dr. Zucker at home and, with the agreement of defendant and his wife, at approximately 11 or 11:30 p.m. on December 11, a DNR order was entered for Paul Rakow. This meant that, although basic life support would remain intact, no chest compressions or emergency cardiac medications would be used if Paul's heart stopped beating again.

Dr. Zucker testified that, at approximately 10:30 p.m. on December 11, but before the shift changed at midnight, defendant and Angela spontaneously raised the subject of organ donation. The time noted by Dr. Lanier on Paul's chart was 10:30 p.m. Dr. Zucker testified on cross-examination that, to his knowledge, the initial contact person did not contact the Regional Organ Bank of Illinois (ROBI) before defendant and his wife broached the subject. Dr. Zucker stated that it would be highly unusual for a physician to contact ROBI prior to a patient being declared dead; however, he said that a physician could make such a contact if requested to do so.

Dr. Zucker testified that Paul did not respond to stimuli tests at all on December 12. Further, a skeletal X ray of Paul Rakow taken on December 12 revealed that, on two separate areas (one on Paul's left thigh bone, the other on his right shin bone), there were "areas of abnormal peristial reaction," which meant that the outside portion of bone appeared to be "healing." On cross-examination, Dr. Zucker acknowledged that these findings, although abnormal, could not be definitively designated as evidence that Paul had been abused. Dr. Zucker acknowledged further that he never claimed to be aware of how the apparent injuries to Paul's legs were caused.

Nurse Bingenheimer returned to the unit on the evening of December 12. Defendant and his wife were present in the unit shortly after visiting was permitted at 8:30 p.m. Sometime during the early morning hours of December 13, Nurse Bingenheimer stepped away from Paul's bedside to confer with a medical resident in the unit. Defendant approached Nurse Bingenheimer and the resident and "volunteered" an explanation of the events leading up to Paul's admission.

Defendant told Nurse Bingenheimer and the resident that he had been watching Paul on December 11 and that he had not been feeding well by bottle. Defendant said that Paul had finally taken four ounces of formula and that he had laid Paul down with a bottle. Defendant stated that, although Paul had a home apnea monitor and was actually hooked up to the monitor, the monitor was not turned on when defendant laid him down. Defendant said that he had stepped away from Paul for approximately 20 minutes before coming back to turn the monitor on. Defendant told Nurse Bingenheimer and the resident that, when he came back to turn the monitor on, he noticed that Paul was blue and, in defendant's words, "floppy." Defendant told them that he initiated CPR and told his wife to call 911. Nurse Bingenheimer testified that, as defendant related this version of events, he seemed "very nervous" and was in "constant motion" and was "unable to sit still."

When Nurse Bingenheimer observed that Paul was a cute baby, she recalled that defendant retorted that Paul "was" very cute, in the past tense. Nurse Bingenheimer described defendant's demeanor on the evening of December 12 as "varied." She observed that, at times, defendant was "laughing and joking" at the bedside of the child, and just did not appear to be saddened or grieving. Defendant also wanted to confirm that Paul was still on DNR status.

On the afternoon of December 13, at about 2 p.m., Dr. Zucker met with defendant and his wife in a conference room at the PICU. Although Paul had been in the PICU for more than 36 hours, this was the first time Dr. Zucker had met defendant, and Dr. Zucker asked defendant to tell him what he knew about the events leading to Paul's hospitalization. Defendant told Dr. Zucker that his wife had been out of the house, that Paul had been "kind of fussy" and "not particularly interested in feeding." Defendant said that he put Paul down for a nap, on his side, with a bottle "kind of propped in his mouth." Defendant told Dr. Zucker that he did not attach the apnea monitor and that the baby was covered up halfway, to his waist. Defendant then told Dr. Zucker that he discovered Paul when he went to check on him after his wife got home. Paul was not breathing, so defendant then began to do CPR and told his wife to call 911. Dr. Zucker recalled in particular that defendant "actually went so far as to tell me the exact times." Defendant stated that he called the paramedics at 4:43 p.m. and that the paramedics arrived at 4:44 p.m. When Dr. Zucker asked defendant how he was so certain of the exact times, defendant claimed that he checked the times on a bedside clock. Dr. Zucker was aware that Paul was actually clocked into the emergency room close to 4:30 p.m.

Because it had been a couple of days since Dr. Zucker had last spoken with Paul's family, he wanted to discuss his latest assessment of Paul's condition and be certain defendant and his wife understood what was happening to the baby. Defendant stated that he was a security guard at Mount Sinai hospital, and he began to ask Dr. Zucker questions concerning various aspects of Paul's medical condition. Defendant dominated the conversation, which Dr. Zucker estimated took "the better part of an hour," and questioned Dr. Zucker about various "intellectualized scenarios" about what might have happened or possible tests that might be performed. At some point, defendant said that he should have put Paul on the monitor.

On cross-examination, Dr. Zucker stated that he got along fine with defendant at this initial meeting, but he became frustrated because he felt defendant's interruptions were preventing him from conveying the medical information about Paul's condition. Dr. Zucker explained the gravity of Paul's condition and stressed that things had gotten worse since he spoke to Angela on December 11. The only sign of life Paul had displayed, i.e., the shallow, irregular breathing, was now gone. Dr. Zucker told defendant and his wife that he feared Paul was brain dead. Dr. Zucker told defendant and Angela that, if Paul showed no improvement the next morning, December 14, he would perform a second test at 9 or 10 in the morning and, if nothing had improved, Paul would be declared brain dead.

Dr. Zucker further explained that, in the event Paul was pronounced brain dead, the medical examiner's office would have to be notified and an autopsy would almost certainly be required because the death would be "unexplained." Angela became extremely upset, stood up and declared, loudly, that she "would not go along" with an autopsy. Dr. Zucker was aware that Angela had expressed similar concerns to hospital personnel the first night Paul was admitted. Angela stated that she had once accidentally walked into a place where an autopsy was being performed, and she was concerned that the examiners were not respectful to the deceased. Dr. Zucker explained to Angela that an autopsy was mandated in cases where the cause of death was unexplained.

Defendant then asked Dr. Zucker whether an autopsy would preclude the possibility of organ donation. Dr. Zucker responded that each case was different. Dr. Zucker explained that, if Paul was pronounced brain dead on December 14, he would discuss paperwork and the concept of organ donation. Defendant then gave Dr. Zucker his beeper number and told the doctor that he could page him if needed.

On December 14, 1991, Paul failed the second apnea test and Dr. Zucker believed him to be clinically brain dead. The chief of pediatric necrology confirmed Dr. Zucker's belief. The initial death diagnosis for Paul Rakow was Sudden Infant Death Syndrome because there was no other obvious reason for Paul's death. Paul Rakow was officially declared brain dead at 12:35 p.m. on Saturday, December 14.

Defendant and his wife were not present at the hospital when Paul was pronounced dead. As defendant instructed, Dr. Zucker dialed defendant's pager number, and defendant subsequently returned Dr. Zucker's page. Dr. Zucker told defendant that, as they had expected and feared, Paul was officially "brain dead" and that they needed to meet, talk, and complete paperwork. Defendant told Dr. Zucker that he would come "in a little while." Dr. Zucker waited for three to four hours, but neither defendant nor Angela came to the hospital. Dr. Zucker eventually left the hospital, but he told the physician he had left behind that Dr. Kirschner of the medical examiner's office had agreed to permit some of Paul's organs to be donated prior to the autopsy.

