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People v. Pollock

October 18, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
TABITHA POLLOCK, APPELLANT.



The opinion of the court was delivered by: Chief Justice McMORROW

Docket No. 90960-Agenda 3-May 2002.

On November 3, 1995, defendant Tabitha Pollock was indicted in the circuit court of Henry County on charges of first degree murder (720 ILCS 5/9-1(a)(2), (a)(3) (West 1994)) and aggravated battery of a child (720 ILCS 5/12-4.3(a) (West 1994)) after her three-year-old daughter, Jami Sue Pollock (Jami), died as a result of being struck by defendant's paramour, Scott English (Scott). A jury found defendant guilty of felony murder (aggravated battery of a child) and aggravated battery of a child on a theory of accountability. The conviction for aggravated battery of a child was merged with the murder conviction and defendant was sentenced to a term of 36 years' imprisonment for the murder conviction.

Defendant appealed her conviction and sentence to the appellate court. In a published opinion, defendant's conviction for murder was affirmed. *fn1 309 Ill. App. 3d 400. Thereafter, defendant's petition for leave to appeal was granted. 177 Ill. 2d R. 315. For reasons that follow, we now reverse defendant's convictions.

BACKGROUND

The evidence of record indicates the following.

At 4:58 a.m. on October 10, 1995, a Kewanee ambulance manned by two emergency medical technicians (EMTs) arrived at 720 Pleasant Street in Kewanee, Illinois, in response to a 911 call that a three-year-old child was not breathing. Upon their arrival, the EMTs were immediately directed to the upstairs of the home, where they found defendant performing cardio-pulmonary resuscitation (CPR) on a small child, later identified as Jami. According to James Heisner, one of the EMTs, Jami's skin tone was bluish and she was unresponsive, but her body was warm. Scott told Heisner that he discovered Jami's lifeless body wrapped in her blankets when he checked on Jami and her brother, Preston, who had been sleeping on a waterbed in another bedroom.

Jami was immediately transported to Kewanee Hospital. Defendant rode in the ambulance and assisted in continuing CPR on Jami while en route. They arrived at the hospital at 5:05 a.m. There the emergency room staff, headed by Dr. Renato Parungao, took over resuscitation efforts. Dr. Parungao and his staff worked on Jami for nearly an hour, but Jami never showed any signs of revival. When the hour passed without any success, resuscitation efforts were terminated and Jami was pronounced dead.

Although one police officer who responded to the English home testified that defendant appeared emotionless, several other witnesses testified otherwise. Heisner, one of the EMTs, testified that defendant was working diligently at trying to revive Jami when they arrived at the English home. When his partner took over doing CPR, Heisner said, defendant appeared shaken and frightened. Defendant asked to accompany Jami in the ambulance and seemed deeply concerned.

Karen Heying, a nurse at the hospital, testified that she was assigned to stay with defendant while the emergency room staff worked on Jami. Heying described defendant as "frantic." Heying said she and defendant paced the floor in an attempt to keep defendant calm, but when defendant was told that Jami could not be saved, defendant had a complete emotional break down.

After Jami was pronounced dead, defendant was allowed to hold Jami. She sat rocking Jami for a long while. When they took Jami from defendant, defendant collapsed on the floor and cried uncontrollably.

There was no apparent cause for Jami's death. Dr. Parungao, having noticed some bruises on Jami, asked an emergency room nurse to make a detailed record of Jami's physical condition, documenting every noticeable mark on Jami's body. In addition, the coroner ordered that an autopsy be performed.

Dr. Parungao previously had seen Jami on October 7 when Jami was brought to the emergency room by Scott, who reported that Jami hit her head on the sink when she fell off a cookie tin in the bathroom while trying to brush her teeth. Dr. Parungao sutured a cut on Jami's head. He accepted the story given him by Scott and saw nothing at that time which made him suspect that Jami was being abused.

Terri Chapman, a registered nurse at Kewanee Hospital, was working in the emergency room on the morning of October 10, 1995. She assisted Dr. Parungao in attempting to resuscitate Jami and, when their attempts failed, she called the coroner, who, in turn, reported the death to the police. Upon Dr. Parungao's order, Chapman made a detailed inspection of Jami's body. According to her notes, there were 11 marks on Jami's body, which she described as follows: three nickel- to quarter-sized bruises across her upper back; one two- to five-centimeter abrasion down the middle of her back; one quarter- to half-dollar-sized bruise just above her left elbow, one half-dollar-sized bruise on her left buttock; one half-dollar-sized bruise on her right hip; three quarter-sized bruises on her left rib area; and a bruise on her shin. Chapman also noted the healing laceration on Jami's head, where Jami had received stitches a few days earlier. Chapman later testified at defendant's trial that, based on her knowledge and experience regarding bruises and their coloration over time, she was of the opinion that Jami's bruises were of different ages. Some of the bruises were "bluish," indicating to her that the bruise was 2 to 3 days old. Some bruises were "greenish," indicating an age of 4 to 5 days and some were "brownish-yellow," indicating an age of 10 to 14 days old. Chapman said the bruises on the hip, buttocks, and shin appeared to be the oldest, while the ones on Jami's rib area and upper back appeared to be newer.

On the afternoon of October 10, 1995, the date of Jami's death, Dr. Violette Hnilica, a forensic pathologist, began an autopsy on Jami's body to determine the cause of her death. The autopsy first involved an external examination, followed by an internal examination which was conducted the next day. Dr. Hnilica testified that the autopsy took a great deal of time because she, in conjunction with police investigators and crime-scene technicians, collected and preserved evidence throughout the autopsy. Using various techniques, including ultraviolet light, Jami's body, as well as her clothing and bed linens, were examined, and attempts were made to match patterns from various items to marks found on Jami's body.

In general, Dr. Hnilica's external examination revealed "bruises of various ages over her body" and "splotchiness of color over her face with areas of pallor or paleness." A detailed visual inspection of Jami's body revealed the following: a greenish-blue bruise on the upper-right chest; a greenish-blue bruise mid-chest, near the right breast; a bluish-green bruise in the right abdomen; a greenish-brownish bruise on the left chest, near the armpit; a green contusion mid-chest, near the left breast; and a greenish bruise on the mid to upper back. Dr. Hnilica testified that the above-noted bruises were ones that appeared to be older in age-at least days in duration. She later admitted on cross-examination that none of these older injuries appeared life-threatening and all of the bruises could have been attributable to accidental childhood injuries.

With the aid of ultraviolet light, however, Dr. Hnilica found several additional bruises or marks which, in her opinion, had occurred just minutes or, at the most, hours prior to Jami's death. The recent injuries included: an area of swelling just above the right ear; a faint purple bruise on the tip of the right ear and a larger purplish bruise on the lower part of the right ear; "splotchy coloration" (mixed areas of paleness and pinkness) of the face (across the cheeks, bridge of nose, and mouth); abrasions on the sides and tip of the nose; a bruise and scraped area under her chin; a large area of bruising (extensive and not well-defined) across her chest, accompanied by "curved claw marks" which were later matched to Jami's own left-hand fingernails; bruising to the left breast area and upper abdomen; and two areas of scrapes in the left lower chest area. On Jami's back there were bruises to the skin along the vertebral process (spine) and faint bruises over the upper back area. Slightly older bluish bruises were found on the right buttocks, the left hip, and the right forearm, but on the left forearm there was a newer pinkish bruise.

Dr. Hnilica explained that areas of pallor, such as that observed on Jami's face, can occur "when something presses the blood out of the facial tissues," as in smothering. Also, asphyxia can cause petechia-ruptures of the tiny blood vessels-in the eyelids, face, oral mucosa, as well as the upper neck and in the thymus gland. Petechia were found in the conjunctiva of Jami's eye and her thymus gland, consistent with her being smothered. Further, the clawing marks found on Jami's chest were also indicative of smothering. Dr. Hnilica testified that a smothering victim often will claw at the thing obstructing their ability to breath and, in doing so, injure themselves in this manner.

When conducting the internal examination of Jami, Dr. Hnilica peeled back Jami's scalp. In doing so, Dr. Hnilica was able to determine that the swelling, which had been observed over Jami's right ear, was due to torn blood vessels, which allowed blood to pool in the tissues. This type of injury, Dr. Hnilica said, was likely caused by a massive, heavy blow to the head. In addition to this one massive injury, the doctor was able to discern 13 distinct areas of hemorrhage, each representing an injury to the head. It was noted, however, that estimating the age of these bruises is not an exact science and that several, perhaps as many as eight of these bruises, were not recent injuries.

Dr. Hnilica concluded that the injury to Jami's head, evidenced by the large area of hemorrhage, caused the brain to be "shaken up." This caused Jami's brain to swell to the size of an adult brain. Dr. Hnilica identified several photographs which had been taken during the autopsy, depicting the injury to the brain, as well as the areas of bruising, as described above.

Dr. Hnilica opined that the swelling of the brain, which was likely caused by a heavy blow to the head, was the most significant injury suffered by Jami. However, there was also evidence of injury to the abdomen. The injury here was consistent with a massive, rapid or heavy force being applied to the abdomen-as with being kicked, "stomped," or "kneed" in the abdomen area.

Based on all of the evidence from the autopsy, Dr. Hnilica concluded that Jami's death had been caused by blunt force trauma to the head (brain edema) and asphyxia. In her opinion, either cause, standing alone, could have resulted in death. However, since there was evidence of both, it was impossible to say "the relative proportion that each contributed" to causing Jami's death.

On the evening of October 11, 1995, defendant and Scott met with police at the Kewanee police station, where they were questioned, individually, about what had transpired prior to Jami's death. *fn2 Defendant, who was 25 years old at the time, told police that she and her children, Preston, age five, Jami, age three, and David, age two, began staying with Scott English, who is David's father, after she resumed her relationship with Scott sometime in August 1995. In late September 1995, they moved in with Scott at the home of Scott's parents, Hilda and Raymond English, at 720 Pleasant Street in Kewanee. Pam, the girlfriend of Scott's brother (who was in jail), and Pam's young son also lived at the home. Defendant told police that she and Scott slept in one of the upstairs bedrooms. Their son, David, had a bed in the same room. Preston and Jami slept together in another upstairs bedroom.

When asked if she was aware of any bruises on Jami, defendant stated that she gave Jami a bath on October 9, 1995, sometime between 11:30 a.m. and 1:30 p.m. At that time, she noticed only a few small bruises. Some of the bruises could have been attributed to the fact that, on October 7, 1995, Jami had fallen off a round tin in the bathroom and hit her head. Jami was taken to the hospital and received stitches. This was the only "owie" on Jami that defendant knew about. Defendant recalled, however, that two to five days before Jami's death, Jami hit her head on the bannister of the stairs as she was going upstairs. Defendant also remembered another occasion when Jami's head got bumped into the bannister as Scott was carrying Jami upstairs. Other than those instances, defendant was unaware of any injuries to Jami. Defendant denied ever striking her children, except for a small swat on the behind, and she assured police that, to her knowledge, no one in the English home had ever mistreated them.

Defendant told police that, on the evening of October 9, she and the children ate dinner at about 6:30 p.m. and, when Pam and her son came home at about 7 p.m., the children had some ice cream. The children played together downstairs until about 9:15 p.m., when defendant took her children upstairs to her bedroom to watch some television. David fell asleep in his own bed in her room. Preston and Jami fell asleep in her bed. Defendant said she moved Jami and Preston to their own bed around 11:30 p.m. and then went downstairs to do some laundry. When she checked on Jami and Preston at about 12:15 a.m., they seemed fine.

Defendant noted that Scott arrived home at about 12:40 a.m. and, sometime after his arrival, she noticed that the kids "were a little restless." She went to check on them and found Scott at the foot of their bed, telling them to go back to sleep. Defendant said she immediately left the bedroom and stood outside the door because she was afraid that the kids would wake up if they saw her. Scott then went downstairs to get something to eat and came back upstairs to eat with her in the bedroom. She and Scott talked while Scott ate. Then they each took showers.

Defendant explained that, to get to the bathroom, it was necessary to walk through the bedroom where Jami and Preston slept. Defendant recalled that, when Scott returned after taking his shower, he told defendant that he checked on the children and they were fine.

Defendant said that after she and Scott showered, they watched some television until about 3 or 3:30 a.m. and then went to bed. Before going to sleep, Scott went to the bathroom and, on his way, checked on the children once again. When he returned, he told defendant that Jami had been wrapped in her covers and he had fixed them. Sometime later that morning, defendant and Scott were awakened by David crying. David had a fever, so Scott gave David some Tylenol. When he did, David spit up on Scott. Scott went to wash up and, again, passed through the children's room. Shortly thereafter, Scott said something about hearing a noise.

