The opinion of the court was delivered by: Chief Justice McMORROW
Docket No. 90911-Agenda 18-November 2001.
Defendant Erin Thurow was charged, under sections 9-3(a) and (f) of the Criminal Code of 1961 (720 ILCS 5/9-3(a), (f) (West 1998)), with involuntary manslaughter of a family or household member. The jury was instructed on the elements of simple involuntary manslaughter (720 ILCS 5/9-3(a) (West 1998)), and defendant was found guilty by the circuit court of Will County. At sentencing, the judge determined that defendant was eligible for an enhanced sentence because the victim, Michael Mostowski, was a member of defendant's household. 720 ILCS 5/9-3(f) (West 1998). In the alternative, the judge concluded that defendant was eligible for an extended-term sentence because of the tender age of the victim. 730 ILCS 5/5-5-3.2(b)(4)(i) (West 1998). The court sentenced defendant to eight years in prison. On appeal, the appellate court vacated the sentence, concluding that it violated the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The appellate court remanded for a new sentencing hearing, directing that the sentence not exceed the five-year maximum for simple involuntary manslaughter. 318 Ill. App. 3d 128. We allowed the State's petition for leave to appeal. 177 Ill. 2d R. 315. For the reasons set forth below, we affirm in part and reverse in part the judgment of the appellate court.
The following facts, which are essentially undisputed, are taken from the testimony at trial and other materials of record. Defendant Erin Thurow first met Michelle Mostowski in November 1997 when Mostowski moved into a homeless shelter in Elgin where defendant Thurow and her three-year-old daughter, Tianna, were staying. During the next several weeks, the two women became friends. On December 14, defendant left the shelter and moved into an apartment in Joliet, where her daughter joined her a few days later. At defendant's suggestion, Mostowski moved in with defendant and her daughter on January 2, 1998. For the next eight months, defendant was the sole source of financial support for the household.
Mostowski, who had been pregnant when she entered the shelter in Elgin, gave birth to a son, Michael, on April 21, 1998. Defendant was in the delivery room with Mostowski when the child was born. Up until this time Mostowski, who was not employed, had taken care of defendant's child while defendant was working. Subsequently, Mostowski watched both of the children.
In September 1998, Mostowski returned to work. She and defendant were on different shifts, but for a time there was an overlap of about four hours a day when they were both at work and needed to hire a baby-sitter for their children. In January 1999, defendant and Mostowski adjusted their work schedules so they were working opposite shifts and no longer needed to hire a baby-sitter. Mostowski worked from 7 a.m. to 3 p.m. at a local restaurant, and defendant worked from 4 p.m. to midnight at a different restaurant. Each watched the children while the other was at work.
Prior to February 11, 1999, the date of the victim's death, defendant had indicated to Mostowski that she thought Mostowski was too indulgent with Michael and was spoiling him. The two women occasionally argued about this, with defendant telling Mostowski that she had difficulty consoling Michael when Mostowski went to work, and Michael's constant crying frustrated her. Beginning in late 1998, unbeknownst to Mostowski, defendant had begun putting her hand over Michael's mouth to calm him down. Defendant testified at trial that she did this a total of about 30 to 40 times, and that it seemed to work and did not seem to hurt him.
On the morning of February 11, defendant awoke at about 6 a.m. after falling asleep on the couch the night before. Mostowski left for work that morning at about 8 a.m. Before leaving, she placed Michael in his walker and left him next to the couch. Defendant then went back to sleep on the couch. At about 10 a.m. she awoke when she heard Michael crying. She tried to calm him but was unsuccessful. At about 10:30 a.m. she took him to his crib for a nap. He was still crying, so she put her hand over his mouth to quiet him down. Defendant testified that she held her hand there until he was quiet, about 15 seconds. He took a breath of air, and his legs and arms moved. Defendant then turned him over on his stomach, pulled his blanket up, and left the bedroom.
Defendant's boyfriend arrived at about 1:30 p.m., and defendant borrowed his car and went shopping. According to defendant, when she returned about 45 minutes later, her boyfriend said he had checked on Michael while she was out, and the child was still sleeping. Defendant's boyfriend left at about 2:45 p.m., and at about 3 p.m. defendant went to check on Michael.