When Dr. Zucker paged defendant to inform him his son was dead, defendant and Angela were at a strip mall at the corner of 55th Street and the Dan Ryan. Defendant stopped by the office of Dr. Deatra Young, a family practitioner who had previously treated Paul. Dr. Young had last seen Paul on Wednesday, December 4, when defendant brought him in for a cold. When Dr. Young examined Paul on December 4, she concluded that he was well nourished and developed and of normal height and weight, given his prematurity. Noting that Paul had mild congestion, but that his lungs were clear, Dr. Young prescribed only saline drops and plenty of fluids when she saw him on December 4. She asked defendant to call her the next day and to bring Paul back for a reexamination on Friday, December 6. Neither defendant nor Angela called as instructed, and Dr. Young never saw Paul again. Defendant came into Dr. Young's office on Saturday, December 14, and told her that Paul had suffered respiratory arrect and had been placed on life support at the University of Chicago Hospital. Defendant told Dr. Young that, on December 11, he laid Paul down and propped a bottle in his mouth and, although the leads to the monitor were on, the monitor was not turned on. Defendant's pager kept sounding repeatedly while he was in Dr. Young's office, and he told her that it was the doctor from the hospital paging him. According to defendant, the doctor wanted him to complete some paperwork and he told Dr. Young that he was not going to just "run over there" just because the doctor called. Defendant seemed very irritated that the doctor was paging him, and he said that the doctor just wanted him to sign the papers to stop the life support so an autopsy could be done.

Defendant stressed to Dr. Young that he did not want an autopsy to be done, and he expressed a concern that Dr. Zucker was "in cahoots" with the pathologist who would perform the autopsy. In response to defendant's concerns, Dr. Young called the medical examiner's office and learned that all diagnoses of SIDS require an autopsy. Young told defendant that, if he felt so strongly that the autopsy not be performed at the University of Chicago Hospital, perhaps Paul could be taken to the morgue or the medical examiner's office; however, the logistics of maintaining life support would be complicated. Defendant stressed that he wanted Paul's organs to be donated and that donation was more important to him than the location of the autopsy.

As the autopsy issues were being discussed, defendant's wife then came into the office. She explained that she had been at the laundromat. In response to defendant's inquiry on cross-examination, Dr. Young observed that, during her entire conversation with defendant and his wife on December 14, they did not appear to be at all upset about the condition of their son. They seemed angry at Dr. Zucker. Defendant's pager went off a third time, and he and his wife left the doctor's office and walked to Walgreens. Dr. Young subsequently watched defendant and Angela pass by the glass front of her office approximately three times over the course of more than an hour; they walked to Walgreens, back in the direction of the laundromat, and back towards Walgreens again.

Defendant and Angela eventually went to the hospital later that afternoon and consented to the donation of Paul's organs. At some point early in the morning on Sunday, December 15, 1991, Paul's heart and liver were removed for donation. Paul's heart was ultimately given to a local Chicago child, "Baby Quinn," who was in need of a heart transplant and whose search for a donor heart had been the subject of recent publicity. Dr. Young testified that, when she learned that "Baby Quinn" had received a donor heart, she became "depressed."

Dr. Young called the Rakows to ask whether Paul had been disconnected from life support, and defendant told her that he had. Dr. Young asked whether "Baby Quinn" had received Paul's heart, and defendant said that he was not sure, but that he could not talk at that moment because Channel 5 was on the way out to his home.

After talking with defendant, Dr. Young conferred with Dr. Zucker, as well as a Chicago police detective. Dr. Zucker in turn spoke with a lawyer in the hospital's legal affairs department and, on January 8, 1992, Dr. Zucker talked with a detective from the Chicago police department. Dr. Zucker explained that his suspicions about Paul Rakow's death were prompted by the speed and nature of the Rakows' questions about organ donation. Dr. Zucker had never, in 15 years, seen parents of an infant in critical condition spontaneously raise the issues of a "do not resuscitate" status and organ donation on the very first night an infant arrived in the hospital, particularly where the infant had not previously suffered a long illness and had not yet been declared dead. Dr. Zucker explained that he became even more concerned after talking with Dr. Young.

On December 17, 1991, Dr. Robert Kirschner of the Cook County medical examiner's office performed an autopsy on Paul. The external and internal examinations were undertaken to determine a medical reason for the infant's death. Paul's lungs displayed "peticular hemorrhages," areas of little pinpoint bleeding which are also found in the lungs of children whose deaths were designated SIDS as well as those who died of suffocation. Dr. Kirschner found these to be pathologically insignificant in light of the fact Paul had been on a respirator for three days.

Because the post-mortem examination failed to reveal a medical explanation for Paul's death, Dr. Kirschner asked Sharon O'Connor, the medical examiner's liaison to the Department of Children and Family Services (DCFS), to conduct a death scene investigation. Since 1991, such investigations are required before a death can be designated as SIDS.

On January 6, 1992, child death investigator Sharon O'Connor visited defendant and his wife at home. Defendant talked to O'Connor about the circumstances of Paul's death, and she prepared a report of her findings. Defendant told O'Connor that, in the days leading up to the incident, Paul had been suffering from a cold and was not eating well. Defendant stated that Paul had seen a doctor the previous Saturday and that the doctor had prescribed nose drops. Defendant stated that, on the day of the incident, Paul had a cold and was "cranky" and crying inconsolably. Defendant told O'Connor that Paul was last fed at about 3:55 in the afternoon and was laid down about 4 p.m. Defendant told O'Connor that he went into the kitchen and was there until about 4:13 p.m., when he returned and saw Paul on the bed in what he described as an "unnatural position." Defendant said he found Paul lying on the bed, on his side, with his arm pulled up to his chest and a blanket pulled up around his waist. Defendant told O'Connor that there was nothing around Paul's head or face, and nothing was obstructing his airway.

O'Connor had defendant position a doll on the bed to show how Paul was found. There were no blankets or pillows anywhere in the vicinity of the doll's head. Defendant said that, when he found Paul, he was unresponsive, his lips were blue and his eyes were half open. Defendant never mentioned putting Paul down with a bottle, and neither defendant nor Angela ever told O'Connor that Paul had an apnea monitor.

After reviewing the medical evidence, Paul's medical records, O'Connor's report, and police reports to date, Dr. Kirschner could not find a specific cause for Paul's death. Dr. Kirschner agreed on cross-examination that Paul possessed many of the characteristics that are described as "risk factors" for Sudden Infant Death Syndrome. Accordingly, on January 13, 1992, Dr. Kirschner issued a death certificate that identified the cause of Paul's death as Sudden Infant Death Syndrome. Dr. Kirschner explained that "Sudden Infant Death Syndrome is death in a child that occurs in an infant under the age of one year who has previously been in good health who dies during sleep and on whom an autopsy examination, including toxicological examination, examination of slides under a microscope, and investigation of the death scene and circumstances of death reveal no unusual circumstances. That is what we would call a negative autopsy and negative investigation."

Dr. Kirschner stated that, in April 1992, he amended Paul's death certificate to indicate that the cause of death was homicide by suffocation. On cross-examination, Dr. Kirschner testified that a normal infant could lose consciousness if its nose and mouth were occluded for a minute or slightly more; within two to four minutes, the infant would suffer irreversible brain damage; after four minutes or so of occlusion, death would result. An infant's heart may continue beating for 5 or 10 minutes.

Dr. Kirschner acknowledged that a normal baby of three months old generally should be able to move its head from side to side and lift its head. Dr. Kirschner agreed with defense counsel's assertion that, if only the medical evidence were considered, Paul's death could be deemed inexplicable and designated as SIDS. However, Dr. Kirschner stressed that, in cases involving young infants, there is generally no way to medically distinguish suffocation from SIDS. The suffocation of an infant will usually leave no medically discernable clues.

In January 1992, Sergeant Ridges of the Chicago police department assigned Detective Joseph Fine to investigate the death of Paul. Detective Fine reviewed Paul's medical records and spoke with Dr. Zucker. On February 2, 1992, Detective Fine interviewed defendant's former wife, Vivinia Rakow (Vivinia), at her home on the north side of Chicago. Vivinia testified that she was married to defendant for five years, and they had three sons. In October 1989, their youngest son, Timothy, was three months old, and the other boys were two and three years old. Vivinia was working as an office cleaner, and defendant stayed home with the children while she worked evenings.

In the afternoon of October 17, 1989, Vivinia left Timothy and the other two boys at home with defendant while she went to work. When Vivinia returned home at 9 p.m., defendant was watching television and the two older boys were running around. Timothy was in his crib. When Vivinia went to check on Timothy, she became alarmed when he was unresponsive to her kiss and could not be roused from sleep. Timothy's head seemed tilted to the left. Timothy did not react at all when she placed his pacifier near his lips. Vivinia called defendant over to the crib and asked him what was wrong with the baby. Defendant began shouting at her and initially said that he did not know. Then defendant said that Timothy rolled off the dining room table and hit the floor while defendant was changing his diaper. Defendant told Vivinia that he lied initially because he was afraid she would be angry with him.

