Appeal from the Circuit Court of Cook County No. 09 CR 3945 Honorable Thomas P. Fecarotta, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Robert E. Gordon
JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.
Justice Cahill concurred in the judgment and opinion.
Presiding Justice Garcia specially concurred, with opinion.
Defendant Jenell Land was found guilty by a jury of aggravated cruelty to a companion animal, a Class 4 felony. 510 ILCS 70/3.02 (West 2006). After the trial court denied her motion for a new trial, defendant was sentenced to 30-months probation.
On this appeal, defendant claims that the trial court erred: (1) when it failed to instruct the jury that the State had to prove a specific intent by defendant to injure her dog; (2) when it responded to a jury note by stating that whether defendant intentionally committed an act that caused her dog to suffer was a question of fact for the jury to decide; (3) when it found that defendant received her Miranda warnings even though she was not paying attention during the officer's reading of them; (4) when it permitted the State during closing argument to refer to defendant's use of profanity in her dealings with the police; and (5) when it assessed certain fines and fees.
For the following reasons, we affirm defendant's conviction and vacate the two charges which defendant disputes on appeal.
The following facts are not in dispute. At trial, defendant admitted that she and her boyfriend purchased a heavy industrial tow chain to use as a collar for their pitbull dog. Defendant claimed that they did this, because the dog had broken free from other collars, and they wanted to keep him from running away. On July 28, 2008, after receiving a citizen's complaint about a dog being left outside in hot weather without water or shelter, the investigating officer observed the chain wrapped around the dog's neck and instructed defendant that a tow chain was not a proper collar for a dog and that she had to change it. On November 30, 2008, a veterinarian euthanized the dog, after observing a large gaping hole in the dog's neck and a tow chain wrapped around the dog's neck, with the chain embedded in the neck and coming through the hole. During the defense's opening statement at trial, defendant's sole defense was that her act was stupid but not criminal.
A key factual issue at trial concerned the length of time that the chain had been continuously on the dog. The veterinarian testified that it would take approximately a week for the chain to break through the skin to expose the muscle and then an additional five to seven weeks for the chain to become as embedded in the neck as it was. By contrast, defendant testified that, a week prior to November 30th, the chain had been off the dog and his neck had no visible injury.
On January 26, 2009, defendant was arrested for aggravated cruelty to a companion animal. On February 26, 2009, she was indicted for the same offense. The indictment charged that: "on or about July 16, 2008[,] CONTINUING THROUGH NOVEMBER 30, 2008[,] at and within the County of Cook[,] JENNELL LAND committed the offense of AGGRAVATED CRUELTY TO ANIMAL [sic] in that SHE INTENTIONALLY COMMITTED AN ACT THAT CAUSED SERIOUS INJURY OF A COMPANION ANIMAL, A PIT BULL, BY PLACING A TOWING CHAIN AROUND IT'S NECK[.]"
On April 26, 2009, defendant filed a motion to suppress statements and a separate motion to quash arrest and suppress evidence. Defendant moved to suppress her statements to the police on the ground that she was not informed of her Miranda rights after her arrest. She also claimed that the interrogation continued after she elected to remain silent "and/or" elected to consult with an attorney prior to further questioning. Defendant's motion to quash arrest and suppress evidence claimed that the police lacked either a warrant or probable cause when they arrested her on November 30, 2008. After an evidentiary hearing, both pretrial motions were denied.
II. Pretrial Suppression Hearing
Since one of defendant's claims on appeal concerns the pretrial suppression motion, the facts of the hearing are presented in detail.
At the pretrial suppression hearing held on May 20, 2009, the trial court heard first the motion to quash the arrest.
