Appeal from Circuit Court of Champaign County No. 99CF325 Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
In March 1999, the State charged defendant, William M. Brown, with aggravated battery of a child (720 ILCS 5/12-4.3(a) (West 1998)). In July 1999, a jury found defendant guilty of the crime charged. In August 1999, the trial court denied defendant's posttrial motion and sentenced him to 14 years' imprisonment. In that same month, the trial court denied defendant's motion to reconsider. Defendant appeals, arguing the trial court erred when it (1) admitted photographs relating to a prior incident and published them to the jury, (2) failed to place proper limits on the State's use of evidence of defendant's prior bad acts, and (3) failed to clearly answer the jury's question regarding the prior incident. We reverse and remand.
In December 1997, defendant began dating Betty Ward Henderson. Betty had a child, M.J., from a previous marriage. In November 1998, Betty gave birth to a second child, W.B., defendant's son. In February 1999, Betty and defendant were living apart and the children were living with Betty.
On the evening of February 19, 1999, defendant picked up both M.J. and W.B. from Betty's residence. The following morning, defendant called Betty and informed her M.J.'s leg was hurt. Defendant explained M.J. had gotten her leg caught between a bed and a wall, and she was not able to walk on her leg. Later in the morning, defendant returned the children to Betty. As the day went on, M.J. began to run a fever and appeared to experience greater pain. On Sunday morning, Betty, defendant, and defendant's mother, Helen Carol Brown (Carol), took M.J. to the emergency room at Carle Hospital (Hospital). According to Betty, she decided to tell the doctors M.J. was with her the night the leg was injured based on a conversation with Carol. Jon Hendrickson, M.D., examined the X rays taken of M.J.'s leg and determined she had a fracture in her right lower tibia.
Betty, defendant, and the children returned to the Hospital the next day for M.J. to receive follow-up care. While at the Hospital, a Department of Children and Family Services (DCFS) caseworker, Stephen Keith Sizemore, informed Betty and defendant he was removing the children from their care. Betty and defendant returned to Betty's residence, whereupon Roy Akers, her uncle, informed her DCFS caseworker Sizemore was coming to meet with them. Defendant promptly left. Betty told the police officer who accompanied Sizemore that M.J. was with her the night of the injury. Later, Sizemore went to defendant's residence and interviewed defendant about the injury. Defendant initially denied seeing the children within the past week. Eventually, defendant stated M.J. had spent the night at his residence and caught her leg between the wall and the mattress.
The State later charged Betty with obstruction of justice for stating M.J. was in her care at the time of the injury, when in fact M.J. was with defendant. Betty pleaded guilty, and a trial court sentenced her to probation.
The State later charged defendant with aggravated battery of a child. In April 1999, the State made a motion in limine seeking the admission of evidence regarding the circumstances surrounding a prior incident on September 13, 1998 (September 1998 incident), involving defendant and M.J. In July 1999, the trial court held a hearing on the State's motion. Defense counsel opposed the introduction of any evidence of the earlier incident, arguing its prejudicial effect far outweighed any probative value. The trial court ruled the evidence of the September 1998 incident was admissible to show intent and the absence of an accident. When defense counsel asked what evidence would be allowed regarding the September 1998 incident, the trial court responded "[t]hey [could] bring in all, any and all testimony concerning that matter."
In July 1999, the trial court held a jury trial on the State's charge against defendant. At trial, Theresa Ward, M.J.'s maternal grandmother, testified she took M.J. to the Hospital emergency room on September 14, 1998, because M.J. had severe bruising on her face and buttocks. The bruising appeared after M.J. had been left in defendant's care. Theresa confronted defendant about the bruising, and defendant admitted he had spanked M.J. Theresa also identified various photographs of M.J. taken at the Hospital after the September 1998 incident. Theresa also described another incident in which M.J. began screaming when alone in a hallway with defendant.
