Appeal from the Circuit Court of Cook County Honorable Diane Cannon Judge Presiding.
The opinion of the court was delivered by: Justice Karnezis
Following a jury trial defendant Andre Richardson was convicted of the first degree murder of his 11-month-old daughter and was sentenced to 40 years' imprisonment. Defendant now appeals and argues: (1) the trial court erred in denying his motion to suppress his statement; (2) he received ineffective assistance of counsel; (3) the trial court erred in refusing to instruct the jury on the lesser-included offense of involuntary manslaughter; and (4) he was denied a fair trial when autopsy photographs were published to the jury and sent to the jury room during deliberations. For the following reasons, we reverse and remand for a new trial.
The victim, Diamond Clark, was 11 months old when she was fatally beaten by her 16-year-old father on February 9, 2001. Defendant was arrested at approximately 3:30 p.m., on February 9, 2001, and ultimately gave a videotaped statement implicating himself in Diamond's death. The testimony at trial established that defendant punched, slapped, shook and bit his daughter. Defendant inflicted 61 injuries, both internal and external, on his daughter and Diamond died as a result of those injuries.
Prior to trial, the defense filed a motion to suppress defendant's videotaped statement on the grounds that it was involuntary and that defendant was unable to knowingly waive his Miranda rights because he was physically abused while in police custody.
At the hearing on the motion, Detective Edward O'Connell testified that on February 9, 2001, he was assigned to defendant's case. At approximately 8:30 that evening, Detective O'Connell arrived at Area 1 headquarters. At that time, defendant was brought upstairs to Area 1 from the 2nd District. Youth Investigator Nolan had defendant in custody. Detective O'Connell interviewed defendant at approximately 9:08 p.m. Present at the interview were youth investigator Nolan, Detective Zalatoris, defendant, and defendant's mother, Ellen Jean Brounaugh. Youth investigator Nolan read defendant his Miranda rights; defendant waived those rights and proceeded to make admissions. During the interview, Detective O'Connell noticed that defendant had a bump over his eye and his eye was swollen. Detective O'Connell asked defendant about the bump and defendant stated that it happened in the lockup. Detective O'Connell could not recall if he asked defendant exactly what happened in the lockup but testified that juveniles only get fingerprinted in the lockup and are not housed there. Detective O'Connell stated that he did not talk to the lockup keeper and could not remember if he reported defendant's injuries to anyone and did not include any information regarding defendant's eye injury in his reports. The interview lasted approximately one hour. Subsequently, Detective O'Connell called Assistant State's Attorney John Heil. Heil arrived at approximately 10 p.m. and continued to interview defendant. During that interview, defendant made statements admitting his participation in the crime. Assistant State's attorney Heil asked defendant about the bump on his eye and defendant told Heil that he was punched in the lockup A videotaped statement was made the following morning at approximately 9:27 a.m.
Detective John Zalatoris testified that on February 9, 2001, he and his partner, Detective O'Connell, were assigned to the murder of Diamond Clark. After going to the crime scene, he and his partner went back to Area 1. When they arrived there, defendant was in the 2nd District downstairs. When defendant was brought upstairs to Area 1, he had a swollen left eye. Defendant stated that he was hit by someone in the lockup. Detective Zalatoris did not ask for any details regarding the beating, but he did testify that juveniles are not kept in cells with adults but are housed in cells by themselves. Detective Zalatoris subsequently learned that the 2nd District had contacted the Office of Professional Standards regarding defendant's eye injury.
At approximately 9:08 p.m., Detective Zalatoris and Detective O'Connell interviewed defendant. Youth investigator Nolan first gave defendant his Miranda rights. Defendant waived those rights and agreed to speak to the detectives. Defendant made a statement and then Detective Zalatoris confronted him with the bite marks on the child. Defendant gave a further statement and Assistant State's Attorney Heil was called. Detective Zalatoris denied punching or physically abusing defendant. Representatives from the Office of Professional Standards were allowed to interview defendant after he made his videotaped confession.
Assistant State's Attorney John Heil testified that on February 9, 2001, he received an assignment regarding the aggravated battery of Diamond Clark.*fn1 Heil testified that he arrived at Area 1 headquarters at approximately 10 p.m. and spoke with Detectives O'Connell and Zalatoris and youth investigator Nolan. Heil was informed that defendant had a swollen left eye as a result of something that happened in the lockup. Heil did not see defendant at that time but left Area 1 and went back to the hospital to check on the status of Diamond. After midnight, Heil returned to Area 1 to interview defendant. With defendant's mother present, Heil informed defendant of his Miranda rights and defendant agreed to speak with Heil. Defendant made a statement to Heil. Subsequently, Heil asked Detectives Zalatoris and O'Connell to leave the room. Heil then asked defendant how he had been treated since arriving in Area 1 and if what he told Heil regarding the crime had anything to do with his swollen eye. Defendant told Heil that he had been treated fine and that what he had been telling Heil was the truth and his statement had nothing to do with what happened earlier regarding his eye. After the detectives and youth investigator came back into the room, Heil talked to defendant about his options of memorializing the statement he had previously given to Heil, youth investigator Nolan and Detectives Zalatoris and O'Connell. Defendant chose to give a videotaped statement. The videotaped statement was taken at 9:27 a.m. on February 10, 2001. Heil stated that at no time did he or any of the detectives punch defendant or otherwise coerce defendant to give a statement.
The videotaped confession was played in open court. In the video, defendant stated that he was advised of his Miranda rights and agreed to have his statement videotaped. Defendant's mother was present during the statement. Defendant stated that earlier he had told Assistant State's Attorney Heil that during the late morning and early afternoon of February 9, 2001, he bit Diamond three times, struck her numerous times with a coat hanger and a belt, used his hand to hit her in the face once and struck her in the ribs and shook her. Assistant State's Attorney Heil asked defendant about his swollen eye. Defendant stated that the injuries to his eye occurred in the lockup after he was taken to the 2nd District police station but before he was brought up to Area 1. Defendant further stated that the statement he was giving did not have anything to do with what happened to his eye. Defendant then proceeded to give a detailed account of the events leading to Diamond's death.
Youth investigator Michael Nolan testified that on February 9, 2001, he was assigned to defendant's case. After receiving the assignment, he met with Officer Hayes, who had arrested defendant in connection with the aggravated battery of Diamond Clark. He briefly spoke with Officer Hayes and defendant and then went to the hospital to check the condition of the victim. After arriving back at Area 1, he noticed that defendant was still downstairs in the 2nd District interview room with Officer Hayes. Investigator Nolan and Detectives Zalatoris and O'Connell walked in the interview room to speak with Officer Hayes. Investigator Nolan noticed that the left side of defendant's face, around his eye, was swollen. Defendant told Investigator Nolan that while he was being processed in the lockup, one of the lockup personnel struck him in the face. Officer Hayes informed him that the Office of Professional Standards was contacted regarding defendant's injury. Defendant was then brought to Area 1 and was placed in an interview room. Defendant's mother was called and subsequently arrived at the station. At 9:08 p.m., Investigator Nolan had a conversation with defendant while his mother was present. Defendant was "Mirandized" and agreed ...