The first thing she noticed was that he did not move when she came through the doorway. She went to the crib and discovered that he was cold and not breathing. Defendant telephoned Mostowski at work and told her that there was an emergency and she should come home. Defendant then telephoned her employer and stated that the baby was dead. Defendant's manager told her to call 911. She did, and the 911 operator instructed her on CPR, which she performed. Police and emergency personnel arrived, as did Mostowski. The child was taken to the hospital, and Mostowski went there as well. The police left, and defendant and her daughter remained in the apartment.
About two hours later, Joliet police detectives Jeff Allbert and Richard Raasch arrived at the apartment and questioned defendant. She told them what happened, but omitted mentioning that she had held her hand over Michael's mouth. Defendant and her daughter were then taken to the police station, where police first questioned defendant's daughter and then spoke to defendant. They told defendant that there were inconsistencies between her story and her daughter's. Defendant then "broke down" and again told police what had happened, this time including the fact that she had put her hand over Michael's mouth. She was then arrested.
Forensic pathologist Brian Mitchell, who performed an autopsy on Michael the next day, testified that, to a reasonable degree of medical certainty, it was his opinion that Michael died of suffocation. Mitchell's examination of Michael revealed a pinpoint hemorrhage in one eye, bruising around his mouth, and swelling of the brain, all of which were consistent with death by asphyxiation. Mitchell added that he found evidence in Michael's lungs indicative of prior episodes of suffocation.
Defendant was subsequently indicted for involuntary manslaughter with the enhancement that the victim was a family or household member, which is a Class 2 felony. The indictment, as presented to the jury, read:
"[S]aid 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 involuntary manslaughter:
"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 offered no instruction regarding the proposition that the victim was a family or household member of defendant. The defense did not object to the proposed instruction.
Defendant was convicted on September 2, 1999. Defense counsel moved for a new trial, and the motion was denied.
The State argued at the sentencing hearing that defendant should be sentenced to at least 10 years in prison. Defense counsel argued for probation. He noted in addition that the jury was not instructed on the element of Michael's being a family or household member of defendant. Defense counsel thus contended that if defendant were given a prison sentence, it could not exceed the two-to-five-year range for simple involuntary manslaughter, which is a Class 3 felony. The judge rejected defense counsel's arguments, finding that defendant "was a household member of Michael Mostowski" and the 3-to-14-year enhanced sentencing range for involuntary manslaughter therefore applied. According to the statute, "household members" include "persons who share or formerly shared a common dwelling." 725 ILCS 5/112A-3(3) (West 1998). The judge added that even if Michael were not a member of defendant's household, defendant was eligible for an extended-term sentence because of the tender age of the victim. Accordingly, defendant was sentenced to eight years in prison, a term that is within both the 3-to-14-year enhanced sentencing range (720 ILCS 5/9-3(f) (West 1998)) and the 5-to-10-year range for an extended-term sentence (730 ILCS 5/5-8-2(a)(5) (West 1998)). Defendant's motion to reconsider sentence was denied.
On appeal (318 Ill. App. 3d 128), the appellate court concluded that defendant's sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000), which held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The appellate court noted that the jury in the instant case "was instructed to make a finding on only the basic elements of involuntary manslaughter" and "did not make a finding beyond a reasonable doubt that the victim was a family or household member." 318 Ill. App. 3d at 134. According to the appellate court, because there was no jury finding as to this enhancement element, it was improper to sentence defendant "under the enhancement provision of the involuntary manslaughter statute." 318 Ill. App. 3d at 134.
The appellate court also rejected the argument that defendant was eligible for an extended-term sentence based on the tender age of the victim. The court noted that the question of the victim's age was not before the jury, and it would therefore be a violation of Apprendi to impose an extended-term sentence based on this factor. The court concluded that the extended-term provision at issue (730 ILCS 5/5-5-3.2(b)(4)(i) (West 1998)) is "unconstitutional under Apprendi to the extent that it allows an increase in ...