Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 06 CR 17724. Honorable Neera Lall Walsh, Judge Presiding.
Defendant's conviction for the involuntary manslaughter of his four-month-old son was upheld over his contentions that the trial court erred in failing to instruct the jury on the definition of recklessness for purposes of involuntary manslaughter and in failing to conduct a hearing on whether shaken baby syndrome passed the general acceptance test of Frye, since the failure to give the instruction was harmless error because the evidence of defendant's recklessness was so clear and convincing that the verdict would not have been different if the instruction had been given, and the Frye test did not apply to the testimony that the death of defendant's son was due to shaken baby syndrome, because the Frye test applies only to scientific evidence, and the identification of shaken baby syndrome as the cause of death in the case of defendant's son was the expert opinion of the medical examiner based on the examiner's personal training and experience.
For Appellant, Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender and Brett C. Zeeb, Assistant Appellate Defender, Office of the State Appellate Defender, of Chicago.
For Appellee, Anita Alvarez, State's Attorney of Cook County, of Chicago. (Alan J. Spellberg, Mary Needham and Marci Jacobs, of Counsel).
PRESIDING JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion.
HOWSE, PRESIDING JUSTICE.
[¶1] The State charged defendant, Anthony Cook, Jr., with first degree murder in the death of four-month-old Anthony Cook III. The infant, Anthony, born March 5, 2006, died July 9, 2006 as the result of subdural hematoma after having been placed on life support on June 16, 2006, when defendant discovered the infant to be in distress and took him to the hospital. Following trial, a jury convicted defendant of involuntary manslaughter. Defendant appeals, arguing the trial court erred in failing to instruct the jury as to the meaning of recklessness for purposes of involuntary manslaughter and in failing to conduct a hearing to determine whether evidence concerning shaken baby syndrome (SBS) is admissible scientific evidence. For the following reasons, we affirm.
[¶3] The indictment charged defendant, Anthony Cook, Jr., with first degree murder
in that on or about May 27, 2006, continuing through June 16, 2006, defendant inflicted multiple injuries upon Anthony Cook III which resulted in his death. Prior to trial, defendant filed a motion to bar testimony about SBS. Defendant's motion sought an order barring testimony or other evidence concerning the theory of SBS, shaken impact syndrome (SIS), or abusive head trauma (AHT), on the grounds such evidence fails to pass the general acceptance test of Frye v. United States, 293 F. 1013 (D.C. 1923).
[¶4] Defendant's motion described SBS, SIS, and AHT as " theories" which postulate that shaking, or shaking coupled with impact, can generate sufficient forces to cause severe brain and eye trauma resulting in possibly fatal injury. The motion states that based on responses to discovery, the State would attempt to introduce evidence that SBS, SIS, or AHT was the cause of Anthony's death. Defendant anticipated that the State's witnesses would testify that Anthony sustained subdural hematoma and retinal hemorrhaging as a result of manual shaking, " also known as 'Shaken Baby Syndrome/Shaken Impact Syndrome/Abusive Head Trauma'" and that SBS, SIS, or AHT was " the only mechanism by which Anthony Cook, III could have sustained these injuries." Defendant conceded Anthony " had evidence of subdural hematoma as well as retinal hemorrhaging, but showed no other injuries" including neck injuries, bruising, or any other marks. Defendant argued that no empirical data exist concerning whether a human can exert sufficient force through shaking to cause retinal hemorrhaging or subdural hematoma, and that further research has shown that manual shaking or shaking with impact is invalid as a mechanism for brain injury and death. Defendant asserted that alternate theories for the cause of Anthony's death exist, and that nothing in the medical records indicated that SBS, SIS, or AHT was the mechanism of his death. Rather, " the medical records suggest that Anthony Cook, III died of natural causes." The defense asserted it was entitled to a hearing under Frye on the issue.
[¶5] At the hearing on defendant's motion, defense counsel argued that SBS " simply doesn't rest in science. It's anecdotal. It's conjecture. It's never been empirically tested." For that reason, the defense asked for a hearing under Frye to determine whether the evidence should be allowed. Defense counsel admitted that the medical examiner's findings based on an autopsy should be allowed into evidence, but the conclusion of SBS should not be allowed. The State responded that, based on the defense's concession, and because an autopsy is not new or novel, Frye is not implicated. The trial court held that Frye is not implicated by the testimony of the medical examiner who performed the autopsy. The court held that the medical examiner's " opinion testimony regarding the cause and manner of the death of the victim *** is not scientific. Therefore, Frye is not implicated *** and [his] testimony is subject to the standard rules governing the admission of expert witness testimony." Defendant also filed a motion to bar testimony that SBS is based on recognized medical science and a motion in limine to bar the use of the phrase abusive head trauma or shaken baby syndrome during the trial. After a hearing on those motions, the trial court held that, consistent with its previous ruling, the motions would be denied. The court held that SBS, SIS, and AHT are diagnoses and are opinions. The court held that the diagnoses were opinions that may be rendered by the medical personnel.
[¶6] Dr. Michael J. Humilier testified at defendant's trial that he was an assistant medical examiner for Cook County in 2006.
Dr. Humilier's specialty is forensic pathology, which is concerned with determining the cause and manner of death in individuals who have died of non-natural circumstances. The State asked that Dr. Humilier be qualified as an expert in forensic pathology and medical examination. The trial court qualified him as an expert in those fields without objection and ruled that Dr. Humilier may render an opinion. Dr. Humilier performed a postmortem examination of Anthony on July 10, 2006. He found no evidence of injury to Anthony's neck or skull. Dr. Humilier did not observe any skull fractures anywhere. Anthony had subdural hematoma on both sides of his brain and, according to an ophthalmologist who examined Anthony's eyes, retinal hemorrhaging. Retinal hemorrhaging can have a number of causes and Dr. Humilier had no way to distinguish how the retinal hemorrhaging was caused in this case.