Vivinia checked Timothy's breathing and thought that it was faint. Vivinia testified that she immediately took Timothy to the Edgewater Hospital emergency room for an examination that evening. A doctor and a nurse conducted a physical examination of Timothy, and she and Timothy were at the hospital for a couple of hours. Timothy awakened and became responsive during the physical. When Timothy was undressed, Vivinia noticed a bruise on his back. On cross-examination, Vivinia denied that she told doctors that Timothy fell out of bed. She also denied telling doctors that Timothy was beginning to roll over or that defendant was unaware of his ability to roll.

Although she denied using the word "catatonic," Vivinia told Detective Fine that, when she found Timothy in the crib after he had been in defendant's care, Timothy was not moving and was unresponsive. Vivinia also said that, while she did not use the word "contusion," she told the detective that Timothy had a bruise from four fingerprints on his back, and a bruise from one finger on his side, and that she noticed its similarity to a hand when the doctor was examining Timothy. On cross-examination, Detectives Fine and O'Leary acknowledged that neither went to examine the medical records or to Edgewater Hospital to investigate Vivinia's recollection of the October 1989 incident.

On February 29, 1992, Detective Fine interviewed Sharon O'Connor, the liaison officer from DCFS and the medical examiner's office. O'Connor related her interview with the defendant and showed Detective Fine the photographs that represented how defendant told her Paul was found. On March 14, 1992, Detective Fine interviewed Dr. Young. Dr. Young told Detective Fine of her contacts with defendant.

At approximately 7:15 p.m., on the evening of April 26, 1992, Detective Fine and Detective James O'Leary went to defendant's home to conduct an interview concerning Paul's death. Defendant invited the detectives inside and then agreed to accompany the detectives back to Area One headquarters for an interview. Defendant rode with the officers in the unmarked car and was not handcuffed or "led" in any way. Defendant and the detectives arrived back at Area One headquarters at approximately 7:30 p.m., and they went to a large conference room on the second floor.

Detective O'Leary first advised defendant of his constitutional rights by reading him the written Miranda warnings from the Fraternal Order of Police handbook. Detective O'Leary read each right individually and asked defendant after each admonition whether he understood each right. Defendant responded that he understood each one. Defendant informed Detective O'Leary that he was a security guard at Mount Sinai Hospital and had some training in law enforcement and was well aware of his rights. Defendant then stated, specifically, that he wished to waive his rights for purposes of this interview.

Defendant told the detectives that, on December 11, his wife was working, and he was watching the three children. Defendant had worked the night before. Defendant said that, throughout the day, Paul had been fussy, restless and was crying inconsolably. Defendant said that he tried many things to comfort Paul: he picked Paul up, changed his diaper, fed him, burped him, rocked him, and walked around outside with him. Defendant said that he did everything to attempt to console Paul, but nothing seemed to make him happy. Finally, defendant said, shortly before 4 p.m., he laid Paul down on the bed with a pacifier, and he went into the kitchen to prepare dinner. Defendant stated that he neglected to attach Paul's apnea monitor. Shortly thereafter, Angela came home, and they talked in the kitchen about a disciplinary problem he had had with her daughter. Angela left the room to talk with her daughter. Defendant told the detectives that, at around 4:20 p.m., he realized that he had not heard from Paul for some time, and so he went into the bedroom and discovered Paul in bed. According to defendant, Paul was in an "unnatural" position, his eyes were half open, he was not breathing, and he was blue. Defendant then picked Paul up, carried him into the living room, and administered CPR. Defendant told Angela to call 911. The paramedics arrived and took Paul to the hospital.

The initial conversation with defendant took about 45 minutes and, at approximately 8:15 p.m., the detectives and defendant took a 10-minute break. When they went back into the room, Detective Fine reminded defendant of his Miranda rights, and defendant said he remembered each one of them. Detective Fine then confronted defendant with the discrepancies in the version of events he related to Dr. Zucker and to DCFS. Specifically, Detective Fine pointed out that defendant told Dr. Zucker he laid Paul down with a bottle and a pillow, while defendant told Sharon O'Connor of DCFS that Paul did not have a bottle or pillow. Detective Fine wondered how a three-month-old baby could drink a bottle without having it propped by a pillow, and defendant explained that he forgot to tell DCFS that he really laid Paul down with a pacifier.

Detective Fine then told defendant that he had spoken with Vivinia and that Vivinia had told him about an incident with Timothy. At trial, both detectives related that, in response to Detective Fine's mention of Vivinia and Timothy, defendant just "stared" past them and "looked straight ahead." Both detectives described how defendant expressed resentment of Vivinia's devotion to Timothy.

Detective O'Leary described how defendant then became overcome with emotion: "He then -- tears kind of welled up in his eyes. His face turned a little red, and he put his head down on his arms and after a couple of seconds he said, you want to know the truth? I'll tell the truth. I'll tell you what happened." After a few minutes of crying, defendant regained his composure and asked the detectives if they had their "pens ready." Defendant then began to relate the events of December 11.

Defendant told the detectives that Paul had been fussy all that day and had cried all day long. Defendant said that he tried everything he could to console Paul and then he became very frustrated with the situation. Defendant explained that he had worked the night before, he was tired, and he could not take the crying. Defendant said that he realized that the only way he could stop Paul from crying was "to stop him from breathing." Defendant said that he then took Paul into the bedroom, placed him face down on the pillow, and went into the kitchen to fix dinner.

The detectives asked defendant if he knew Paul was going to die. Defendant said that he realized that Paul would smother and die if no one picked him up or removed his face from the pillow. Defendant said that the apnea monitor was not connected when he left the room. Defendant told the detectives that, when Angela came home, he talked with her in the kitchen, and she then went into the bedroom. Defendant heard a "scream," he then went in and began administering CPR to Paul, while Angela called 911.

At approximately 10 p.m., defendant was placed under arrest. Defendant expressed relief at telling his story. Detective Fine then contacted Assistant State's Attorney Henry Simmons (ASA Simmons). Detective Fine briefed ASA Simmons as to the course of the investigation and defendant's previous statements, and ASA Simmons reviewed the file and attempted to contact some of the physicians involved.

ASA Simmons initially met defendant alone and introduced himself. ASA Simmons told him that he would be back in a few minutes. A few minutes later, at approximately 11:30 p.m., ASA Simmons and Detective Fine went back into the room where defendant was sitting. Simmons advised defendant of his Miranda rights from memory, pausing after each admonition to ask defendant whether he understood. Defendant again acknowledged that he understood each right, and he agreed to speak with ASA Simmons. After defendant and Simmons talked for 40 to 45 minutes, Simmons asked defendant whether he would prefer to have his statement transcribed verbatim by a court reporter or memorialized in a handwritten statement, which Simmons would write in his presence. Defendant elected a handwritten statement because he told Simmons that he did not want to wait for a court reporter.

At approximately 12:45 a.m., Assistant State's Attorney Simmons began to prepare a handwritten statement relating what defendant had said. Detective Fine left Simmons and defendant alone in the room while Simmons wrote out defendant's statement. Simmons wrote out the statement as defendant provided him with the facts that he had orally relayed to Detective Fine earlier. At approximately 1:30 a.m., defendant's written statement was finished. Detective Fine returned to the room, and Assistant State's Attorney Simmons handed defendant the statement and asked him to read the rights portion. Defendant read the written admonition of his rights and agreed to sign the acknowledgement and waiver. Over defendant's objections, the statement was introduced as evidence at trial.

In his statement, defendant recounted the incident on December 11 when he unsuccessfully tried to console Paul. Defendant stated that as soon as Angela left, Paul began to cry very loudly, and defendant fed him a bottle. Defendant put Paul in his rocker in front of the television, and Paul continued to cry loudly. Defendant gave Paul saline drops for his nose, and Paul cried even more. The girls were watching television in the living room, and Paul's crying was starting to give defendant a headache. Paul finally stopped crying for about ten minutes when defendant put him in his baby rocker, but then he started to cry again. Defendant even tried to bathe Paul in a washbasin in the bedroom in an effort to calm him down, but Paul continued to cry. Defendant then took Paul outside for fresh air, but after 30 minutes of Paul crying outside, defendant brought Paul back in. Defendant again put Paul down in his baby rocker, but Paul continued to cry loudly.

Defendant said that, at this point, he "started to lose it," and became angry at Tamara, who was running around. Defendant said that he told Tamara to stop running, but Tamara told him that she did not have to listen to defendant. Defendant said Paul was crying throughout this time. Defendant said he took Paul into the girls' room and sat on the bed rocking Paul in his arms. Paul continued to cry, and defendant became angry and decided to stop Paul's crying and the only way he could do it was to stop his breathing.

Defendant then described how he silenced Paul's crying. Defendant said that he placed Paul's face down on the pillow and said he "didn't give a shit anymore" and left him there. Defendant also said "I don't give a fuck let your mother take care of you." Defendant explained that he "did not want to deal with Paul's crying anymore" because it "really got to him" and "he could not take it anymore." Defendant did not put the apnea monitor on Paul.

Defendant stated that, "after he put Paul's face down into the pillow," he went back to the kitchen and "decided that he would wait until Angela came home before Paul's face would be removed from the pillow." It was a couple of minutes before 4 p.m. when defendant "decided to put Paul's face down into the pillow." Angela came home at about 4 p.m. and defendant began to tell her about Tamara's disobedient behavior. Defendant stated that Angela had no idea Paul's face was face down into the pillow, and Angela did not go to pick up Paul because he was talking to her about Tamara.

Defendant said that Paul was face down into the pillow for about 15 minutes before he decided to go into the room. Paul was then blue in the face and cold. Defendant then started CPR and an ambulance was called. In his statement, defendant said that it was his anger and his frustration with watching the children that made him put Paul's face into the pillow. He said he just "could not take the crying anymore."

Defendant admitted that "he lied to his wife about what happened. He told Angela that he "layed [sic] Paul down with a bottle and a pillow next to him." Defendant further acknowledged that he also "lied to every doctor he spoke to." Defendant stated that he requested that an autopsy not be performed since he was afraid that "they would find out that Paul was suffocated." Defendant also stated that "the reasons [sic] he requested to have Paul's organs donated was to hide what really happened and to make his wife feel better." Defendant said "he could not live with himself any longer" knowing that he killed his son. He said he could not "live with his lies any longer." Defendant said that, when the police came to his house on April 26, 1992, he agreed to come to the police station to tell the police the truth about what happened. Defendant said he had lived with his lie too long. He explained that it was his anger that made him want to stop Paul from breathing.

After defendant signed his written confession, Assistant State's Attorney Simmons approved murder charges against defendant. On cross-examination, Simmons acknowledged that defendant, at various times, referred both to putting Paul's face "down into" and "down on" a pillow. However, Simmons stated, on redirect examination, that he had no difficulty understanding that defendant said he was trying to make Paul die by putting his face into a pillow.

Following the testimony of ASA Henry Simmons, the State introduced into evidence three photographs of Paul's body after the organ donation, the Polaroid photographs that depicted how defendant placed the doll representing Paul in the DCFS interview, a photograph of the exterior of the Rakow home, as well as defendant's written statement. The State then rested.

Defendant made an oral motion for a directed finding of acquittal. Defendant urged that the evidence was insufficient to prove guilt and that his confession was not corroborated by independent evidence. The trial court denied defendant's motion.

Defendant's first witness was Rodney Maruyama (Maruyama), a social worker who had presented workshops on male grief in response to SIDS. Maruyama testified about grieving, guilt and SIDS, as well as about his own experiences as a SIDS father. On cross-examination, Maruyama explained that "SIDS is a diagnosis of exclusion, which means that in the autopsy, they will look for causes of death," and SIDS is diagnosed when the autopsy reveals no cause of death. Maruyama observed that, although some parents might not want to subject their child's body to autopsy, such a stance seemed inconsistent with favoring organ donation. Maruyama also noted that it would be uncommon for a father in the "intense anxiety period" to run errands and to delay responding to a doctor's page. Maruyama stated that he did not interview defendant or evaluate him in any way, and he acknowledged that he could not offer any opinion of substance concerning the propriety of defendant's behavior.

Defendant also offered the expert testimony of Dr. Marie Valdes-Dapena (Dr. Dapena), who had done extensive research in the area of infant pathology and SIDS. Dr. Dapena testified on direct examination that "a pathologist who calls a case Sudden Infant Death Syndrome, or SIDS, is dealing with a baby who dies suddenly and unexpectedly, and whose death remains unexplained after the performance of an adequate postmortem examination, an autopsy, and examination of the slides, investigation of the circumstances of that death, the scene, and complete knowledge of the [family's] medical history." Dr. Dapena explained that SIDS is a "diagnosis of exclusion." Dr. Dapena testified on direct examination that, when she reviewed the autopsy report, slides, and summary of Paul's medical history, she could not exclude a diagnosis of SIDS.

On cross-examination, Dr. Dapena stressed that her opinion that SIDS could not be excluded was based solely upon the medical evidence, i.e., the microscopic slides and medical reports. Dr. Dapena explained further that in cases involving suffocation with a soft object, there would be no medical evidence to distinguish SIDS from suffocation. Dr. Dapena testified that an infant may be suffocated, accidentally or intentionally, by occlusion of the airways. She added that an infant's reaction to occlusion will vary depending upon what the airway is blocked with, but "a normal infant, wouldn't accept [blockage of an airway] passively, but would struggle to get an airway." Dr. Dapena opined that, "if you put a newborn baby face down in its crib, he will easily lift his head, turn it, and re-establish his airway." Dr. Dapena also opined that the struggle to establish an airway could last two to three minutes. Dr. Dapena explained further that this struggle for an airway may not occur in "SIDS babies." "Present thinking about SIDS babies is that they are obtunded in that way; that they want [sic] respond as you and I would and say, wait a minute, this is not good air, I'm going to get fresh air by turning my head. This baby may be incapable of responding by lifting its head and turning its head."

Dr. Dapena explained that some pillows are seen as dangerous because they may hamper a child's head movement, and she noted that pediatricians recently advocated putting babies to sleep on their backs or on their sides. Dr. Dapena opined further that apnea monitors do not prevent SIDS and that apnea monitors are no longer recommended by the American Academy of Pediatrics, except in those cases in which a baby has suffered "an apparently life threatening event."

Dr. Dapena agreed on cross-examination that, if a pathologist had information about the circumstances of a baby's death, i.e., that the baby was suffocated, the determination of whether the death was SIDS or suffocation would depend solely upon the reliability of that circumstantial information. Dr. Dapena also agreed that, from the physical findings at the autopsy, she could not determine whether this case involved SIDS or suffocation. Petechial hemorrhages, as were found in Paul's lungs, were not a diagnostic factor.

Defendant also offered the testimony of Jean Cummings (Cummings), who was an organ procurement coordinator for the Regional Organ Bank of Illinois (ROBI) during 1991. Cummings, who was assigned to Paul's case when he was declared brain dead, came to the hospital, spoke with defendant and his wife, and secured consent forms. Defense counsel asked Cummings several questions concerning recordkeeping at ROBI. Cummings acknowledged that the records did not reflect whether the initial contact was made at the request of the physician or the request of the parents.

Defendant also offered the testimony of Dr. Jerome Zwierzycki, the Edgewater Hospital physician who saw Timothy Rakow on October 18, 1989. Dr. Zwierzycki acknowledged on direct examination that he did not contact DCFS concerning any abuse of Timothy Rakow, and his records did not reflect a suspicious hand print on Timothy or that Timothy was brought in the night before. Dr. Zwierzycki said that, based on his chart, Vivinia said that Timothy fell off the bed on the day before while defendant was changing his diaper. The chart indicated that Vivinia said Timothy fell because defendant was unaware that Timothy could turn over. Dr. Zwierzycki noted trauma to Timothy's head and chest, and he prescribed Tylenol.