The next thing defendant remembered was Scott, standing in the bedroom doorway, yelling at her, waking her up, and telling her that Jami was not breathing. Scott told her that he went into the bedroom, found Jami wrapped in her blankets and, when he unwrapped her, found her lifeless and not breathing. Defendant said that she went to Jami's room, picked her up and brought her into her own bedroom, where she started doing CPR. She screamed at Scott to call 911. Defendant said that Scott later told her that he had tried performing CPR on Jami, too, but she did not know for how long.

At this point in the interview, Lieutenant Rod Huber, one of defendant's interviewers, advised defendant of her Miranda rights and informed her that a preliminary report from the autopsy revealed that Jami had not died of natural causes, but that she had died from swelling of the brain caused by blunt force trauma and asphyxia-cutting off her air supply by suffocation. Lieutenant Huber described defendant's response to this information as one of shock and astonishment. He said she seemed to have difficulty grasping the meaning of what he was telling her. Defendant did not understand how Jami could have been hurt because, she said, to her knowledge no one in the English household had ever hit or mistreated her children. Defendant also maintained that she had done nothing to harm Jami in any way.

The interview was then interrupted by Dee Shannahan, a DCFS investigator, who asked to speak with Lieutenant Huber. Outside the interview room, Shannahan informed Huber that Scott had made admissions regarding hitting Jami. Huber returned to the interview room and told defendant that Scott admitted striking Jami. Lieutenant Huber said that defendant seemed to have difficulty believing that Scott had done anything to Jami because, defendant said, she had never known Scott to be abusive toward her children in the past. Defendant maintained that she was completely unaware that Scott had done anything to Jami. In fact, after learning of Scott's complicity for her daughter's death, defendant noted that it now made sense that, since Jami's death, Scott had continually sought reassurance from her that she loved him and had even asked her to marry him. Defendant also said she now understood why, before coming to the police station, Scott told her that he was scared because "they always blame the one who finds the dead child and I'm just scared I'll get blamed."

As indicated above, while defendant was being interviewed in one room at the police station on the evening of October 11, 1995, Scott was being questioned in another room. In the course of this questioning, he admitted striking Jami on the head on the morning of October 10, 1995. Scott made a voluntary statement, which was tape recorded. His taped statement was played for the jury at defendant's trial. Jurors were also given copies of the transcript to follow along with as the tape was played.

In this statement, Scott corroborated much of what defendant told police. He said he had gone to work at 4 p.m. on October 9, 1995, and worked until 12:30 a.m. on October 10, 1995, arriving home about 12:50 in the morning. When he got home, he checked on Jami and Preston and found that Jami was "bundled up" in her blanket. He said he went to his own bedroom and told defendant that Jami was bundled up in her blankets. Scott and defendant then went back into Jami and Preston's bedroom to fix the blankets. The children heard defendant's voice and began to wake up and cry for their mom. Defendant hurried out of the room so the children would go back to sleep. Scott then "unbundled" Jami and "set them [the blankets] the right way."

Scott said that, after fixing the blankets, he got something to eat, talked with defendant, and then showered. Scott then went downstairs to get David his bottle. On the way back, he checked on the children again and they were fine. He watched television until about 3 a.m. and, before going to sleep, went to the bathroom. At that time he checked on the children once again. Scott said that when he turned the light on briefly, Preston opened his eyes, but Scott told him to go back to sleep. Scott said Jami was wriggling under her blankets and she was all bundled up again. Scott said, "Then I yelled at her and I hit her twice in the back of the neck or the head, one of them with the palm of my hand." Scott described the first strike as a "hammering motion," but said the second strike was softer. He said Jami cried, but not loudly. He said he "didn't mean anything. I just wanted to let her know that she shouldn't be covering up like that."

Scott said he went back to bed and was awakened around 4:30 a.m. by David crying. David had a fever, so Scott got up to get him some medicine. When he gave David the medicine, David spit it up and Scott spilled medicine all over his hands and the sheets. Defendant took David into their bed to settle him down, while Scott went to the bathroom to wash up. When Scott walked through the children's room to the bathroom, Preston woke up briefly, but then lay back down. Jami, however, was still all bundled up in her blankets. Scott said,

"Then I pulled the blankets up and she spun and there was no movement. She was lifeless and I proceeded to do CPR after that. I leaned down to listen if she was breathing ...


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