Court of Appeals of Illinois, First District, Third Division
Defendant’s conviction for first degree murder of his infant son and sentence to 35 years in prison based on an incident in which he shook the child in a fit of anger were upheld over his contentions that he did not know the shaking created a strong possibility of death or great bodily harm and that the trial court improperly considered the child’s death as an aggravating factor, since the evidence supported an inference of knowledge of a strong probability of death or great bodily harm and the record showed the court did not focus on the child’s death in imposing a sentence but, rather, the court’s attention was on the manner and circumstances of the death.
Appeal from the Circuit Court of Cook County, No. 09-CR-17820; the Hon. Hyman I. Reibman, Judge, presiding.
Daniel D. Hinich, of Homewood, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Matthew Connors and Iris Ferosie, Assistant State's Attorneys, of counsel), for the People.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.
HYMAN PRESIDING JUSTICE
¶ 1 Defendant, Ibrahim Kibayasi, was found guilty of the first degree murder of his infant son and sentenced to 35 years in prison. Kibayasi shook the crying baby in a fit of anger, inflicting injuries consistent with shaken baby syndrome as the cause of death. Kibayasi appeals, arguing that the trial court erred by convicting him of first degree murder because the evidence only supports the mental state of the lesser offense of involuntary manslaughter where he was not consciously aware that his actions would create the strong possibility of death or great bodily harm. We disagree and affirm. Here, we may infer from the circumstances surrounding the incident, defendant's conduct, and the nature and severity of the victim's injuries that defendant acted knowing of a strong probability of death or great bodily harm.
¶ 2 BACKGROUND
¶ 3 In 2002, Kibayasi, a native of Tanzania, came to the United States at age 22 on a student visa. Kibayasi attended college in Atlanta, Georgia, receiving an associate's degree in accounting in 2004. He subsequently moved to Chicago and worked as a phone technician and then a transportation analyst. In 2007, Kibayasi began dating Martha Lupembe. After Lupembe became pregnant in 2008, Kibayasi moved into an apartment with her. Kibayasi and Lupembe's son Dylan was born on March 26, 2009.
¶ 4 On September 3, 2009, Kibayasi was home caring for the then-five-month-old while Lupembe was at work. Kibayasi became frustrated with Dylan's crying. He shook him with enough force to cause Dylan to become unconscious. Kibayasi performed CPR on Dylan and then placed the infant in the car to take him to the hospital. Dylan began crying, which Kibayasi took as a good sign. As a result, Kibayasi decided to pick Lupembe up from work instead. While sitting in the back seat of the car with Dylan, Lupembe saw that Dylan was having a seizure, and she called 911. The dispatcher instructed them to pull the car over and wait for an ambulance. Kibayasi stopped at a gas station. Emergency vehicles soon arrived and took Dylan to the hospital. He was diagnosed with extensive retinal hemorrhages in the back of his eyes and subdural hematomas on both sides of his brain. Dylan's treating physician testified that his injuries were likely caused by nonaccidental trauma, otherwise known as shaken baby syndrome. Dylan's condition deteriorated and he died on September 9, 2009.
¶ 5 Kibayasi did not tell Lupembe or the doctors at the hospital that he shook Dylan. Later, Kibayasi provided a videotaped statement to police and an assistant State's Attorney in which Kibayasi explained that after Dylan refused to eat and kept crying, Kibayasi started shaking him, saying "Why you crying?" and "What you want?"
¶ 6 The matter proceeded to a bench trial. The State introduced Kibayasi's statement as evidence and presented Lupembe's videotaped deposition, testimony from the responding paramedics, Dylan's treating physician, the doctor who performed Dylan's autopsy, and an expert in pediatric emergency medicine regarding shaken baby syndrome. Kibayasi testified on his own behalf.
¶ 7 Kibayasi was found guilty of first degree murder and acquitted of aggravated battery to a child. The trial court denied Kibayasi's motion asking for a judgment of acquittal or a new trial. After a hearing, Kibayasi was sentenced to 35 years in prison.
¶ 8 Evidence at Trial
¶ 9 At trial, Prospect Heights fire department paramedic Ryan Petty testified that on September 3, 2009, at about 5 p.m., he responded to a gas station at Palatine and Wolf Roads, in Prospect Heights. On arriving, he was directed to a car, where he found Dylan unresponsive but breathing. Petty testified that Dylan was not crying or cooing, his body was rigid, and his eyes were rolled into the back of his head. Dylan's mother stood nearby and cried as the paramedics treated Dylan. Petty drove the ambulance that took Dylan to the hospital.
