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People v. Kolzow

November 02, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DONNA KOLZOW, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice O'mara Frossard

Appeal from the Circuit Court of Cook County

No. 96 CR 24531

Honorable Eugene Campion, Judge Presiding.

Following a bench trial, defendant Donna Kolzow was convicted of involuntary manslaughter for the death of her three-month-old son, who died of heat stroke after she left him unattended in a car for four hours. She was sentenced to three years' probation, with the conditions of counseling and six months in custody in the Cook County Department of Corrections.

On appeal, defendant presents the following issues: (1) whether the evidence was sufficient to support the conviction of involuntary manslaughter beyond a reasonable doubt; (2) whether the court properly admitted the results of an "experiment" as to temperatures inside a car; (3) whether the court improperly relied on matters outside the record in convicting defendant; and (4) whether, in the alternative, the sentence should be vacated as the court considered matters outside the record and whether this sentence was excessive.

We affirm.

FACTS

Defendant related the following in her statements to police: On the night of August 11, 1996, defendant was out with her three-month-old baby, Jeffrey. From 11 p.m. until 2 a.m., she and the child were driving around in a car with a friend of defendant, Eileen Hoover. While driving around, defendant called Officer Jeffrey Simpson, an on-duty Riverside police officer, whom she and Hoover later met at a parking lot around 1 a.m. After feeding the child with a bottle at approximately 2 a.m., she drove Hoover home.In her initial statement to police, defendant said that she and the baby spent the night at Hoover's home until she drove home at 6:30 a.m. However, in a subsequent statement, defendant said that after she dropped Hoover off at home, she ran into Officer Simpson again, who asked her to meet him at the Riverside Swim Club. She met him, got out of the car to talk and drove home around 4:30 a.m. She and the baby arrived home around 5 a.m., but instead of going inside, defendant parked her car in a nearby parking lot and read a book. She stated that she did not go inside because she did not want to wake her sleeping stepmother. At 6:30 a.m., defendant said she noticed her stepmother's car was gone and parked her car in front of the house. She turned off the engine, closed the driver's window, and locked the car. Leaving the baby in the car, defendant then went in the house. She stated she immediately went to the bathroom as she had diarrhea. Defendant said she then set the alarm for 9:30 a.m., lay on the couch and fell asleep. She said she forgot about the baby, who was locked outside in the car.

Defendant stated the alarm never went off and that she awoke at 10:30 a.m. on her own. She said she remembered the baby was still in the car when she noticed he was not in the playpen. She went out to the car and saw the child's face was completely purple. After bringing him into the house, she said she felt his hands and knew he was dead. She then called her father and her workplace. When her sister called the house, defendant told her the baby was dead.

Officer James Glosniak of the Hillside police department arrived at the scene shortly after 11 a.m. on August 12, 1996, in response to a call from one of defendant's relatives. He testified that, when he arrived, the rear windows of the car were down about four inches and the front windows were closed. He said the car was facing west. The child was inside the house, and the officer found no pulse. The child's body was still warm, and his cheeks and hands were a dark, reddish purple color. Defendant told the officer that she had left the baby in the car from 7 a.m. until 10:30 a.m. that morning with the windows rolled up. However, when later asked whether she had rolled the windows down, she stated she had not touched anything in the car since she removed the baby. Realizing that the child could not be resuscitated, Officer Glosniak called his supervisor to the scene.

An autopsy conducted the next day revealed the baby died of heat stroke, and Dr. Edmond Donoghue of the Cook County medical examiner's office concluded that "parental neglect [was] a significant factor" in the child's death. Donoghue noted that the baby's nutrition, hydration and cleanliness were good and stated on cross-examination that it appeared the child had been well cared for.

After obtaining a search warrant, detectives retrieved an alarm clock from defendant's apartment. Detective Heldt said the clock was displaying the correct time before it was removed from the apartment, and the alarm was set for 6 a.m.. On cross-examination, the detective acknowledged he did not test the alarm to see if it functioned properly.

On August 15, 1996, Hillside police detectives conducted an experiment in an attempt to determine the temperature inside a car under circumstances similar to those under which the baby died. Detectives used defendant's car and a newer model of her car which was borrowed from a local dealer and parked the vehicles in a sunny parking lot facing west. In each car they placed an infant seat and a thermometer covered by a paper bag to block any direct sunlight. The thermometers were positioned so that they could be read from outside the car. The rear windows in defendant's car were left down four inches and the windows in the dealership's car were all closed. The parties stipulated as to the hourly temperatures on the mornings of August 12 and August 15; temperatures were slightly higher on August 12, the day the baby died, than on August 15, the day the experiment was conducted. At trial, the court allowed State witness Detective Wollenberg to testify as to the results of the experiment and the hourly temperatures inside each of the cars.

George Gourley, who lived across the street from one of defendant's friends, was also called as a State witness. He testified that a few days prior to baby Jeffrey's death, he was sitting on his front porch when he saw defendant park her car on the street and go inside the friend's house. He testified that it was a very hot evening, and the windows of the car were rolled up. About 20 minutes later, defendant came out of the house and retrieved the baby, who had been in the car. Gourley further testified that "at ...


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