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People v. Payne

December 20, 2002


Appeal from the Circuit Court of Cook County Honorable John A. Wasilewski, Judge Presiding.

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


Following a bench trial, defendant Denise Payne was convicted of first degree murder. The State sought the death penalty and defendant waived a jury for both phases of the capital sentencing hearing. After a death penalty hearing before the trial court, defendant was sentenced to an extended term of 80 years in prison. Defendant appealed and her counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). Defendant responded, contending that the State did not prove she had the intent to kill beyond a reasonable doubt. Rejecting defendant's contention, this court granted defense counsel's motion to withdraw and affirmed the trial court's judgment. People v. Payne, No. 1-97-4467, slip order at 2-3 (August 23, 1999) (unpublished order under Supreme Court Rule 23) ("the evidence was sufficient to show that defendant possessed the requisite intent and committed the offense of first degree murder").

Defendant subsequently filed a pro se post-conviction petition, which the circuit court summarily dismissed as frivolous and patently without merit. In this appeal, defendant contends (1) that her pro se petition sufficiently raised the gist of a meritorious claim of ineffective assistance of trial counsel; (2) that appellate counsel was ineffective; (3) that her extended-term sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and (4) that Public Act 83-942, effective November 23, 1983, violates the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8(d)). We affirm.


Defendant's conviction arose from the beating death of her five-year-old stepson, J.P., on February 21, 1995, in Harvey, Illinois. Defendant filed a motion to suppress statements, arguing that her confession was involuntarily obtained as a result of psychological coercion. Following a hearing, at which the interrogating officer and defendant's sister testified, the trial court denied the motion to suppress.

At trial, Harvey police detective James McGee testified that in the late evening hours of February 21, 1995, he was dispatched to an area hospital in connection with a reported incident of child abuse. At the emergency room, he observed J.P., who was unconscious with bruises, scars, marks, lacerations, and cuts "all about" his body. Detective McGee then went to J.P.'s home, where he spoke with defendant, who appeared calm and unconcerned. Defendant told Detective McGee that as she and J.P. were walking down the stairs, she slipped on the third stair from the bottom and landed on top of J.P. After further conversation, defendant told Detective McGee that she punished J.P. by striking him with a stick, which Detective McGee recovered from under the kitchen table. Defendant agreed to accompany Detective McGee to the hospital. There, Detective McGee spoke with medical personnel while defendant stayed in the emergency room waiting area. Defendant subsequently accompanied Detective McGee to the police department. The next afternoon, Detective McGee searched defendant's home with her husband's consent and recovered a leather belt.

J.P.'s sister, 11-year-old D.P., testified that on February 21, 1995, she was nine years old. She explained that at that time, she lived with her father, her stepmother, her eight-year-old sister, her six-year-old brother, and J.P., who was five years old. D.P. testified that on the day in question she heard defendant ask J.P. whether he had any homework. J.P. responded that he did not. Defendant and J.P. went upstairs to the boys' room, where defendant again asked J.P. about his homework. When J.P. said he had none, defendant accused him of lying. Defendant then asked the children who broke the closet door in the boys' room, and D.P. told her that her niece had done it. Defendant telephoned her sister and then called J.P. downstairs. D.P. testified that she heard J.P. walk downstairs and then heard him "getting a whooping" with the belt. D.P. heard smacking noises and heard J.P. screaming and hollering, "Please, God." When asked whether J.P.'s screaming was any different that day from any other time, she replied that he was louder than ever before.

On cross-examination, D.P. stated that other than the day in question, every time she "got a whooping," defendant would say to her, "I'm going to kill you." D.P. also stated that defendant "used to say that all the time." However, D.P. acknowledged that she did not tell the police about these statements by defendant.

Paramedic Geral Kurylo testified that around 11:30 p.m. on the date in question, she and her partner were dispatched to defendant's home. When Kurylo entered the home, defendant was talking on the telephone, crying, and holding J.P. in her arms. She then set J.P. down on the kitchen table, promptly stopped crying, and lit a cigarette. Kurylo testified that J.P. was limp and chalky white, which indicated he had been without oxygen for some length of time, and had chunky vomit around his face. The paramedics asked defendant what happened, and she replied that J.P. was sitting on the sofa coughing, and then all of a sudden he just quit coughing and stopped breathing. After determining that J.P. was not breathing and had no pulse, Kurylo picked J.P. up and told defendant they were going to the hospital. When Kurylo asked defendant whether she was coming, defendant said she could not.

In the ambulance on the way to the hospital, Kurylo noticed that J.P. had black marks on his neck about the width of a finger and other marks all over his body. J.P.'s left arm was swollen and discolored from the top of his shoulder to his elbow. At the hospital, Kurylo noticed that J.P. had "many, many wounds" across his back and buttocks in different stages of healing, injuries to the bottoms of his feet, and what appeared to be bite marks on his side and the back of his thighs.

On cross-examination, Kurylo acknowledged that in her narrative she wrote, "Assorted wounds over child's body, arms and fingers," but did not specify the nature or location of the wounds and did not mark J.P.'s injuries on the illustration of the human figure. She also did not note that J.P. was chalky white.

The parties stipulated that if called to testify, Dr. Allswede would have testified that J.P. arrived at the Ingalls Hospital emergency room in full cardiorespiratory arrest, was comatose, and did not respond to verbal or painful stimulation. After examining J.P., Dr. Allswede found whip marks of various ages on his thighs, arms, and front and back torso; bruises and abrasion to his chest, back, and left arm; blistering on his fingertips; a laceration to the right lower lip; fresh bruises and abrasions to both flanks; bruises to the left neck; and an abrasion and a hematoma to the left eye socket. Based on his medical training, education, and experience, Dr. Allswede would have testified that J.P.'s injuries were the result of child abuse.

The parties stipulated that on February 22, 1995, J.P. was transferred via helicopter to Wyler's Children's Hospital and arrived in a comatose state on an intubator. Bruises, lacerations, hematomas, abrasions, and cord marks were noted by doctors at Wyler's Children's Hospital, and a CT scan revealed severe brain injury with massive edema. The parties further stipulated that, if called to testify, Dr. Chaney would have testified that based on her medical training, education, and experience, it was her opinion that J.P.'s injuries were the result of child abuse. Finally, the parties stipulated that J.P. was pronounced dead at 7:33 a.m.

Assistant State's Attorney Frank Cece testified that in connection with the investigation of J.P.'s death, he spoke with Detective McGee, Dr. Allswede, the medical examiner's office, and J.P.'s siblings on February 22, 1995. Cece then spoke with defendant in an interview room at the police station. Cece introduced himself, asked whether defendant was under the influence of alcohol or drugs, and advised her of her constitutional rights. Cece and defendant then talked about what happened with J.P., and Cece reduced defendant's statement to writing.

Defendant related that she was the parent who would discipline the children, mainly for lying, and that although she usually used a belt on them, for the last couple of weeks she had been using a stick that was a piece of wall trim. Defendant related that after dinner on February 21, 1995, she went upstairs to the boys' room and found it "all in a wreck." Defendant found J.P.'s homework under his pillow. Earlier, J.P. had told defendant he did not have any homework. When defendant asked the children who broke the closet door, they first blamed each other, and then blamed their cousin. Defendant telephoned her sister and learned that her children denied breaking the door. Defendant stated, "That's when I went and got the stick."

Defendant related in her statement that she asked J.P. why his homework was not done and why he lied about not having any homework. When J.P. said he did not know or that he forgot, defendant told him "to get his ass into the dining room," where they started on his homework. Defendant told Cece that she would point to letters and ask J.P. what they were, but J.P. kept saying that he had forgotten them. Defendant related:

"When [J.P.] told me that he forgot, that's when I hit him with the stick on his shoulder and on his back real hard.

[J.P.] had taken off his shirt and pants before I started hitting him, because I told him to. That way [J.P.] would feel the pain when I hit him. After I started hitting [J.P.], he told me the right letters. [J.P.] would keep forgetting the pictures and the letters, so every time he forgot, I would keep hitting [J.P.] all over his body. I would hit him with the stick, and he kept jumping around and moving, but he never ran away, because he knew better.

I hit [J.P.] all over his back, shoulders, arms, butt, legs, face and head with the stick. [J.P.] kept crying saying, `Okay, okay, mama, I won't do it anymore,' but I kept hitting him because he needed to be punished. When I got through with [J.P.] his whole body was red. His lip was bleeding."

Defendant told Cece that by 9:30 p.m., all the kids were in bed. Some time later, defendant noticed that J.P. was breathing funny. She took J.P. downstairs and got some water, and when she returned, J.P. had stopped breathing. Defendant tried to perform cardio pulmonary resuscitation (CPR) and then called for an ambulance. Defendant noted her husband knew she disciplined the children with the belt and the stick and stated, "He even told me that when I used to hit the kids with an extension cord, it was excessive." Defendant concluded by saying, "I want to say that I know I went too far in whooping [J.P.]."

Dr. Simms, the deputy medical examiner who performed J.P.'s autopsy, testified that he observed a total of nine injuries in the area of J.P.'s head and neck, 15 marks on his back and buttocks, 7 injuries on his abdomen, and 46 marks on his extremities. These external injuries ranged in age from a few weeks to a few hours old. Dr. Simms indicated that some of the marks were consistent with being made by fingernails, while others were consistent with being made by a belt or wooden stick, as defendant admitted to using.

Dr. Simms identified 29 photographs as accurately depicting J.P.'s injuries. Dr. Simms noted that J.P.'s back and left upper arm were swollen. He described the complex loop scar on the back of J.P.'s left thigh as the size and thickness of a coat hanger. He stated that the multiple linear and curvilinear scratches on the back of J.P.'s left upper arm were consistent with fingernail scratches or injuries caused by someone holding his arm, and that the injuries to J.P.'s fingertips could be consistent either with J.P. striking out and fighting with his hands, or with blunt trauma inflicted onto the fingertips. Dr. Simms explained that the linear wounds were inflicted with some kind of rod-shaped instrument, that he believed some of the curvilinear wounds were inflicted by fingernails, and that he could not tell what inflicted the other curvilinear wounds. He stated that the loop-shaped wounds were caused by a belt or some other type of pliable instrument, and that the angled scars would have been caused by a fairly hard object such as the edge of a piece of wood or a belt buckle. When shown the stick and belt Detective McGee recovered from defendant's home, Dr. Simms agreed that the linear and angled wounds on J.P.'s body were consistent with being struck with those objects. Dr. Simms testified that many of J.P.'s injuries could be characterized as pattern injuries, which indicated that they were inflicted intentionally, as opposed to accidentally.

Dr. Simms further testified that he conducted an internal examination of J.P. He observed a large area of contusion on the back of the head, indicating a fresh hemorrhage. J.P.'s brain was swollen to the point that it had pushed through the opening at the bottom of the skull and put pressure on the brain stem where the breathing and heart centers are located. Dr. Simms stated that when the brain herniates through the opening at the base of the skull and puts pressure on the brain stem, it usually causes death. Dr. Simms noted multiple hemorrhages on J.P.'s tongue and a hemorrhage in the neck near the thyroid gland, which indicated that pressure was applied or trauma was inflicted in the area of the windpipe. He stated that taken together with the external injuries to J.P.'s neck, the hemorrhages on J.P.'s tongue and neck indicated that he had been strangled.

Dr. Simms observed a large amount of hemorrhage in J.P.'s left chest, fourth rib on the left side, back, buttocks, abdomen, and muscles surrounding the kidney. Dr. Simms found a "tremendous amount" of hemorrhage in the upper back and the upper arms, which accounted for the external swelling of J.P.'s back and left upper arm. Dr. Simms stated that a broad area of hemorrhage is consistent with repetitive beating with a significant amount of force. He also stated that taking into account the area of hemorrhage all over J.P.'s back, the hemorrhage on the back of his head, and the bruises on the upper parts of both his arms, he believed J.P. had been repetitively battered against a wall or a floor. J.P.'s brain swelling may have been caused by lack of oxygen due to strangulation, or by the trauma of his head repeatedly accelerating and then suddenly stopping as it was struck against a ...

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