¶ 10 A Village of Prospect Heights fire fighter, Lieutenant Jeff Szczech, testified that on September 3, 2009, he responded to a gas station at Palatine and Wolf Roads in an advanced life-support engine. Once there, Szczech was directed to a baby in the backseat of a car. He saw a man and woman and assumed that the woman was the baby's mother because she was "frantic" about getting her son treatment. He observed that the mother stood nearby while the baby was treated and the father stood away and had a quiet demeanor.
¶ 11 After stipulations were entered regarding the videotaped deposition of Lupembe, the State entered it into evidence and published the deposition to the court. In her deposition, Lupembe testified that she was born in Tanzania and came to the United States when she was 17 years old on a student visa. She studied biology at Northern Kentucky University, and after two years, moved to Illinois and attended Truman College and Roosevelt University. In 2004, Lupembe met Kibayasi. They began dating in 2007, the same year she began working as a financial analyst in Northbrook, Illinois.
¶ 12 In August 2008, Lupembe testified that she moved into an apartment with Kibayasi in Mount Prospect. On March 26, 2009, Dylan was born to them. At birth, Dylan was "jittery" and placed in the neonatal intensive care unit for 24 hours for observation. Several tests were performed to rule out seizures. She was informed that Dylan had a premature nervous system and the "jittery" behavior would wear off. By Dylan's one month check-up, all of the "jitters" were gone. At the time of his death, five-month-old Dylan was a happy child, according to Lupembe, and could roll over 360 degrees, was playful, and "liked jumping." Dylan's development was normal and "very active."
¶ 13 Lupembe testified that Kibayasi was primarily responsible for caring for Dylan while she was at work. On days when Kibayasi had something to do or a job interview, Dylan would go to day care. On Friday, August 27, 2009, Dylan was at day care because Kibayasi had a job interview. When Lupembe picked him up, Dylan appeared to be normal. On Saturday, August 28, 2009, Dylan went to Lupembe's cousins' house and stayed there overnight. The next day, Lupembe's cousin dropped him off at home and Dylan appeared normal. On Monday, August 31, 2009, Lupembe noticed that Dylan had a "bit of a cold" and she sat with him in a steamy bathroom to help clear out his congestion. That evening, Dylan vomited and had loose stool. On Wednesday, September 2, 2009, Dylan's symptoms continued and Lupembe called Dylan's doctor and spoke with a nurse. Dylan's doctor called Lupembe and explained that the vomiting "wasn't consistent with anything" and the loose stool was to be expected after changing Dylan's baby formula. The doctor advised Lupembe to "just keep an eye on the baby."
¶ 14 On Thursday, September 3, 2009, Lupembe woke up at 6 a.m., fed Dylan a bottle of baby formula and was driven to work by Kibayasi around 7:30 a.m. Lupembe sat in the back of the car with Dylan, who acted happy and alert and was looking around at things. Lupembe told Kibayasi that Dylan might sleep a lot that day because he had not slept well the night before.
¶ 15 At 4 p.m., Lupembe received a text message from Kibayasi stating that he would be late picking her up from work. A short time later, Kibayasi called Lupembe and explained that he was initially going to be late picking her up because he planned on driving Dylan to the hospital because Dylan had been vomiting and appeared weak. Kibayasi then told Lupembe that Dylan seemed alert again, so Kibayasi decided to go get her instead.
¶ 16 At around 5 p.m., Kibayasi arrived. When Lupembe saw Dylan, she immediately believed something was wrong with him. Dylan's eyes were blank and he was unresponsive. Lupembe listened to Dylan's breathing because his chin was down and his breathing was hard and labored. As Lupembe called 911 from her cell phone, she saw Dylan seizing. Dylan's eyes went blank and his body stiffened up. Lupembe yelled to defendant to "drive, drive, drive" because she thought it would be faster to drive to the hospital than wait for an ambulance. Lupembe testified that the 911 dispatcher instructed them to pull over so that the ambulance could find them. They stopped at a gas station right across from the Wheeling fire department.
¶ 17 Lupembe testified that while she was in the car with Kibayasi, she asked him if anything had happened that day. Kibayasi responded, "No." Lupembe also asked Kibayasi if Dylan was seizing on the way to pick her up. Kibayasi replied, "No. It started now."
¶ 18 At the hospital, Lupembe spoke with the doctor and tests were performed on Dylan. The doctor informed Lupembe that a scan revealed that Dylan had blood in his brain. The doctor asked Lupembe if Dylan had fallen, been shaken, or had any traumatic incident happen to him. Lupembe responded, "No." Then Lupembe asked Kibayasi if Dylan fell and Kibayasi said, "No." Lupembe testified that she did not ask Kibayasi if he shook Dylan because she did not think that would ever happen and believed Kibayasi to be a good father. Lupembe testified that the symptoms that Dylan exhibited ...