On cross-examination, Dr. Zwierzycki stated that his testimony was based strictly upon his records. He had no independent recollection of Timothy or Vivinia. The records reflected that Timothy was in the hospital for 2 1/2 hours. Dr. Zwierzycki stated that the records reflected Timothy was injured. The infant had a bruise on his chest by his right armpit that extended diagonally to his left side and lower chest. Timothy was also "irritable" when touched on the right side of his chest. Timothy also had bruises on both sides of his head; the infant had a swollen bump on the right side of his head, above his ear. The emergency room staff took X rays of Timothy, but no evidence of fractures was found.

Defendant and his wife, Angela, both testified at trial. Both defendant and Angela described Paul's condition and disposition. On direct examination, Angela asserted that Paul, who had been born six weeks premature, had been lifting his head up and moving it from side to side from the time he was six or eight weeks old.

Angela testified that Paul was on an apnea monitor, which had been prescribed for him by a high-risk infant specialist at Mount Sinai Hospital during a routine check-up in Paul's second month. The device was battery powered and could be moved from room to room. The leads to Paul's monitor were strapped to his chest at all times because one of the girls had lost the only other set of leads while playing with them. However, both defendant and Angela explained that they never used the apnea monitor for Paul during nap times when they were awake themselves and could observe Paul during his nap time.

Angela testified that, on the morning of December 11, 1991, she left the apartment at 8:30 a.m. to go to work as a cashier at Dock's Restaurant at 35th and Wabash. On cross-examination, Angela acknowledged that she was scheduled to work on December 11 from 10 a.m. until 5 p.m., but because the day was slow, she got off early and punched out at about 3 p.m.

When Angela got home, Tiffany and Tamara were in their chairs, watching television in the living room. Defendant was in the girls' room (adjacent to the living room). She stated that she noticed Paul was in the girls' room, in Tiffany's bed. According to Angela's direct testimony, she passed within a couple of feet of Paul and saw that his face was not in a pillow; on cross-examination, she claimed not to notice whether his apnea monitor was on, because she "wasn't looking." On redirect examination, Angela insisted that Paul looked fine to her.

According to Angela, she and defendant then talked about how their days had gone, and defendant told her that Tamara had been disrespectful toward him. While defendant was in the kitchen making dinner for the whole family and while Angela was disciplining the girls, she "yelled" to defendant to change Paul's diaper. Defendant claimed that, when he found Paul, the baby was lying on his side, was blue around his nose and lips, and was "just floppy" when defendant picked him up. Defendant then called out to Angela that "the baby is not breathing." Angela responded "what the hell do you mean my baby is not breathing?" and took Paul from defendant.

On cross-examination, Angela stated that she did not see what position Paul was in when he was found. Angela estimated, on direct examination, that she had been in the house for 10 or 15 minutes by the time this occurred. Defendant took Paul back and told Angela to call the paramedics. Defendant administered CPR. The paramedics arrived and took Paul to the hospital. Angela rode in the ambulance to the hospital, defendant stayed home with the girls. Both defendant and Angela estimated that defendant did not get to the hospital until at least 9 p.m., 4 1/2 hours after she and Paul arrived. Defendant explained that he was delayed because they could not find a babysitter, and he had trouble catching a cab.

Angela claimed that an unnamed, attractive female doctor first suggested the idea of organ donation to her as she waited with her mother and a chaplain in the "cry room" near the emergency room. According to Angela's direct testimony, she told the doctor she "was not thinking about that" and "just wanted her son home"; however, Angela said that she told the doctor that she "would consider it" and "would give [sic] some thought."

On cross-examination, Angela claimed that, when the unnamed doctor asked her if she would consider organ donation, she told her that she needed information about it and had to talk it over with her husband, who had not yet arrived. Angela claimed that this initial conversation concerning organ donation occurred before she talked to Dr. Zucker and before defendant arrived at the hospital. Angela stated that she had her initial conversation with Dr. Zucker at about 5:30 or 6 p.m. on December 11, and she did not like his "unprofessional" attitude.

According to defendant, when he arrived at the PICU, he met with Angela in a small conference room, where they were joined by an unnamed female doctor. However, defendant also stated that, 30 minutes after he arrived, he went to the nurses' station and asked to speak with someone. Defendant insisted, however, that he did not initiate discussions about organ donation.

On cross-examination, defendant offered that the doctor discussed Paul's condition with them at his bedside. Defendant stated that he did not talk to the nurses about organ donation until after he talked to the doctors. Angela claimed, on direct examination, that about an hour to an hour and a half after defendant arrived at the hospital, the same unnamed female doctor who initially approached her about organ donation came to speak with both of them concerning Paul's condition. On both direct and cross-examination, Angela said that this doctor said Paul's condition was "very poor" because it took 30 to 45 minutes from the time Paul was found to restart Paul's heart. Angela stated that a DNR was discussed and that she was familiar with what that meant because her family had decided on such an order for her grandmother.

Angela stated that this unnamed doctor also asked again if they would consider organ donation or needed any questions concerning donation answered. According to Angela, she told the doctor that she wanted more information and the doctor took them into her office, dialed the telephone, and handed it to Angela. A woman from ROBI started asking her questions such as "who was donating, what is the condition, the prognosis." Angela, not knowing what to say, handed the phone back to the doctor, who started answering the questions.

On cross-examination, Angela claimed that defendant was with her during these conversations. Angela claimed, on cross-examination, that the unnamed doctor was the only hospital staff member who discussed organ donation with them before she spoke with Jean Cummings on December 14. Defendant also stated that the unnamed doctor first initiated discussions about organ donation. On cross-examination, defendant claimed that, when he first saw Paul in the PICU, he still hoped that Paul would pull through. Defendant denied, however, that he became angry or offended by the unnamed doctor's broaching of the topic.

On cross-examination, defendant professed that he did not remember talking to Nurse Bingenheimer at the hospital about what had happened to Paul. He denied telling the nurse that he laid Paul down with a bottle and returned 20 minutes later, to turn the monitor back on, and found Paul "blue" and "floppy." Defendant claimed that he did not say that because that was not what occurred. Defendant acknowledged, on direct examination, that he did refer to Paul in the past tense (that he "was cute"), but explained that Paul no longer looked "cute" in the pediatric intensive care unit with all of the life support systems in place.

Angela and defendant went back to the hospital on the afternoon of December 13, and they met with Dr. Zucker, a social worker, a nurse, and another individual. Angela stated that Dr. Zucker discussed Paul's condition further. According to Angela, Dr. Zucker said that tests were done that night and early that morning and that Paul was declared brain dead at 12:35 p.m. that afternoon.

Both defendant and Angela testified concerning Dr. Zucker's discussion of an autopsy. Angela stated that, when the doctor said that an autopsy had to be done "in the event of Paul's death," she told him that "he wasn't butchering my son, I didn't want a damn autopsy I just wanted them to leave my son alone." According to Angela, when Dr. Zucker told her an autopsy had to be done, she stormed out of the room.

Over the State's objection, Angela was permitted to testify that she had previously had a stillborn child who was autopsied and that she was dismayed by the appearance of the child's body at the funeral. Angela was also permitted to testify, over the State's objection, that she had once gotten lost in the coroner's office and wandered into a room where a cadaver was kept.

Angela testified that she found Dr. Zucker "very, very cold," "heartless," and "very callous." Angela estimated that the meeting took five minutes. Angela testified that she asked Dr. Zucker if an autopsy would prevent organ donation, and Dr. Zucker told her that he would need to check with the coroner's office. On cross-examination, defendant could not recall whether he or Angela asked Dr. Zucker whether an autopsy would preclude organ donation, and when asked about his signed statement that he wanted organ donation to "hide what really happened" and make Angela "feel better," defendant responded that he "didn't say exactly that." On direct examination, Angela explained that she was not adverse to organ donation because it appeared to be a surgical procedure where a particular organ was removed; in contrast, an autopsy was "completely different."

According to defendant, he just happened to stop by Dr. Young's office while they went to the laundromat on the afternoon of December 14, to let her know what had happened. According to Angela, she told Dr. Young during the December 14 meeting that Dr. Zucker had a cold, callous attitude and that she did not want an autopsy. Defendant told Dr. Young that he thought Dr. Zucker and the medical examiner's officer were "in cahoots." Dr. Young called the coroner's office, and defendant and Angela learned that an autopsy was mandated in a case like Paul's.

In January 1992, defendant talked to DCFS investigator Sharon O'Connor and placed a doll in the position where baby Paul was found. At trial, defendant claimed that he found baby Paul with a pillow above him but that was not how he laid the baby down. Defendant claimed at trial that he told O'Connor that he laid Paul down on the pillow with his head turned to the side, but when he found Paul, the baby was on his side with right hand clutched up against his clothes.

Defendant physically demonstrated, for the jury, his description of how Paul was positioned when defendant laid him down and how he appeared when defendant returned to him 10 or 15 minutes later. Defendant also demonstrated for the jury how the bottle was positioned when he laid Paul down. According to defendant, when he found Paul, his head was no longer on the pillow but was down below it, his face was turned to the opposite direction, his right arm was up under his chest, and the bottle was off to the side. Defendant stated that no blankets or pillows were near Paul's face.

Regarding his interview at the police station on April 26, 1992, defendant's testimony at trial was essentially the same as recounted above. Following closing arguments, the jury was instructed as to the offense of first-degree murder. Defendant had requested that the jury be instructed as to involuntary manslaughter. Defendant argued that defendant's acts of placing Paul on the pillow and failing to turn on the monitor could be deemed reckless. The State responded that the evidence showed either that defendant intentionally suffocated Paul or that he died of SIDS without any culpable act by defendant. The court refused to instruct the jury as to involuntary manslaughter, noting that the defense evidence did not show failure to attach the monitor was "reckless" disregard for Paul's safety. Defendant and his wife had a pattern of consistently not attaching the monitor without any culpable intent.

The jury deliberated and found defendant guilty of first-degree murder. Defendant subsequently filed a motion for a new trial which was denied following argument. A presentence investigation was ordered and, following a hearing in aggravation and mitigation, defendant was sentenced to a term of 35 years' imprisonment. Defendant appeals.

We affirm in part; reverse in part and remand.



Defendant first contends that his conviction must be reversed because there was no evidence outside of his confession to prove the corpus delicti. The State argues that defendant's confession was sufficiently corroborated by independent evidence. Our supreme court has held that proof of the corpus delicti, or body of evidence, requires both proof of injury or loss as well as proof of criminal agency. People v. Dalton, 91 Ill. 2d 22, 29, 434 N.E.2d 1127, 61 Ill. Dec. 530 (1982); People v. Lambert, 104 Ill. 2d 375, 378, 472 N.E.2d 427, 84 Ill. Dec. 467 (1984). However, the court has also held that the corpus delicti cannot be proved by the defendant's confession alone. People v. Willingham, 89 Ill. 2d 352, 360, 432 N.E.2d 861, 59 Ill. Dec. 917 (1982); Lambert, 104 Ill. 2d at 378. The requirement of proof apart from a defendant's own statements reflects a long-standing mistrust of extrajudicial confessions. People v. Furby, 138 Ill. 2d 434, 447, 563 N.E.2d 421, 150 Ill. Dec. 534 (1990). Therefore, there must be some independent evidence or corroborating evidence outside the confession which tends to establish that a crime occurred. Willingham, 89 Ill. 2d at 360. If there is such evidence and that evidence tends to prove the offense occurred, then that evidence, if it corroborates the facts contained in the defendant's confession, may be considered along with the confession to establish the corpus delicti. People v. Bell, 233 Ill. App. 3d 40, 48, 598 N.E.2d 256, 174 Ill. Dec. 59 (1992); Willingham, 89 Ill. 2d at 361. However, the independent evidence need not establish the crime beyond a reasonable doubt. Willingham, 89 Ill. 2d at 361.

The determination whether there is sufficient independent proof of the corpus delicti will be judged by the particular circumstances of the case. People v. Furby, 138 Ill. 2d 434, 450, 563 N.E.2d 421, 150 Ill. Dec. 534 (1990). We initially note that the nature of SIDS and its diagnosis complicate the application of the principles of corpus delicti in the instant case. As stated in the expert testimony, SIDS is defined as a baby who dies suddenly and unexpectedly, and whose death remains unexplained after the performance of an adequate post-mortem examination, an autopsy, and examination of the slides, investigation of the circumstances of that death, the scene, and complete knowledge of the family's medical history.

In other words, SIDS is a diagnosis of exclusion. Although the cause of SIDS is unknown, there are risk factors common to SIDS infants, such as the age of the infant (SIDS usually occurs with infants between two and six months of age), the time of year (SIDS deaths usually occur in winter months), the gender of the infant (SIDS usually occurs in males), infants born prematurely, and infants who suffered respiratory infections prior to the death. However, there is virtually no medical evidence that would distinguish the death of an infant from SIDS from the death of an infant by suffocation. Therefore, it is possible that no evidence outside of defendant's confession exists to prove that Paul Rakow died of suffocation instead of SIDS.

Defendant specifically argues that his statement constituted subjective manifestations of guilt--not objective descriptions of actual events. Defendant cites several articles from medical and counseling journals concerning parental guilt and SIDS. However, we must honor the State's request to disregard references to the articles because they are not apart of the record on appeal. This court should only consider that which appears in the record on appeal. People v. Heaton, 266 Ill. App. 3d 469, 477, 640 N.E.2d 630, 203 Ill. Dec. 710 (1994).

In any event, we can consider Dr. Maruyama's testimony that parents of SIDS infants often feel a sense of guilt in trying to determine the reason for their child's death. Defendant asserts that his grief over his loss led to feelings of responsibility and guilt, especially in light of his failure to attach the apnea monitor, and these feelings of guilt were insufficient grounds upon which to sustain a conviction. Defendant states that lack of corpus delicti is evident by the fact that Dr. Kirschner did not designate Paul's death as a homicide until he was aware of defendant's statement. Defendant also relies on Dr. Dapena's testimony that laying a baby face down into pillow would not block adequate airway because the neck muscles of a healthy three- or four-month-old child would enable the child to turn his head to establish a new airway. Therefore, defendant asserts that because Paul was so unlikely to have died as a result of suffocation, there is compelling reason to believe that any incriminating statements defendant made were the product of unfairly blaming himself for his son's death and were not actual descriptions of the events that occurred.

The State argues that, although SIDS is a diagnosis of exclusion, Paul's death ceased to be inexplicable when defendant provided the explanation. We agree. We recognize that the requirement that independent evidence corroborate a confession stems from an attempt to assure the truthfulness of the confession, which "'may be suspect if it is extracted from the one who is under the pressure of a police investigation whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past'". Willingham, 89 Ill. 2d at 359, quoting Smith v. United States, 348 U.S. 147, 153, 99 L. Ed. 192, 199, 75 S. Ct. 194, 197 (1954).

However, we agree with the State that defendant's confession is amply corroborated by independent evidence that renders it credible and worthy of belief. For example, defendant stated in his confession that he sought "to have Paul's organs donated * * * to hide what really happened" and he did not want an autopsy to be performed because he was afraid that "they would find out that Paul was suffocated." In fact, testimony revealed that defendant initiated discussions about a "Do Not Resuscitate" order organ donation and expressed an unwillingness to permit an autopsy for Paul from the time Paul was admitted into the PICU. Dr. Zucker's suspicions regarding defendant's behavior stemmed from the fact that defendant was adamant about the "Do Not Resuscitate" order and organ donation on the very first night that Paul had arrived in the hospital and had not yet been declared brain dead. Also, Dr. Young testified that defendant stressed to her that he did not want an autopsy to be performed on Paul. Based on this evidence, we do not believe that defendant's confession was based on his subjective feelings of guilt. Instead, we believe that his confession was a clear reflection of his past actions.

Defendant further argues that the State failed to prove the elements of the offense beyond a reasonable doubt. It is necessary to prove the corpus delicti, or body of the offense, in order to prove a defendant guilty of that offense beyond a reasonable doubt. People v. Bell, 233 Ill. App. 3d 40, 598 N.E.2d 256, 174 Ill. Dec. 59 (1992). Failure to prove the underlying offense beyond a reasonable doubt results in the reversal of the conviction for the offense. Bell, 233 Ill. App. 3d at 48. When presented with a challenge to the sufficiency of the evidence, a reviewing court will sustain a criminal conviction if "after viewing the evidence in the light most favorable to the prosection, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979).