[¶7] Dr. Humilier opined that injury to the neck would not always be observed anytime there is subdural hematoma and that it is unlikely that the injuries he observed to Anthony would be generated from just simple fall. Dr. Humilier opined that it is possible to have, on a three-month-old baby, a subdural hematoma on both sides of the brain without having injury on the neck or broken ribs. He testified that the subdural hematoma and retinal hemorrhaging could be consistent with the baby's head shaking back and forth in a flopping motion in a violent manner, as well as with the baby being shaken and thrown into a basinet. The State asked Dr. Humilier what type of force would be necessary or would normally be seen with the type of injuries Anthony suffered. Dr. Humilier responded: " Usually with rapid shaking with impact."
[¶8] Dr. Humilier testified, to a reasonable degree of medical certainty, that the cause of Anthony's death was due to subdural hematoma and that the manner of death was homicide. He explained that subdural hematoma is bleeding around the surfaces of the brain and in the base of the skull, the most common cause of which is the tearing of the veins that go from the brain to the top of the skull. Other causes of subdural hematoma include any type of blunt trauma and certain types of natural disease--none of which were found in this case--or from the birthing process. Subdural hematomas can happen naturally or result from falls. A fall can also produce retinal hemorrhages and cerebral swelling, thereby mimicking what would be seen with SBS. He had no evidence that tearing of the connective veins was the cause of the subdural hematoma in this case. Dr. Humilier testified that subdural hematoma occurs with a blunt trauma that can occur to the head. He described blunt trauma as a soft or firm surface that is not sharp hitting something. He testified that in Anthony's case, " you have the brain bouncing back and forth between two hard surfaces, which is the back and front of the skull, and then finally hitting a surface. That is the blunt trauma that is caused to the brain in this individual."
[¶9] On cross-examination, defense counsel asked Dr. Humilier if something that is looked for in possible child abuse cases is fracture in the ribs or damage to the bones in the arms or damage to the vertebra. Defense counsel stated " the reason why is because the theory of the mechanism of shaken baby syndrome is that" sometimes people grab children by the rib cage and squeeze when they are shaking causing rib fractures, or they grab the child by the arm and not the rib cage, or the neck will go backwards and forwards, creating a whiplash effect. Dr. Humilier agreed those were correct statements by defense counsel and that he found no rib fractures at the autopsy and no evidence of damage
to Anthony's arms. Dr. Humilier later testified that injury on the ribs, neck, and spinal cord would not always occur from a baby being shaken so that its head was flopping back and forth. Dr. Humilier also did not find any evidence of child abuse or of shaken-baby-type injuries in the spine at all. There was no evidence in the spine that Anthony was ever shaken. Dr. Humilier did not find anything from his external examination to suggest child abuse.
[¶10] Dr. Humilier admitted on cross-examination that SBS is a diagnosis of at least some controversy in the medical community. Defense counsel asked Dr. Humilier if the theory of shaken baby is that it is an issue of acceleration and deceleration in the skull and Dr. Humilier agreed that it was. He agreed it would not be possible, ethically or legally, to quantify the acceleration and deceleration forces required to produce injury or to prove that those forces caused bridging veins to actually sever. For that reason, Dr. Humilier agreed that SBS is experimental theory rather than scientific fact.
[¶11] Dr. Humilier testified that the subdural hematoma in this case was not caused by cancer, a clotting disorder, infection, or by Anthony being born, and was not what one would expect to be seen from a normal fall. There was no evidence of natural causes. Dr. Humilier later testified that his diagnosis was not SBS, but that the injuries he observed were consistent with Anthony being shaken so that his head was flopping back and forth. He made that diagnosis based on the existence of subdural hematomas on both sides of Anthony's brain.
[¶12] The State also called Dr. Emalee Flaherty as an expert witness in pediatrics, pediatric child abuse, and as a medical doctor, without objection. Dr. Flaherty is on the Cook County death review team. That team is an interdisciplinary team of members of the medical and law enforcement communities, as well as members from community child organizations and the Illinois Department of Children and Family Services, which reviews deaths of children that are suspicious. She is also the medical director of the protective service team, which evaluates any child where anyone has a suspicion of child abuse. Dr. Flaherty first saw Anthony in the pediatric intensive care unit at Children's Memorial Hospital (Children's). Dr. Flaherty testified that " there were multiple head CT's and MRI's done on this child which I referred to and used to form my opinion." She also relied on a report by an ophthalmologist in forming her opinion. Based on examinations at Children's, Dr. Flaherty learned that Anthony had extensive retinal hemorrhages in both eyes and subdural hematomas on both sides of his brain and over all surfaces of his brain. Anthony had both acute--meaning less than a week old--and subacute--meaning over one week but less than four weeks old--subdural hematomas over the whole brain. A full skeletal survey revealed no skull fracture. Anthony also had subdural hematomas in the whole area of his lower back.
[¶13] Dr. Flaherty stated that " these injuries were caused by some kind of severe acceleration and deceleration force. Some rotational forces. It would take those kinds of forces to cause the subdurals he had, extensive subdurals he had, caused the retinal hemorrhages he had, the really extensive retinal hemorrhages he had." When asked if Anthony's injuries would be consistent with someone shaking him in a violent manner and throwing him into a bassinet, Dr. Flaherty responded that " shaking and then the throwing against some surface, all of that are acceleration and ...