Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 99--CF--217 Honorable Amy Bertani-Tomczak, Judge, Presiding
The opinion of the court was delivered by: Justice Lytton
The defendant, Erin Thurow, was charged with involuntary manslaughter of a family or household member (720 ILCS 5/9--3(f) (West 1998)). The jury was instructed on the elements of simple involuntary manslaughter (720 ILCS 5/9--3(a) (West 1998)), and she was found guilty. At sentencing, the judge found that the defendant was eligible for both an extended term sentence, due to the tender age of the victim (730 ILCS 5/5--5--3.2(b)(4)(i) (West 1998)), and an enhanced sentence based on the victim being a family or household member. The court sentenced her to eight years in prison. The issue on appeal is whether the judge's consideration of extended term and sentencing enhancement factors violate the holding of Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm in part, vacate in part, and remand for further proceedings.
In November 1997, Erin Thurow and her three-year-old daughter, Tianna, were living in a homeless shelter in Elgin, Illinois. At the shelter they met Michelle Mostowski, who was pregnant. The two women became friends. In early December 1997, Erin and her daughter moved to an apartment in Joliet, and on Christmas Eve? Mostowski moved into the defendant's apartment. From late December 1997 until April 1998, the defendant was the sole financial support of the women and her daughter. In April 1998, the defendant was in the delivery room with Mostowski when her son Michael was born. After Michael's birth, the defendant continued to provide the only income, and Mostowski would watch both the children.
In September 1998, Mostowski returned to work. At times the women's shifts overlapped, and they had to find babysitters for their children. Finally, in January 1999, they decided to work separate shifts, so that each could look after the other's child. Mostowski worked from 7 a.m. until around 3 p.m. at a local Burger King; the defendant worked from 4 p.m. until midnight at a local McDonald's. Apparently all was well between the two women except that the defendant believed Mostowski spoiled her infant son. The two argued occasionally about this between the months of September 1998 and January 1999. The defendant also told Mostowski that she had trouble consoling Michael after Mostowski went to work, and that his constant crying was upsetting her.
On February 5, 1999, the defendant was very ill. She was treated at the emergency room for dehydration, bronchitis, a sinus infection and a throat infection. She left home for the weekend to visit family in Elgin and get some rest. When she returned on Monday, she went back to work. Between Monday afternoon and Thursday morning she worked three shifts, for a total of 29 hours. After her shift on Wednesday, February 10, she came home around midnight and fell asleep on the couch with her boyfriend. The defendant awoke around 6 a.m. on February 11. Mostowski left for work around 7 a.m. and put Michael in his walker. The defendant's boyfriend also left for work, and Tianna watched cartoons. The defendant was awakened around 10 a.m. by Michael's crying. She tried to calm him but was unsuccessful. Around 11 a.m., she took him to his crib for a nap. He did not calm down, so she did something she had begun to do frequently over the last two months: she put her hand over his mouth to calm him. He relaxed, took a gasp of air, and his legs and arms moved. She then turned him over on his stomach, pulled his blanket up, and went into the living room.
Around 1:30 p.m. her boyfriend arrived. She borrowed his car and went shopping. According to the defendant, when she returned home around 2:30 p.m. her boyfriend said he had checked on Michael while she was out, and the child was still asleep. Her boyfriend then left.
Around 3 p.m. the defendant went in to check on Michael. He was cold and lifeless. She became hysterical. Her daughter came in to see what was wrong and then she too became hysterical. The defendant called Mostowski at work and told her to come home because there was an emergency. The defendant then called her employer and told her the baby was dead. The manager told her to call 9-1-1. She did, and the 9-1-1 operator instructed her on CPR, which she performed. The emergency crews and police arrived, as did Mostowski. The child was taken to the hospital and the police left. The defendant and her daughter remained in the home.
About two hours later, the police returned to the home to talk to the defendant. She described her day, but omitted any reference to her holding her hand over Michael's mouth. The defendant and her daughter were then taken to the police station. After the police questioned her daughter, they spoke to the defendant. They told her that there were some inconsistencies between her story and her daughter's. At that point the defendant broke down and told the story of her day again, this time including the fact that she had put her hand over Michael's mouth. She was then arrested.
Ultimately, the defendant was indicted for involuntary manslaughter with the enhancement that the victim was a family or household member, a Class 2 felony. The indictment, as presented to the jury, read:
"said defendant, acting in a reckless manner, performed an act likely to cause death or great bodily harm to some individual, in that she covered the mouth and nose of Michael Mostowski with her hand, thereby causing the death of Michael Mostowski, a family or household member of the defendant."
At trial, the judge instructed the jury on the elements of the offense:
"to sustain the charge of involuntary manslaughter, the State must prove the following propositions: First proposition, that the defendant performed the acts which caused the death of Michael Mostowski, and, second proposition, that the defendant performed those acts recklessly, and, third proposition, that those acts were likely to cause death or great bodily harm."
The State proposed no instruction on the part of the indictment regarding the victim as a family or household member. The defense did not ...