Specifically, defendant argues that there was not sufficient medical evidence to prove that defendant's act of placing Paul's face in the pillow caused his death. Defendant again relies on Dr. Dapena's testimony that Paul could have moved his head to establish a new airway. Also, defendant points to the fact Paul carries almost every risk factor common to SIDS babies. Defendant argues that, without introducing any evidence that Paul could have died by merely being placed faced down on a pillow, the State has failed to prove beyond a reasonable doubt that defendant caused Paul's death.

The State, on the other hand, argues that testimony did not reveal that an infant could not have died as a result of being placed face down on a pillow. The State also relies on testimony given by Dr. Dapena in which she stated that some pillows are seen as dangerous because they may hamper a child's head movement. The State, therefore, argues that since the jury saw the pillow on which defendant laid Paul, the jury properly rejected defendant's "impossibility" theory.

We believe that two Illinois cases regarding SIDS and corpus delicti are instructive in resolving this issue. In People v. Eveans, 277 Ill. App. 3d 36, 660 N.E.2d 240, 214 Ill. Dec. 49 (1996), defendant was convicted of murdering two of her children by suffocation. Defendant had previously been convicted of murdering another child. The court held that the evidence was sufficient for a trier of fact to find defendant guilty beyond a reasonable doubt where defendant had admitted she killed her children to several people on different occasions. Also, the children's deaths were consistent with suffocation and more than one infant death had occurred in a family. The court stated that the medical evidence alone did not prove suffocation beyond a reasonable doubt, but the medical evidence and the surrounding circumstances corroborated defendant's statements and tended to show the commission of the offense. Eveans, 277 Ill. App. 3d at 49.

In People v. Osborne, 183 Ill. App. 3d 5, 538 N.E.2d 822, 131 Ill. Dec. 447 (1989), defendant was convicted of suffocating a nine-month-old child by wrapping the child's mouth with a bandage. Testimony revealed that the child had received a DPT vaccination prior to its death, and studies had shown a relationship between the vaccination and SIDS. Two experts testified that suffocation was the cause of death and another testified that the cause of death was undetermined. The trial court found the autopsy report listed the cause of death as undetermined but suggested suffocation was the cause. The appellate court held that this suggestion, when taken in conjunction with the defendant's testimony concerning the binding of the victim and the wrapping of his mouth, was sufficient to support defendant's conviction. Osborne, 183 Ill. App. 3d at 10.

In the instant case, because death by suffocation is indistinguishable from death by SIDS, we must consider the surrounding circumstances of Paul's death. Here, defendant confessed that he did not want an autopsy performed on Paul to hide the fact that he had put Paul's face in the pillow. Testimony revealed that defendant was adamant about not wanting an autopsy performed on Paul. The autopsy revealed that Paul's lungs displayed peticular hemorrhages, which are found in the lungs of children whose deaths are designated as SIDS or suffocation. The medical evidence alone did not prove suffocation beyond a reasonable doubt, but it corroborated defendant's statements and tended to show the commission of the offense. A jury may consider the medical evidence in context and is not required to search out a cause of death compatible with innocence. Osborne, 183 Ill. App. 3d at 10.

Defendant relies on a Washington Supreme Court case, State v. Aten, 130 Wash. 2d 640, 927 P.2d 210 (1996). In Aten, defendant was convicted of criminal negligence in the death of her four-month-old child. Defendant had confessed that she suffocated her child with a pillow. Independent evidence revealed that the infant had an upper respiratory infection the night before her death. Defendant found the child dead the next morning. After the infant died, respondent began storing and giving away some of her own possessions. Respondent voluntarily admitted herself into the hospital for grief and depression. The autopsy concluded that the infant had died of SIDS or of acute respiratory failure. However, suffocation also could have caused acute respiratory failure. Based upon the autopsy alone, the pathologist testified that he could not reasonably and logically infer that the infant died as a result of a criminal act. He could draw that inference only haltingly after considering the medical history of the child. In a majority opinion, the Washington Supreme Court affirmed the appellate court's reversal of respondent's conviction. The court reasoned that the corpus delicti is not established when independent evidence supports reasonable and logical inferences of both criminal agency and noncriminal cause. Therefore, since the independent evidence supported a reasonable and logical inference of innocence, that is, that the infant died of SIDS, that was not sufficient to establish the corpus delicti. Aten, 130 Wash. 2d at 661, 92 P.2d at 221-22.

In Aten, the court, while holding that there was insufficient evidence independent of respondent's statements to establish the corpus delicti, recognized that the application of the corpus delicti rule has been the subject of much criticism and the court even wrote in Aten: "Instead of the traditional corpus delicti rule, Federal courts have adopted the more relaxed rule that the independent corroborating evidence must only tend to establish the trustworthiness of the confession. An increasing number of State courts have followed this trend. We are not among them." Aten, 130 Wash. 2d at 662, 92 P.2d at 222.

In our view, defendant's reliance on Aten is also misplaced because the confession in Aten was not as trustworthy as the confession in the case sub judice. There, the respondent at one time stated that she placed a pillow over the infant's head, while at another time and at trial, she stated that she placed her hand over the infant's face for a brief period of time. Further, there was evidence that indicated the respondent was suffering from severe depression following the infant's death. Aten, 130 Wash. 2d at 661, 92 P.2d at 224.


Defendant next contends that the court erred in refusing to tender an involuntary manslaughter instruction to the jury. A defendant is entitled to an instruction consistent with his theory of his case if there exists evidence to support that theory. People v. Sims, 247 Ill. App. 3d 670, 678, 617 N.E.2d 411, 187 Ill. Dec. 203 (1993). If there is even the slightest amount of evidence in the record to justify an underlying theory, the instruction must be given. Sims, 247 Ill. App. 3d at 678. The rationale for permitting the instruction is that it gives the jury a third option if it believes that the defendant is guilty of something, but not the greater offense, and thus avoids having the jury acquit rather than convict of the greater offense. People v. Jefferson, 260 Ill. App. 3d 895, 908, 631 N.E.2d 1374, 197 Ill. Dec. 915 (1994).

In People v. Foster, 119 Ill. 2d 69, 87, 518 N.E.2d 82, 115 Ill. Dec. 557 (1987), the Illinois Supreme Court explained the difference between involuntary manslaughter and murder:

"The basic difference between involuntary manslaughter and murder is the mental state which accompanies the conduct causing the homicide. To sustain a conviction for murder, there must be sufficient evidence by which it is shown that the accused either intended to kill or knew of the strong probability of death or great bodily harm. [720 ILCS 5/ 9-1 West 1992)]. Involuntary manslaughter is defined as the killing of a human being by actions which 'are likely to cause death or great bodily harm *** and [are] performed recklessly.' [720 ILCS 5/9-3(a) (West 1992)] A person acts recklessly when he 'consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.' [720 ILCS 5/4-6 (West 1992)]." Foster, 119 Ill. 2d at 87-88.

The court also explained when it is necessary to instruct a jury on the offense of involuntary manslaughter:

"When there is evidence in the record which, if believed by the jury would reduce the crime of murder to manslaughter, an instruction defining the lesser crime should be given. [Citations.] An involuntary manslaughter instruction should not be given where the evidence clearly shows that the homicide was murder." Foster, 119 Ill. 2d at 87, citing People v. Simpson, 74 Ill. 2d 497, 501, 23 Ill. Dec. 579, 384 N.E.2d 373 (1984).

In the case sub judice, defendant asserts that the jury should have been instructed on involuntary manslaughter since there existed some evidence that he acted in reckless manner by failing to attach the apnea monitor. The State argues that defendant's failure to attach Paul's monitor did not constitute a conscious disregard or a "substantial and unjustifiable risk" of causing Paul's death. We agree. Defendant and his wife routinely chose not to attach Paul to the monitor during nap times, usually while one or both parents were awake. Therefore, their actions did not demonstrate a disregard for Paul's life but, rather, a pattern of behavior in monitoring Paul's breathing while asleep. Furthermore, as the expert testimony revealed, the apnea monitor was only a precautionary measure to warn Paul's caretaker that he had stopped breathing. Thus, we do not believe that defendant's failure to attach the monitor to Paul was a likely cause of his death or caused great bodily harm.

