Appeal from the Circuit Court of Cook County Honorable Daniel Kelley, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
Defendant Mark Kennedy entered an open plea of guilty to first degree murder for the beating death of the victim, D.H., a two-year-old boy. The State sought imposition of the death penalty based on the fact that the victim was under 12 years of age and the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Defendant waived a jury for the penalty phase. The State introduced the testimony of Cleo Childs, the victim's father, and Dr. Kalelkar, the medical examiner, in aggravation. Defendant's mitigation included evidence that he had suffered from psychological problems from childhood. Defendant was sentenced to natural life in prison. Defendant appeals contending the evidence fails to support the trial judge's finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and that, therefore, he should be resentenced or, in the alternative, the trial judge failed to consider mitigating factors and that, therefore, his sentence should be reduced.
FACTUAL BASIS FOR PLEA OF GUILTY
As the factual basis for defendant's plea of guilty the State presented defendant's court- reported confession. Defendant, who was 26 years old, stated that he lived with Tina Huley and Tina's two-year-old son, D.H., in March 1997. Cleo Childs was the father of the two-year-old. Defendant indicated he would abuse Tina's son because he was jealous of the attention Tina gave her son. Defendant would bite different parts of the boy's body and burn him with a cigarette.
On March 7, 1997, defendant was baby-sitting for Tina's two-year-old son. Tina was at the hospital. Defendant was supposed to get the baby ready for his biological father to pick him up. Defendant went into the room where the baby was sleeping and bit him hard on the foot, noticing "the taste of blood in [his] mouth." The baby woke up and was crying.
Defendant began changing the baby's diaper and bit the baby again, this time on the buttocks. Defendant stated the baby "cried even more." Defendant took the baby, who was "still crying a lot," into the bathroom and sat the baby in the tub. Defendant hit the baby on the back of his head. The defendant stated that the baby's head "lurched forward." Defendant hit the baby "very hard in his face" and watched as the back of the baby's head "hit the back of the tub where it's at a 45 degree angle." Defendant heard a loud thud and stated that the baby was not crying as much as he had been before.
Defendant got in the tub and "picked the boy up from behind his rib cage [and] dropped him on the ledge of the tub to where his stomach hit the ledge." Defendant watched the baby fall forward and hit his head on the tile bathroom floor. The defendant indicated that when the baby hit the floor, he stopped crying. Defendant picked the baby up off the floor and stated the baby's stomach protruded and the baby appeared to be "in and out of consciousness as if he was lifeless." The baby was unable to walk. Defendant described the baby's body to be "just like a bunch of living tissue that can't move."
Defendant explained that he felt "very, very jealous" of the baby and the attention Tina gave the baby. By injuring the baby, defendant indicated that, "As in the past when I had done these stupid things to him, in its own time Tina did show some attention after all these things that I - that I did to this child." Cleo Childs, the baby's biological father, arrived, and after giving the baby to Childs, the defendant went to the bedroom and fell asleep.
Dr. Kalelkar, the medical examiner, would have testified that an autopsy on the baby revealed various internal injuries, including a ruptured intestine and 40 sites showing evidence of old and new injuries, including abrasions, cuts, bite marks, and burns. The two-year-old baby died of peritonitis due to the rupture of his small intestine and abdomen. Manner of death was homicide. The trial court found a sufficient factual basis for the defendant's plea of guilty and entered a finding of guilty to first degree murder.
The State sought the death penalty and defendant waived a jury for both phases of the capital sentencing hearing. Regarding defendant's eligibility, the State introduced defendant's birth certificate, indicating defendant was over 18 years of age at the time of the murder. The State introduced the victim's birth certificate, indicating the baby was two years of age at the time he was murdered. Both the State and defense stipulated that the testimony stated for the record in support of the factual basis for the guilty plea would be reintroduced for the sentencing hearing. The trial court found defendant to be statutorily eligible for imposition of the death penalty because the victim, D.H., was under the age of 12 and the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. 720 ILCS 5/ 9-1(b)(7) (West 1998). The trial court proceeded to the aggravation and mitigation phase of the death penalty hearing. The State introduced the testimony of Cleo Childs, the victim's biological father, and the live testimony of the medical examiner in aggravation.
Childs testified he picked up the baby from defendant at Tina's apartment on March 7, 1997. The baby was vomiting and Childs noticed a mark under the baby's chin, but did not notice any other sign of injury. The baby seemed to be a little sick during the night. The next morning, Childs took the baby to a clinic, then to a hospital, where he was told the baby had died. His son's death hurt him deeply because he can no longer see his son or watch him grow.
Dr. Kalelkar testified that the external examination revealed 16 recent injuries and 20 older injuries. The old injuries included small scars on the baby's head and chest; scars consistent with healing cigarette burns on his abdomen, chest, back and hand; and bite marks on his arm and thigh. The recent injuries included scratches on the front and back of his body, bite ...