Defendant testified that she lived with her grandparents on Pacific Avenue, in Hoffman Estates and that she was living at the Pacific Avenue address on November 30, 2008. However, on November 30th, at approximately 9 p.m., she was with her children and their father at his residence on Briar Hill Drive in Schaumburg, and she had stayed there the night before. At approximately 9 p.m. police officers knocked on the door and she answered it. She then stepped outside and stood on the porch.. Defendant testified that a male officer said " 'You've been a naughty girly, and you know what you've done wrong.' " The two officers, a male and a female, then dragged defendant to a police vehicle and handcuffed her. They transported her to the Schaumburg police department, where officers asked her questions and she made statements. Defendant testified that she was not shown a warrant for her arrest.
The State then called Dennis Schmitt, a police officer with the Schaumburg Police Department. Schmitt testified that, on November 30th, he was accompanied by fellow officer Brian Trumf, whom Schmitt was training.. Schmitt received information from a community service officer that an animal was brought into an animal hospital with a chain embedded in its neck. That evening, they spoke to Karen Davies, the treating veterinarian technician, at her residence, and showed her a photographic array. The array included a photograph of defendant, taken prior to her arrest in this case. Davies identified defendant as one of the individuals who brought the dog to the animal hospital claiming that it was hers.
Schmitt testified that, after the identification, he went to the address that had been supplied to the veterinarian's office. The address was on Briar Hill Drive and he went there with Officers Brain Trumf, and Kendra Ziebell, and Community Service Officer Max Marcus. After Schmitt knocked on the door, defendant opened it and said "[h]old on" and then closed the door. Then Schmitt heard a female voice say "[t]hat f*** b*** called the cops." Then defendant exited the house, closed the door behind her and stood on the walkway next to the garage. Then she made a remark to the effect that she had not done anything and the dog was not hers. At that time, defendant was placed under arrest and transported to the police station. Schmitt denied that any of the police officers dragged defendant to the police vehicle.
The trial court denied the motion to quash the arrest, finding that the police had probable cause to arrest based on the veterinarian's identification and the fact that the dog had an industrial chain embedded in its neck. The trial court also observed that defendant, by her own testimony, was arrested outside and not at her own home.
For the motion to suppress statements, the defense recalled defendant as a witness. Defendant testified that, on the evening of November 30, 2008, between 9 and 10 p.m., she was brought in handcuffs to the Schaumburg police department. It took approximately 5 minutes to travel to the police station In the station, she was taken to a processing center, where police officers questioned her. Prior to the questioning, she was not informed of her Miranda rights. Four police officers were present, including Schmitt and a female officer.
The State called Kendra Ziebell, a Schaumburg police officer, who testified as follows. On November 30, 2008, Ziebell went to Briar Hill Drive with Officer Schmitt. When defendant stepped out of the residence, she was yelling and combative. Before the officers advised her why they were there, defendant started yelling that the dog was not even hers and that "b*** called the cops." Then Officer Schmitt placed defendant under arrest and advised her of her Miranda rights. When Officer Schmitt asked her if she understood her rights, she replied that he was "a b*** a*** motherf***." After being transported to the police station, defendant was placed in an open area of the booking room and handcuffed to a long bench. Approximately 20 to 25 minutes passed between defendant's initial arrest and the interview at the police station. Defendant never stated that she did not want to talk to the officers.
On cross-examination, Ziebell testified that defendant was not asked to sign a waiver of her Miranda rights. Ziebell wrote a report, but she did not indicate in the report that defendant received her Miranda rights because Ziebell was not the one who administered them.
In closing, defense counsel argued that his "client has credibly indicated that she was never read her Miranda rights." In addition to his client's testimony, defense counsel observed that there was no signed waiver of rights and no indication in a written report that the rights were read. After hearing argument from both sides, the trial court found credible the testimony of the two police officers that the Miranda rights were administered.
III. State's Evidence at Trial
Since we must later analyze whether the evidence on the issue of specific intent was closely balanced, and since defendant testified and deny intent, we must present in detail a description of the circumstantial evidence which may shed light on defendant's denial.
During opening statements, defense counsel conceded that defendant had placed a tow chain around the dog's neck and that this was "a really dumb thing to do." He argued that she did this because the dog ran away a lot and "[s]he didn't want her dog to run away." Her defense was that this was "a stupid idea but it was not a criminal act."
The State's first witness was Max Marcus, a community service officer with the Village of Schaumburg. His main duties involved animal control, and he had been employed in this position for 18 1/2 years. He was on duty during the evening of November 30, 2008, when he received an assignment to investigate an animal cruelty complaint from the Golf Road Animal Hospital. At the hospital, he spoke with Dr. Christina McCratic who showed him the body of a dog who had been euthanized. The dog was a pit bull with a large tow chain around its neck and a large gaping hole in its neck. After reviewing the related paperwork, Marcus recognized the Briar Hill address as an address that he had visited in July 2008.
Marcus testified that, in July 2008, he was investigating a citizen's complaint of animal cruelty, namely, that a dog was being left outside during severely hot weather with no food or shelter. When he first went to the location, he did not observe the dog. However, when he returned later that same day, he observed a pit bull tied to a swing set. After he knocked on the front door, defendant exited the residence and he informed her of the cruelty complaint. They then went to the backyard and he observed that the water dishes were tipped over. Defendant explained that she had just returned home and that the dog must have tipped over the dishes.
Marcus testified that he advised defendant that there had been a complaint of no shelter for the dog. Defendant responded that there was a playhouse where the dog could reside. However, Marcus observed that, since the leash was tied around the swing set, the dog could not reach the shelter. Defendant then responded that there was a large tree that provided shade in the afternoon.
Marcus testified that he also observed that there was a large tow chain wrapped around the dog's neck as a collar. Defendant stated that the chain was the only thing that prevented her dog from becoming loose and that the dog had become loose before. Marcus told her that a tow chain was not a proper collar for a dog, that she had to change that, and that he would be back in another day to check on it. Marcus observed that the dog appeared healthy, and he did not issue any civil citations at that time. Later in July, Marcus returned two or three times. However, he observed no dog outside and found no one at home.
Turning back to November 2008, Marcus testified that he recognized the euthanized dog in the animal hospital as the same dog that he had observed in July 2008 at defendant's house. The doctor and the animal technician provided Marcus with a description of the person who had brought the dog to the animal hospital; and their description reminded Marcus of defendant. Marcus then returned to the police station to obtain a camera in order to take photographs of the euthanized dog.
The four photographs which Marcus took were admitted into evidence.*fn1
The photographs depicted a tow chain wrapped around the dog's neck, and a big gaping hole in the dog's neck, and the chain coming through the hole. Marcus testified that it appeared to him as though the chain had grown through the dog's neck.
The State's next witness was Deborah Diamond, who had been an animal control police officer for the Schaumburg police department since 2001. Prior to 2001, she served as a community service officer since 1986. She was on duty on August 29, 2008, when she received an assignment at 1 p.m. concerning a stray dog that was being held at an address at Brendon Street. When she arrived, she did not observe any form of identification on the dog. She also performed a scan for a microchip that proved negative. Diamond then transported the dog to the impoundment facility, which is at the Golf Road Animal Hospital. After a dog has been impounded, the owner may claim it by identifying it at the hospital and then proceeding to the police station to pick up any citations that have been issued. Before release, the dog is implanted with a microchip for identification.
Diamond testified that Emangie Tripp of a Briar Hill address later came to the police station to claim the dog. At the time, Diamond did not observe any evidence of injury. Diamond testified that the Briar Hill address is approximately a block from where she had picked up the stray dog. Diamond issued three citations to Tripp when he came to claim the dog.
Diamond further testified that, on December 1, 2008, she went to Golf Road Animal Hospital to retrieve the chain that had been removed from a pit bull the day before. Diamond testified that the chain was a "heavy, industrial two type chain" with links that were approximately two inches, and that it weighed 3.4 pounds. Photographs of the chain taken by Diamond and the chain itself were then introduced into evidence.
The State's next witness was Dennis Schmitt, a Schaumburg police officer. Schmitt testified that he was on duty as a patrol officer on November 30, 2008, when he received an assignment at 7:30 p.m. to investigate an animal cruelty complaint. After receiving information from Max Marcus, a community service officer, Schmitt prepared a photographic array, which included a photograph of defendant, plus the photographs of three other individcuals. Schmitt then went to the residence of Karen Davis, who was employed at the Golf Road Animal Hospital. After showing Davis the photographic array, Schmitt, who was in uniform, proceeded in a police squad vehicle to the Briar Hill address, accompanied by Officers Trumf, Ziebell and Marcus.
Schmitt testified that he had previously been at this address on April 28, 2008, to investigate a complaint about a barking dog. On April 28, Schmitt observed a barking dog in the backyard chained to a swing set. Schmitt could not recall the type of chain. In response to Schmitt's knock on the front door, defendant answered it. After Schmitt told her to bring the dog inside, Schmitt observed her doing so.
Turning back to November 30, 2008, Schmitt testified that, after arriving at the Briar Hill address, he stood on the front porch and knocked on the front door. Defendant answered the door and said "hold on" to the officers. Then she walked away from the door and said "that f*** b***" called the cops. Then defendant threw open the door, walked out, slammed the door, and stepped off the porch. Defendant stated, "[t]his is f*** bullsh***. That dog ain't even mine." Then Schmitt placed under her arrest and read her Miranda rights. Defendant responded to the reading of her rights by saying "b*** a*** motherf***." Defendant kept screaming obscenities. The officers then escorted defendant to the squad vehicle.
Schmitt testified that, while defendant was sitting in the back of the squad vehicle, she stated that she "didn't mean to have it around the dog's neck to be mean or nothing." The vehicle arrived at the police station in a few minutes, and the officers placed defendant in a secured holding facility, where she was handcuffed to a bench. Schmitt testified that he tried to have a conversation with defendant, but she responded with a stream of obscenities.
The State's next witness was Kendra Ziebell, a police patrol officer with the Schaumburg police department. Ziebell testified that, on November 30, 2008, she accompanied Officer Schmitt and other police officers to the Briar Hill address.
After defendant came to the door, she said "hold on." and then she walked back inside and said "[t]hat b***, call the cops." Defendant then stepped out, closed the door and stepped off the front porch. Defendant stated "I didn't f*** do nothing. That dog ain't even mine." Ziebell then observed Schmitt place defendant under arrest and advise defendant of her Miranda rights. Officer Schmitt transported defendant to the police station, and Ziebell followed in a separate vehicle. At the police station, defendant was handcuffed to a bench, and she was screaming and yelling obscenities. Eventually, Ziebell was able to calm her down and have a conversation.
Ziebell testifed that defendant stated that she purchased the dog three years ago to be her family dog. Defendant stated that, at that time, she was the only owner of the dog, who was named Carmello. Defendant stated that, at that time, she lived in Hanover Park, but she lost her house there, and she had to move in with her grandparents in Hoffman Estates. Defendant stated that she then gave the dog to her children's father, who resided at the Briar Hill address. Defendant stated that, although she did not live at the Briar Hill address full time, she stayed there several nights a week and she always saw the dog. Defendant stated that the dog started running away from the house, and that the children's father purchased an industrial-strength chain at Home Depot to put around the dog's neck. Defendant stated that they tied the dog to a stake in the backyard.
Ziebell testified that defendant stated that she did not even notice the hole in the dog's neck, until her son brought it to her attention on November 29th. Defendant stated that she then reprimanded her son by saying "[h]ow did you not see this? This is bogus. You sleep with the d*** dog." When Ziebell asked defendant if she knew how the injury occurred, defendant replied that her son was responsible for taking the dog outside, and that he may have accidentally tightened the chain. Then defendant stated that the neighbors may have come over the fence and tightened it. Ziebell testified that, during this conversation, defendant referred to the dog as "my dog" several times.
Ziebell testified that defendant said that, although she was around the dog all the time, she never saw the hole until her son pointed it out. Defendant said that she noticed on November 29th that the dog was becoming emaciated and she did not understand why. Defendant stated that, when she saw the hole, she brought the dog to the animal hospital; however, she gave the technician a fake name because she was scared. Defendant stated that the hospital wanted $1,000 to save the "d*** dog," and she cannot even pay her a water bill. Defendant stated that, for collateral for the surgery, she offered her vehicle title, $500 and a flute.
The State then read a stipulation entered by the parties which stated that Carmello's microchip number was registered on August 29, 2008, to "Emagie or Jenell Trip at [the] Briar Hill [address], Schaumburg, Illinois."
The State's next witness, was Dr. Christina McCratic, an emergency veterinarian at the Golf Road Animal Hospital. McCratic has been an emergency veterinarian for 15 years, and had been employed at the Golf Road Animal Hospital for 10 years. The court accepted the witness as an expert in veterinary medicine, without objection.
McCratic testified that she was working at the Golf Road Animal Hospital on November 30, 2008, at 3:45 p.m. when she was asked to examine a dog named Carmello. As McCratic opened the door to the examination room, she could smell a strong odor of decaying rotten flesh. McCratic explained that a dog's body temperature is normally 102 degrees, so that if a part of the dog is decaying or rotting, it will give off a strong odor. McCratic said that it was "comparable to a 102 day in the summer, walking by a restaurant dumpster, where you smell that decaying food in there." From the smell alone, McCratic knew that there was a large infection. The examination room contained the pit bull, as well as defendant, a young black man, and an older Caucasian man. Defendant stated that there was a cut on her dog's neck and she wanted Dr. McCratic to remove the chain.
McCratic testified that she asked how long the cut had been there, and defendant replied that it had just happened. McCratic responded that a cut like that does not just happen, and that the chain had been on for a long time based on the amount of decay and discharge shown, and the condition of the animal. At that point, defendant volunteered that the dog belonged to her 12-year old son. McCratic replied that the dog cannot legally be owned by a minor, so the dog belonged to defendant. Defendant did not respond.
McCratic testified that she began her visual examination of the dog as soon as she entered the room. The dog could not lift his head. McCratic explained that the condition is called "ventroflexin" and the doctor demonstrated the condition by bringing her chin down toward her chest. McCratic further testified that the dog was very thin, with all his ribs sticking out and his hip bones protruding. The dog was standing and not moving, but he was trying to wag his tail.
Regarding the dog's neck, McCratic observed that the chain links had cut through the skin down to the muscle, and the muscle was exposed. She observed a very thick, yellow-green discharge or pus, which is associated with an extremely infected wound. The pus was the consistency of peanut butter or honey, and it was located all the way around his neck, coating the chain. The discharge would have transferred to anything it touched, because it was thick and sticky. There was also a lot of blood spattering on the chain which indicated that the muscle had been bleeding.
McCratic testified that there was a large hole in the neck, with a lot of discharge, and exposed muscle, and that the links were embedded underneath the skin. It was not possible to lift the chain off the dog's neck. McCratic stated that touching the chain without painkiller or anaesthesia would have been cruel. McCratic concluded that the dog's injury was life-threatening.
McCratic testified that a large section of chain looped around the dog's neck, with two separate pieces of chain extending down about five links. The chain was connected under the ventrum of the neck and into the skin. McCratic explained that the chain was too heavy to be a dog collar. Most collars weigh only three or four ounces. Even the heavy choke collars sold in pet stores weigh only ounces. McCratic explained that, by comparison, this chain weighed over three pounds, and thus would cause damage to the tissues underneath it. McCratic stated that even bolt cutters would not have been enough to remove this chain, because it was too heavy.