Defendant also argues that he was entitled to an involuntary manslaughter instruction as a result of defendant's placing Paul's face in or on a pillow and leaving him there. Defendant asserts that a jury could have concluded that while defendant's act was reckless, defendant neither intended to kill Paul nor knew that this act made it probable that Paul would suffer death or great bodily harm and that this act qualified only as a "conscious disregard" of a "substantial and unjustifiable risk." We agree. Although defendant's confession stated that he wanted to stop Paul's crying by stopping his breathing, a jury might have found that defendant did not have the requisite intent to murder. Further, defendant stated in his confession that, when he placed Paul down, he stated, "I don't give a fuck, let your mother take care of you." A jury also might have inferred from this statement that defendant did not have the requisite intent for murder but that he acted recklessly. Furthermore, although there was testimony that an infant could move his head to establish an airway, the jury also might have found that, in light of Paul's breathing problems, defendant's placing Paul's face in the pillow constituted a gross deviation from the standard of care that a reasonable person would exercise in the situation. Thus, a jury might have found that defendant disregarded a substantial and unjustifiable risk. Therefore, we hold that the trial court erred in refusing to grant the involuntary manslaughter instruction, and this cause must be reversed and remanded for a new trial.


Lastly, defendant contends that he was prejudiced by the admission of evidence of other crimes or bad acts against his son, Timothy, by a previous marriage to Vivinia Rakow. The State responds that the evidence was relevant to show defendant's motive and intent as well as to the voluntariness of his confession.

It is axiomatic that evidence of other crimes is not admissible as proof of a defendant's propensity to commit crime. People v. Johnson, 239 Ill. App. 3d 1064, 1074, 608 N.E.2d 36, 180 Ill. Dec. 914 (1992). The danger is that such evidence proves too much and may lead the jury to convict defendant solely upon the belief that he is a person of bad character and thus likely to have committed the crime charged. People v. Nunley, 271 Ill. App. 3d 427, 431, 648 N.E.2d 1015, 208 Ill. Dec. 93 (1995).

Evidence of other crimes may be introduced, however, if it proves a fact in issue, or if it shows modus operandi, identity, motive or intent. Johnson, 239 Ill. App. 3d at 1074. Furthermore, whenever evidence of another crime is offered, there must be some similarity between the other crime and the crime charged in order to ensure that it is not being used to establish the defendant's criminal propensity. Johnson, 239 Ill. App. 3d at 1074; People v. Bartall, 98 Ill. 2d 294, 310, 456 N.E.2d 59, 74 Ill. Dec. 557 (1983). The requisite extent of the similarities differs, however, with the purpose for which the evidence is offered. When the evidence is offered to prove criminal intent or the lack of an innocent frame of mind, general similarities will suffice to justify admission. People v. Illgen, 145 Ill. 2d 353, 372-73, 583 N.E.2d 515, 164 Ill. Dec. 599 (1991).

Defendant argues that there was no sufficient showing that Timothy was ever abused, much less that defendant had committed those acts. Defendant concludes, therefore, that the entire basis of the State's claim that defendant had abused another child rested in Vivinia's testimony that she once saw a bruise on Timothy's back that resembled a hand print. Dr. Zwierzycki, who examined Timothy at the hospital testified, however, that he did not see a bruise on Timothy's back. Defendant contends that, in spite of Dr. Zwierzycki's rebuttal testimony, he was forced to defend himself in a trial within a trial because the evidence was not relevant to motive, intent or absence of accident.

We disagree. We believe that the incident with Timothy and the incident with Paul are similar enough to satisfy the less stringent test that is applied when evidence is admitted to prove intent. Both children were approximately the same age when the incidents occurred and both happened while the infants were in the care of defendant, and in both cases, defendant lied about the circumstances of the incidents. Furthermore, the trial court instructed the jury to limit its consideration of the evidence to issues of motive and intent.

We also agree with the State that, even assuming arguendo the evidence was not permissible to show intent, motive or absence of accident, the evidence was necessary to establish the voluntariness of defendant's confession. We note that defendant was prompted to make a confession when the police confronted him regarding the incident with Timothy. Therefore, this information would have been revealed as a part of the officers' testimony.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part, reversed in part and remanded.

Affirmed in part, reversed in part, and remanded.

GORDON and LEAVITT, JJ., concur.

LEAVITT, J., specially concurring.

Justice Leavitt specially concurring:

While I am in full agreement with the majority's conclusion that the matter should be reversed and remanded due to the trial court's error in failing to grant the defendant's tendered involuntary manslaughter instruction, I am compelled to part company from our holding insofar as it would permit into evidence proof that the defendant had committed other crimes or bad acts as against his son, Timothy.

The State introduced into evidence testimony by the defendant's ex-wife Vivinia that in October 1989, more than two years before the alleged murder, she arrived home one day and found Timothy unconscious. The boy had been left in the defendant's care that day. The defendant later explained that Timothy had fallen off a table. In any event, Timothy was taken to the hospital, where he remained for several hours. When Vivinia returned home with him, she put him to bed and noticed bruising on his back that appeared to be a handprint. She could not state how the bruising occurred or whether it occurred at the hospital. She acknowledged that the doctor did at one time put his hand on the baby's back:

Q. Mrs. Rakow, when you spoke to the police that day, didn't you tell them that in the hospital the Doctor put his hand over the baby's back, and his hand fit on the impression? Did you tell them that?

A. Yes, I did.

Evidence of prior bad acts should not be admitted to show either a general propensity to commit crime or to demonstrate a defendant's bad character. People v. Kimbrough, 138 Ill. App. 3d 481, 484, 485 N.E.2d 1292, 93 Ill. Dec. 82 (1985). Such evidence is objectionable "not because it has no appreciable probative value, but because it has too much." People v. Lucas, 151 Ill. 2d 461, 485, 603 N.E.2d 460, 177 Ill. Dec. 390 (1992).

Notwithstanding, evidence of a defendant's crimes other than those charged may be relevant and admissible if offered to prove modus operandi, intent, identity, motive, or absence of mistake. People v. Robinson, 167 Ill. 2d 53, 62, 656 N.E.2d 1090, 212 Ill. Dec. 256 (1995). Although such evidence need not be proved beyond a reasonable doubt, it must "tend to" show that the defendant committed or participated in the commission of the other crime. People v. Miller, 254 Ill. App. 3d 997, 1010, 626 N.E.2d 1350, 193 Ill. Dec. 799 (1993).

I do not think that the evidence presented regarding Timothy's experience over two years earlier tends to show that the defendant committed any bad act against him. There is no evidence in the record from which a reasonable inference can be drawn that the defendant caused the "catatonic" state which prompted Vivinia to take Timothy to the hospital. Even allowing for the bruising on the child's back, Vivinia could not confirm that the defendant was responsible for it. Indeed, her testimony supports an altogether different explanation. In addition, the testimony of Dr. Zwierzycki's, who examined Timothy, undermined Vivinia's account of the events. He stated that his charts indicated that Vivinia brought the boy to the hospital the day after, rather than on the day, of the incident. The evidence here simply does not tend to establish that any prior bad act occurred.

I note that the trial judge admitted this evidence because he found it relevant on the issues of motive and intent. Even assuming that the evidence presented tended to show that the defendant caused Timothy's injury, I do not think that either exception applies here. Nor, given the extremely prejudicial import of the evidence, do I believe we should accept the State's alternative invitation that we allow these facts into evidence because they are "highly relevant to the circumstances of defendant's confession." The statement made by the defendant speaks for itself, and no context was needed to further explain to the jury the circumstances under which he made it. Our case law does not support the admission of a mere allegation that the defendant could be responsible for some act other than that charged when that allegation is made by a police officer to the defendant immediately before the police take the defendant's statement.

For these reasons, I would not permit the admission of this evidence on retrial.


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