Court of Appeals of Illinois, First District, Third Division
Defendant’s conviction for aggravated battery of a child was reversed and the cause was remanded for a new trial on the grounds that the trial court abused its discretion in allowing the child to be presented as an exhibit of the injuries defendant allegedly inflicted in the course of washing the child with scalding water and in admitting evidence of a liver contusion, and at the new trial, the trial court’s refusal to admit evidence of the mother’s loss of custody of her children and her prostitution arrests as irrelevant would stand to bar that evidence, and the acquittal on the heinous battery charge will prohibit retrial on that charge.
Appeal from the Circuit Court of Cook County, No. 09-CR-14026; the Hon. Stanley J. Sacks, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Levi S. Harris, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Margaret M. Smith, Assistant State’s Attorneys, of counsel), for the People.
Justices Neville and Pucinski concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Michael Barnes was convicted of aggravated battery of a child and sentenced to 30 years in prison with a 3-year period of mandatory supervised release. On appeal, Barnes contends that the circuit court erred in (1) barring Barnes from questioning the victim's mother about her children being removed from her custody and her arrests for prostitution, (2) allowing the State to introduce evidence of the victim's liver contusion where the State did not show that the injury resulted from a crime in which Barnes participated, and (3) allowing the State to show the jury the victim's actual injuries to establish the element of permanent disfigurement. For the reasons that follow, we reverse the judgment of the circuit court of Cook County and remand for a new trial.
¶ 2 BACKGROUND
¶ 3 In July 2009, Felice Toney lived in a basement apartment at 5204 South Honore Street in Chicago with her two-year-old son, K.T., and Barnes. Toney had not lived in the apartment for very long and did not know Barnes before she moved into the apartment. Toney also had an infant daughter who was living with the baby's father at the time Toney and K.T. were living in the basement apartment on Honore.
¶ 4 The owner of the house on Honore lived on the first floor with his daughter Denise, her boyfriend and their two children, and his daughter Shawanda and her eight children. Shawanda's children were between the ages of 2 and 12, and Denise had a 2-year-old and an infant. Toney knew Denise through mutual friends.
¶ 5 The basement apartment consisted of an open space with a pull-out couch, a second couch, and an area separated by a partial wall with a twin bed. Pit bulls were kept in a fenced-off area of the apartment. There were no kitchen facilities. There was a bathroom with a sink, toilet and shower, but the shower did not work. To bathe K.T., Toney would fill the bathroom sink with soap and water and give K.T. a sponge bath.
¶ 6 On the afternoon of July 19, 2009, Toney watched three movies in the basement apartment with K.T. and two of the young children who lived upstairs. It was hot in the basement, and K.T. was dressed in a diaper and T-shirt. At approximately 9:30 p.m., Toney left the apartment to go out with friends. Barnes agreed to take care of K.T. as long as Toney returned by 9 a.m. the following day so that he could go to work.
¶ 7 When Toney returned to the apartment at approximately 8:30 a.m. on July 20, Barnes and Denise were in the apartment talking. Toney sat on the couch and noticed that K.T. was lying on the pull-out couch in a position with his arms bent at the elbows underneath his torso, his fists up by his shoulders, and his knees drawn up so that his bottom was in the air. K.T. had his face turned toward the wall, apparently sleeping. Denise's boyfriend came into the apartment and the adults talked for five more minutes.
¶ 8 Denise and her boyfriend then left and Toney noticed that K.T. was looking at her and that he was shaking. Barnes picked K.T. up and sat him on Toney's lap. Toney patted K.T.'s bottom and realized he was not wearing a diaper and started unzipping the sleeper he was wearing so she could put a diaper on him.
¶ 9 Toney pulled the sleeper down and saw that K.T.'s skin was shiny and white and that his back appeared to be melted and peeling and was covered in blisters and boils. Toney asked Barnes what happened and Barnes said that he had bathed K.T. and maybe the water was too hot. Toney wrapped K.T. in a blanket, took him outside, and called her grandmother who lived nearby to take them to the hospital.
¶ 10 Toney's grandmother drove them to Provident Hospital, where doctors inserted an IV and transferred K.T. to Stroger Hospital by ambulance. The doctors at Stroger began treating K.T. immediately, cutting off boils and dead skin. The skin on the entire midsection of K.T.'s back, extending down his back and including the skin on his buttocks, was gone. K.T. had boils on his shoulders, his legs were raw, and boils went down to the top of his feet.
¶ 11 Additional tests were ordered, including liver and pancreatic enzyme tests. K.T.'s liver enzymes were extremely high, an indication of a possible internal abdominal injury. A CT scan revealed a contusion or bruise on the left lobe of K.T.'s liver.
¶ 12 Chicago police officers spoke to Toney at the hospital and she told them what Barnes had said about bathing K.T. Later that afternoon, three detectives went to 5204 South Honore to pick Barnes up for questioning. The detectives located Barnes outside the residence and transported him to the police station. The detectives advised Barnes of his Miranda rights, and Barnes indicated that he would waive his right to remain silent and would answer their questions.
¶ 13 Barnes told the detectives that he was washing some clothes in a plastic tote at approximately 5:30 a.m. when he smelled something. Barnes noticed that K.T., who was in bed, "was shitty and wet" and the bed was wet. Barnes took K.T. from the bed and took him into the bathroom, where he soaped him up and put him in the plastic container he had been using to wash the clothes. Barnes gave conflicting statements about whether K.T. was seated or standing in the container. Barnes then used a smaller plastic container to pour water over K.T. to wash the soap off while K.T. was still in the plastic tote. Barnes said that he mixed the hot and cold water and used that water to rinse K.T.
¶ 14 Barnes told the detectives that K.T. cried and struggled to get out of the tote, but that he "was determined to keep him in the tub" in order to rinse the soap off his body. Barnes said that he realized the water he used to pour over K.T. was hot, but he did not know how hot it was. After the bath, which lasted for five minutes or longer, Barnes dressed K.T. in a zip-up sleeper without a diaper.
¶ 15 On August 6, 2009, Barnes was charged by information with one count of attempted first degree murder, three counts of aggravated battery of a child, and three counts of heinous battery. Barnes proceeded to trial on two ...