Court of Appeals of Illinois, First District, Third Division
Rehearing denied November 25, 2014.
Modified upon denial of rehearing December 3, 2014.
Appeal from the Circuit Court of Cook County, No. 08-CR-3880; the Hon. Mary Margaret Brosnahan, Judge, presiding.
The appellate court affirmed defendant's conviction and sentence for the first degree murder of his 18-month-old son, who suffered a severe head injury while in the care of defendant, since the trial court did not err in barring defendant's expert from offering testimony with respect to the force necessary to bring about the type of injuries suffered by the victim and the closing and rebuttal arguments of the prosecution did not prejudice the jury by improperly disparaging the character of defendant and his expert; however, the clerk of the circuit court was directed to correct the mittimus and defendant's fines and costs to reflect the correct amount of presentence custody credit and the proper fines and costs.
Michael J. