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03/19/97 PEOPLE STATE ILLINOIS v. RONALD RAKOW

March 19, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RONALD RAKOW, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 92 CR 1172122. THE HONORABLE EDWARD FIALA JUDGE PRESIDING.

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.

BACKGROUND

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 ...


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