William Gemme shared a trailer with defendant in September 1998. Gemme testified as follows. On September 13, 1998, Betty brought M.J. to the trailer and left her in defendant's care. When Betty left the trailer, M.J. screamed, and defendant picked her up by the arm and spanked her. Gemme also witnessed M.J. hit her head on the metal part of the couch as well as fall off the couch and hit her head on a floor vent. Gemme identified photographs of the trailer taken after the September 1998 incident.
Officer James D. Reynolds testified he was called to the Hospital emergency room on September 14, 1998, to investigate the alleged abuse of M.J. Officer Reynolds stated M.J. had bruises on her face, back, and buttock. Officer Reynolds identified photographs he had taken of M.J.'s injuries. On September 15, 1998, Officer Reynolds interviewed defendant about the incident. A tape recording of the interview was played for the jury, and the jurors received a transcript of the interview. Defense counsel objected to this witness' testimony because it was cumulative.
Roy Akers, Theresa's brother and Betty's uncle, testified Betty and the children were living with him in February 1999. Akers testified M.J. would throw fits when left alone with defendant. He also testified he saw M.J. the evening of February 18, 1999, and she was walking fine and had no marks or bruises on her face. Akers was present when defendant brought the children home. M.J. had a red mark on her forehead and cheek and was favoring her right leg. According to Akers, defendant told him M.J. had gotten her leg trapped between the bed and the wall, and defendant had released M.J.'s leg.
Joanne Dawson, Akers' roommate in February 1999, testified she did not observe any injuries when she changed M.J.'s diaper the morning of February 19, 1999. Dawson stated the next day M.J. cried when she put weight on her leg.
Jason Davis, defendant's roommate in February 1999, testified defendant returned home on Friday evening with M.J. and her brother. Davis did not notice anything unusual with M.J. before he left for the night. When Davis returned home the next morning, defendant explained to him M.J. had gotten her leg caught between the wall and mattress and had gotten a charley horse. Defendant also explained M.J. had gotten a bruise from falling down some stairs. On Saturday morning, Davis never saw M.J. attempt to walk.
Sizemore, a DCFS caseworker, went to the Hospital on February 22, 1999, to investigate alleged abuse of M.J. based on a hot-line tip. Sizemore spoke with the doctors and nurses and observed M.J. had bruises on her face and her leg was in a cast. Sizemore placed M.J. and her brother in protective custody. Later in the day, Sizemore spoke individually with both Betty and defendant, as well as Akers. He testified as to what transpired during the two interviews. During the interview with defendant, defendant originally denied having contact with M.J. but eventually stated M.J. stayed at his apartment and, when her legs became tangled between the bed and the wall, he simply straightened them out.
Betty testified to the circumstances surrounding the September 1998 incident and the February 1999 incident. She admitted originally lying to doctors and investigators regarding the February 1999 incident. She also explained her sentence on the obstruction of justice charge. As to the September 1998 incident, she stated she left M.J. with defendant and, when she returned, M.J. had bruises on her face. Defendant explained M.J. had fallen into a bed rail and a doorframe. Later, Betty noticed bruises on M.J.'s buttocks. Defendant then told her he had spanked M.J.
Malcolm Hill, M.D., a pediatrician, testified he examined M.J. on September 14, 1998, and found several bruises on the child's face and buttocks. Hill examined and discussed the photographs of M.J. and the trailer. In his opinion, the bruises on the buttocks and cheek were a result of abuse. Some of the other bruises could have been caused by a fall.
Jon Hendrickson, M.D., a diagnostic radiologist, testified he had examined the X rays of M.J.'s right leg and determined she had a nondisplaced fracture of the lower tibia.
Alan Richey, a court reporter, read the statement of defendant at a February 24, 1999, proceeding involving W.B. and M.J. Defendant had stated:
"I know that on my behalf I did not hurt [M.J.] I had her over the weekend of the 22 or 21, whatever it was. That I did notice that she was between the wall and the bed. I proceeded to take her out. And the next morning that's when I noticed that she was not walking like she was yesterday, or the day before. And that's when I contacted Ms. Ward at her uncle's residence. And that is when I took ...