Appeal from the Circuit Court of Cook County No. 96 CR 4719 Honorable John J. Moran, Judge Presiding.
The opinion of the court was delivered by: Justice Cahill
Defendants Sharon Burton and Leroy Locke were convicted of first-degree murder for the death of Burton's three-year-old daughter, Dominique Spencer. Defendants were tried jointly by separate juries. They were sentenced to natural life in prison. This court vacated its initial decision in this consolidated appeal, entered on July 23, 2002 (People v. Burton, Nos. 1-99-3503 and 1-99-3796 cons. (2002) (unpublished order under Supreme Court Rule 23)), in accordance with a supervisory order issued by the Illinois Supreme Court on December 5, 2002 (People v. Burton, 779 N.E.2d 898 (2002)). The supervisory order directed us to re-examine an issue in the case of Sharon Burton, No. 1-99-3503, in light of People v. Pollock, 202 Ill. 2d 189, 780 N.E.2d 669 (2002). That issue was a nonpattern jury instruction based on language in People v. Stanciel, 153 Ill. 2d 218, 606 N.E.2d 1201 (1992). We have reexamined the jury instruction in light of Pollock and now reverse the conviction of Sharon Burton and remand her case for a new trial. This opinion replaces our earlier order and represents our resolution of all issues in both appeals.
Defendants argue on appeal that: (1) they were denied a fair trial because of the prosecutors' prejudicial remarks during opening and closing statements; (2) their attorneys provided ineffective assistance by failing to submit a jury instruction defining recklessness and failing to object to the incorrect version of the verdict instruction; and (3) the trial court erred in imposing a natural life sentence. Burton also argues that the nonpattern jury instruction on accountability and parental responsibility was an inaccurate statement of the law.
We reject the defendants' first and second arguments and affirm the conviction of defendant Locke. We agree that the natural life sentences were imposed under an act declared unconstitutional by the supreme court in People v. Wooters, 188 Ill. 2d 500, 722 N.E.2d 1102 (1999), and that Locke's case must be remanded for resentencing. Under our supreme court's recent decision in Pollock, 202 Ill. 2d 189, 780 N.E.2d 669, we reverse defendant Burton's conviction and sentence and remand for a new trial. We must also address Burton's arguments to determine whether remand would subject her to double jeopardy. See People v. Jones, 175 Ill. 2d 126, 134, 676 N.E.2d 646 (1997); People v. McDonald, 125 Ill. 2d 182, 201, 530 N.E.2d 1351 (1988).
In January 1996, Locke and Burton lived together with three of Burton's children, six-year-old Thaddeus, three-year-old Dominique and baby Tiffany. On January 22, 1996, Thaddeus was at his grandmother's house. Paramedic Dennis Bixter testified that he was called to Burton and Locke's apartment on the morning of January 22. Locke was holding Dominique. Burton told Bixter that the child had had a seizure, vomited and lost consciousness. Bixter examined Dominique. She was not breathing and had no pulse. He was told she had taken a bath, but although she appeared dry, her palms and soles were wrinkled. Bixter noted extensive old and new injuries on Dominique. He estimated she had been dead for two hours but gave her three rounds of cardiac drugs in an attempt to resuscitate her. Bixter told police, in Burton's presence, that he suspected child abuse. Burton became angry and confrontational with Bixter. Dominique was pronounced dead at South Shore Hospital at 11:12 a.m.
Chicago police officer Joseph Ramirez testified that he arrived at the apartment while the paramedics were trying to resuscitate Dominique. One of the paramedics told him it was possible that Dominique had been abused. Burton yelled obscenities at the paramedic, so Ramirez asked Burton and Locke to sit in the squad car. Burton told Ramirez she did not know what the paramedic was talking about. She said Dominique had taken a bath, sat on the toilet and then became unconscious. Locke had attempted cardiopulmonary resuscitation (CPR).
Ramirez drove defendants to South Shore Hospital after dropping Tiffany at Burton's mother's house. At the hospital, Ramirez saw a bruise on Dominique's forehead and asked Burton what caused it. Burton said that Dominique had fallen at her grandmother's house over the weekend. When the doctor undressed Dominique, Ramirez saw a "bunch of burns and bruises all over the body, front and back." Ramirez testified he then called detectives about the case.
Mary Maloney, a hospital social worker, testified that she saw multiple scars, healing abrasions, bruises and ruptured blisters all over Dominique's body. Maloney than spoke to Burton and Locke. Burton said Dominique was in the bathtub but got out to sit on the toilet. She then vomited and her eyes were spinning in her head. Maloney saw no evidence of vomit on Dominique. Burton said she thought Dominique was "not quite right" and was slow for a three-year-old. Burton said she had eight children and that Dominique had been returned to her by the Department of Children and Family Services (DCFS) in May 1995. When Dominique returned from foster care, she had those scars on her body.
