Where a defendant was convicted of murder after his rough treatment of an 84-year-old man for whom he was a caregiver and who died two weeks later in a nursing home, his postconviction petition should not have been dismissed at the second stage where it made a substantial showing of a constitutional violation by alleging trial counsel’s ineffectiveness in neither investigating nor presenting a defense of gross negligence by treating medical staff as a superseding, intervening cause and where expert opinion as to that gross negligence was presented by affidavit.
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Kevin M. Sheehan, Judge, presiding.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Shawn M. O'Toole, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz and Hareena Meghani-Wakely, Assistant State's Attorneys, of counsel), for the People.
Justices JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Thomas, Garman, and Karmeier concurred in the judgment and opinion. Justice Theis took no part in the decision.
¶ 1 The petitioner, Albert Domagala, was convicted of first degree murder. He subsequently filed a postconviction petition in which he alleged that his trial counsel rendered ineffective assistance when he failed to conduct a diligent investigation to discover that a superseding, intervening cause, i.e., gross negligence of treating medical staff, and not petitioner's conduct, caused the death of the victim. The circuit court of Cook County granted the State's motion to dismiss petitioner's petition, finding that petitioner had failed to make a substantial showing of a constitutional violation. The appellate court affirmed. 2011 IL App (1st) 092905-U. For the reasons that follow, we reverse the judgments of the lower courts and remand the cause to the circuit court for an evidentiary hearing.
¶ 2 Background
¶ 3 The following evidence was adduced at petitioner's bench trial. Petitioner was the live-in caretaker for 84-year-old Stanley Kugler. At approximately 8 p.m. on October 6, 2003, Stanley's neighbor, Mrs. Clowers, was looking through her bedroom window into Stanley's home. She saw petitioner slap Stanley in the face at least six times with enough pressure to cause Stanley's head to "bob" back and forth and she saw petitioner put his forearm against Stanley's throat at least three times. Mrs. Clowers also saw Stanley put up his arms "like he was trying to protect himself from something." Mrs. Clowers summoned her husband. Mr. Clowers also saw petitioner slap Stanley and put his arm against Stanley's throat and Stanley's head "go back." Mrs. Clowers then telephoned Thomas Guidice, a neighbor and police officer. Guidice came to the Clowers' home and saw petitioner pressing his forearm against Stanley's throat three to four times. He also saw petitioner put his hands on Stanley's shoulders.
¶ 4 Guidice left the Clowers' and went to Stanley's home. About five minutes after Guidice rang the doorbell, petitioner opened the door. Guidice went into the home and found Stanley sitting on the toilet with his pants down, crying. Guidice could see red marks on Stanley's throat. Paramedics arrived shortly thereafter.
¶ 5 After being advised of what occurred, the paramedics performed a quick examination of Stanley. They observed no contusions on his neck and Stanley complained of no pain or tenderness upon examination. As a precaution, however, the paramedics immobilized Stanley's neck with a cervical collar and placed him on a back board. Stanley was also given oxygen, a cardiac monitor, and an IV. Stanley did not state that he was in any pain until he was immobilized, at which time he complained of pain in his lower back.
¶ 6 At the hospital, a CAT scan was done, which indicated Stanley had a cervical fracture. However, sometime thereafter an MRI was performed, which suggested only a ligament injury to the neck. The use of a cervical collar was standard medical practice for both a ligament injury and a cervical fracture.
¶ 7 Robert Kugler, Stanley's son, went to the hospital after his father was taken there. Early on the morning of October 7, Stanley asked for some water. He was still wearing the cervical collar. Robert observed his father choke on a small cup of water. Robert called for the attending doctor, who helped Stanley clear his throat. Robert had not seen his father have difficulty swallowing before that point, although Stanley had been placed on a soft diet for a period of time earlier that year.
¶ 8 The same day, Michelle Bohne, a speech pathologist, evaluated Stanley. Prior to being given anything, Stanley was coughing. Bohne's examination revealed that Stanley was able to swallow his own saliva, but had problems with drinking water and a thicker liquid. According to Bohne, when Stanley attempted to swallow the thicker liquid, he swallowed multiple times and coughed to the point of choking. It was Bohne's assessment that Stanley possibly had oral and pharyngeal dysphagia. Oral dysphagia is difficulty swallowing due to mouth dysfunction whereas pharyngeal dysphagia is difficulty swallowing due to throat problems. Bohne recommended Stanley receive nothing by mouth and ordered a video fluoroscopic evaluation be done.
¶ 9 On October 8, Bohne conducted the video fluoroscopic test, in which Stanley was X- rayed while swallowing various liquids and solids mixed with barium. Stanley was wearing the cervical collar during these tests. After conducting the tests, it was Bohne's opinion that Stanley had mild oral dysphagia and moderate to severe pharyngeal dysphagia. Bohne recommended Stanley receive nutrition by a means other than normal oral consumption and also recommended swallowing therapy.
¶ 10 Dr. Bajaj, a gastroenterologist, testified he was aware that a swallow study had been done and knew it was done while the cervical collar was still on Stanley. Dr. Bajaj maintained that performance of the study with the collar on was proper "because he [Stanley] would have needed to swallow and wear the collar both."
¶ 11 Dr. John Andina, a cardiologist and Stanley's treating physician for over 10 years, testified that Stanley suffered a heart attack and stroke in February of 2003. After this, Stanley experienced mild dysphagia, which was treated successfully. In September of 2003, when Dr. Andina treated Stanley for gastrointestinal bleeding, there was no evidence Stanley was having trouble swallowing.
¶ 12 After Dr. Andina reviewed the radiologist reports from the video fluoroscopic test, and consulted with other treating physicians, he recommended that a percutaneous endoscopic gastrostomy (PEG) tube, or feeding tube, be inserted into Stanley's stomach. The procedure was performed in the hospital.
¶ 13 Approximately a week after being taken to the emergency room, Stanley was discharged to a nursing home with the feeding tube still in place. While in the nursing home, Stanley pulled out the feeding tube several times causing peritonitis, a systemic infection, which ultimately led to his death on October 21, 2003.
¶ 14 Dr. Aldo Fusaro, the medical examiner who performed an autopsy on Stanley, testified that he reviewed Stanley's medical records and examined his body. He found no evidence of throat or neck injury and the X-ray he took showed no spinal fracture. Dr. Fusaro opined that Stanley died as a result of infection, due to displacement of the feeding tube. Dr. Fusaro ruled that the manner of death was "accidental" in both his report of postmortem examination and on the death certificate.
¶ 15 Dr. Fusaro expressed concern about how the swallow study was done. He had an "issue" with the test being performed with the cervical collar remaining on Stanley because that could affect the study. He further believed that it would be an "appropriate deduction" to conclude that Stanley may have been able to swallow without the collar.
¶ 16 Robert testified that when he hired petitioner to be his father's live-in caretaker following Stanley's stroke, petitioner was aware of Stanley's medical conditions. Prior to being hired, Robert had advised him that his father had trouble walking, was weak, had short term memory loss, needed assistance going to the bathroom, and needed meals prepared for him. Petitioner was responsible for cutting Stanley's food into small, normal-size bites. Stanley was not on any restricted diet and was able to eat anything petitioner prepared for him.
¶ 17 Robert testified that after petitioner began caring for his father, Robert would visit the home about two to three times a week and called every day to see how his father was doing. Occasionally, Robert ate with his ...