Appeal from the Circuit Court of Jo Daviess County. No. 00-CF-21 Honorable William A. Kelly, Judge, Presiding.
The opinion of the court was delivered by: Justice Byrne
A jury found defendant, Joshea A. DeBord, guilty of involuntary manslaughter (720 ILCS 5/9--3(a) (West 2000)). The jury also found that the victim was less than 12 years old. At the sentencing hearing, the trial court found that the victim was a "family or household member" (725 ILCS 5/112A--3(3) (West 2000)). Based only on the family-or-household-member finding, the court ruled that the offense was elevated from a Class 3 felony to a Class 2 felony, and the court imposed a 10-year prison term. The court also imposed a $100 domestic violence fine and ordered that the fine be drawn from defendant's bond.
On appeal, defendant argues that his due process rights were violated because he was not charged with, and the jury did not find, the family-or-household-member element. The State responds that defendant's conviction and sentence may be affirmed under the harmless error doctrine as set forth in the recent supreme court case of People v. Thurow, 203 Ill. 2d 352 (2003).
We agree with the State that Thurow excuses the inadequate jury instructions. However, we reverse the conviction and sentence and remand the cause because the charging instrument did not allege that the victim was a family or household member. Finally, the State concedes that the trial court erred in ordering the fine to be drawn from defendant's bond.
The following evidence was admitted at trial. During the night of March 31, 2000, Tyler DeBord, who was two months old, died from a head injury suffered while in defendant's care. Tyler was the child of Christina Michels, defendant's girlfriend. Defendant was not the baby's father, but he supported Michels and the child. The baby had been videotaped at a family gathering the day before and appeared to be healthy before the incident.
Michels and defendant were each 20 years old at the time of the incident, and they lived with the baby in a trailer that they rented. At about 8 p.m. on the night of the incident, Michels went out with her cousin after arguing with defendant about her plans for the evening. Defendant agreed to watch the baby, but at 1:15 a.m., he alerted two neighbors, Patrick and Tracy Enright, that the baby was not breathing. The Enrights saw that the baby's head was bruised and that the baby was cold and had no pulse. Defendant's trailer lacked a telephone, and Tracy Enright called 911 and relayed cardiopulmonary resuscitation (CPR) instructions to defendant. Defendant placed the baby on the floor and attempted CPR. Officer Kevin Stewart arrived and observed that defendant was performing CPR incorrectly. Officer Stewart applied a defibrillator to the child and attempted CPR.
Paramedics tried to revive the child during the ambulance trip to the hospital. One paramedic observed two bruises under the baby's chin. A nurse noticed bruises on the baby's forehead, leg, and inner arms. The child died at the hospital at 3:37 a.m., and an autopsy disclosed that brain swelling resulting from an impact to the side of the baby's head caused his death. The baby's skull was fractured and his right leg was broken.
After the incident, defendant offered conflicting accounts of the events. Defendant initially told a police officer and the treating physician that he had simply discovered the baby not breathing and unresponsive in his bassinet. Upon later police questioning, defendant stated that he accidentally hit the baby on the coffee table while reaching for a container of water. Defendant ultimately admitted that he slammed the baby on the floor.
On April 3, 2000, defendant was charged by information with first-degree murder (720 ILCS 5/9--1(a)(2) (West 2000)), involuntary manslaughter of a family or household member (720 ILCS 5/9--3(f) (West 2000)), and aggravated battery of a child (720 ILCS 5/12--4.3(a) (West 2000)). On April 19, 2000, the same charges were filed by indictment.
On December 29, 2000, a superceding indictment was filed, charging only two counts of first-degree murder (720 ILCS 5/9--1(a)(1), 9--1(a)(2) (West 2000)). One of the charges was later dismissed. The remaining murder charge identified the victim as "Tyler Allan DeBord" and alleged that he was two months old at the time of the offense. The charge omitted the previous allegation that the victim was a member of defendant's family or household.
At trial, the court instructed the jury that it could find defendant (1) not guilty of first-degree murder and not guilty of involuntary manslaughter; (2) guilty of first-degree murder; or (3) guilty of involuntary manslaughter. The court instructed the jury on the elements of first-degree murder and involuntary manslaughter. The court added that the jury should not find defendant guilty of either offense unless the victim, "Tyler A. DeBord," was under 12 years old. The jury was not instructed to decide whether the victim was a family or household member. The jury found defendant guilty of the involuntary manslaughter of Tyler DeBord, a person under 12 years old.
At the sentencing hearing, the State argued that the victim was a member of defendant's family or household, and therefore, the offense was elevated from a Class 3 felony to a Class 2 felony. The State recommended a 14-year prison term, the maximum nonextended term for the involuntary manslaughter of a family or household member.
The trial court credited the State's argument but imposed only a 10-year term after concluding that defendant's sparse criminal history rendered the maximum sentence, 14 years' imprisonment, excessive. In imposing the sentence, the court did not rely upon the jury's finding regarding the youth of the victim, but the ...