Explaining the treatment options to defendant, McCratic stated that the chain would have to be surgically removed. First, the dog would have to be assessed to determine if he was a candidate for anesthesia. If he could be anesthetized, then she would have to surgically dissect each link to loosen the skin that had grown over it. Then, due to the extensive necrosis of the skin, the dog would need extensive treatment for months to grow the tissue back without infection. The only other option was humane euthanasia because the dog was ill and in a lot of pain. McCratic then exited the room to allow defendant time to consider the options. McCratic was later informed that defendant had elected to euthanize Carmello.
McCratic testified that, before euthanizing Carmello, she offered him a can of dog food which that he ate ravenously. Observing how hungry he was, she offered him two more cans of food which he consumed quickly. After Carmello was euthanized, McCratic lifted the chain away from his neck, and she heard the ripping and popping of tissue, as her action broke the scar tissue that had grown over the chain. The chain had grown so far into the neck, that she concluded she would not be able to remove the chain without surgically dissecting the chain from the neck. Based on the extent and nature of the injury, McCratic called the police. Then she began surgically cutting through the skin and muscle to determine how many layers of tissue the chain had gone through. She discovered that the chain links were millimeters away from the trachea. In addition, the jugular vein had grown and was coming through a hole in one of the chain links.
McCratic explained to the jury how this injury occurred. When an item is placed too tightly on skin, the pressure cuts off the blood supply and the area dies and becomes what is called "necrotic tissue." Then the skin parts to reveal the next layer which is muscle. The tightness will also cause the muscle tissue to lose blood supply and die. The chain will keep cutting through layers of tissue as each layer dies from lack of blood supply. Meanwhile, the body tries to cover the area to create a barrier to prevent bacteria from entering. The covering over the necrotic or dead tissue is called "granulation tissue." The blood vessel will then seek new routes of blood to supply the granulation tissue, which is how the jugular vein began growing through the chain link itself. Carmello's neck was literally growing around the chain.
Based on her prior experience, McCratic estimated the amount of time it would have taken an injury to develop. First, it would have taken approximately a week for the chain to break through the skin to expose the muscle. Then, it would then have taken approximately five to seven weeks for the granulation tissue to have grown to the extent that it had, namely, with additional skin on top and some hair starting to grow. It would have taken a minimum of a month and a half for this injury to develop.
McCratic identified a couple of photographs of the dog which were taken after he was euthanized, and which were introduced into evidence.
On cross examination, McCratic testified that the names on the hospital's bill included Jenell Trip and Jumanja Tripp. Carmello was approximately two to two and a half years old, and normally, a dog of his type should have been just at the end of his growth spurt. McCratic had provided defendant with an estimate of how much treatment would have cost, but she did not recall defendant stating that she had cash with her. Defendant did not discuss with McCratic other possible forms of payment. However, McCratic was aware that defendant had decided on humane euthanasia due to a lack of funds. Defendant and her two companions stayed at the hospital for approximately an hour and a half after receiving the treatment estimate drawn up by McCratic, and before electing to euthanize.
The State's next witness was Charles Bulson, who managed the boarding kennel at Golf Road Animal Hospital and also performed animal control functions for the Village of Schaumburg. In the morning of December 1, 2008, he was told to remove a chain from the neck of an euthanized dog. After arriving at the hospital, he removed the dead dog from the storage freezer and storage bag. After pulling the dog's head back, he observed the chain embedded in its neck. The chain was a heavy-duty, hardened-steel chain used for tying down loads on trucks. Bulson testified that he had previously worked as an iron worker and a steel fabricator. The chain was so tight on the dog, that he could not fit bolt cutters on the chain to cut it. Then he reached inside the dog's neck to pull out the chain far enough to expose some of the links. However, he was still unable to cut the chain with the bolt cutters. Then he started looking for where the chain was connected, and he discovered a ...