Dr. Joseph Cogan, the medical examiner, testified that he performed an autopsy on Dominique on January 23, 1996. Dominique's injuries included bruises, abrasions and contusions on her face and head, all received within 24 hours of death. Injuries received minutes to hours before death included superficial abrasions behind both ears, a bruise on the chin, parallel abrasions on the back of the neck possibly made by fingernails, a circular burn between her fingers, and a recently torn frenulum, the skin between the upper lip and nose. Cogan testified that a torn frenulum can be produced when a hand is put over a person's mouth and the person then tries to open the mouth to breathe. Cogan noted older injuries, including abrasions around the nipples, contusions on the back of the thighs, burns on the legs and bruises on the arms. After his internal examination, Cogan concluded that the cause of death was drowning with multiple injuries. He testified that drowning could have occurred if Dominique's head were held submerged in water for several minutes or by several short, repeated dunks that caused her to inhale water each time.
Detective Ted Przepiora testified that he arrived at South Shore Hospital at 11:30 a.m. Przepiora saw the injuries on Dominique's body. A doctor told him the injuries were evidence of child abuse. Burton told Przepiora that she put Dominique in the bathtub, then put her on the toilet and left her. She later discovered Dominique unconscious on the floor. Przepiora later spoke to paramedic Bixter, who told him that the body had been cold and rigor mortis was setting in when he first examined Dominique.
Burton told Przepiora that Locke left the apartment that morning to make a telephone call. While he was gone, Dominique urinated in her pants. While Burton was putting Dominique in the bathtub, Locke returned. Burton said that she heard a noise while Dominique was on the toilet and assumed Dominique had fallen. She found Dominique on the bathroom floor, unconscious and not breathing. After trying to revive Dominique, Burton called her mother. Burton said that Dominique's other injuries occurred while she was in foster care.
Przepiora testified that, at the police station, Burton told detectives that the burns on the back of Dominique's legs were sustained when Locke disciplined Dominique for incorrectly pronouncing her name. Burton saw Locke holding Dominique above the radiator. Burton did not do anything to stop Locke and did not seek medical treatment for Dominique because she did not want DCFS to remove her children again.
Burton then said that Locke left the apartment that morning to make a telephone call. After Dominique urinated in her pants, Burton put her in the bathtub and left her. Locke returned and Burton told him that Dominique had another accident. Locke went into the bathroom and Burton heard him yelling at Dominique. Dominique then became quiet and Locke left the bathroom and closed the door. Burton later found Dominique lying face up in the bathtub. She was not breathing.
Detective Przepiora then spoke to Cynthia Hodges, the social worker assigned to Burton. Hodges told him Dominique had been returned to Burton from foster care in April 1995. She had been removed because she tested positive for cocaine exposure at birth.
Przepiora next spoke to Locke. He first gave Locke Miranda warnings and asked him about Dominique's injuries. Locke said that Burton told him Dominique had accidentally brushed against the radiator, but that he was unaware of other injuries. Locke said he and Burton put Dominique in the bathtub, then on the toilet. Burton later found Dominique unconscious on the floor. In a later interview, Locke said he occasionally twisted Dominique's ears as punishment.
Przepiora then spoke to Burton and advised her of her Miranda rights. She said she walked into the bathroom and saw Locke forcing Dominique's head into the water two or three times while Dominique screamed. Burton yelled at him to leave Dominique alone. Locke came out of the bathroom, closed the door, and then played cards with Burton. After the card game, Burton went into the bathroom and found Dominique floating in the bathtub, not breathing.
Assistant State's Attorney Matthew Walsh testified that Locke confessed after he was confronted with the autopsy results showing that Dominique was drowned. Locke demonstrated how he forced Dominique's face into the water. Locke stated that he returned to the apartment on the morning of January 22. Burton was chasing Dominique with a belt, saying, "That little bitch pissed again." Locke saw that Dominique had urinated on the new carpet. Burton filled the bathtub and put Dominique in. Locke splashed her and told her, "You have to stop pissing on the floor." He forced her head under the water for about 15 seconds, let her up, and repeated his statement. He dunked her three times. Dominique sat up and then turned on her side. Locke left the bathroom with Burton and Tiffany. He and Burton played cards for half an hour. He did not hear noise from the bathroom. Burton then called him into the bathroom where she lifted Dominique out of the tub. Locke tried to "push on her back" but Dominique did not wake up. Locke dried her off and dressed her in a clean sleeper. Burton called her mother, who then called 911. Locke said the marks on Dominique's buttocks were caused when he put her on the radiator around Christmas. Locke's handwritten statement was submitted to the jury.
We first address Burton's argument that the trial court erred in issuing a nonpattern jury instruction on parental accountability. The following instruction, which tracks language in People v. Stanciel, 153 Ill. 2d 218, 606 N.E.2d 1201 (1992), was given in addition to the standard instruction on accountability:
"A person is legally accountable for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of the offense, he knowingly solicits, aids, abets, agrees to aid, or attempts ...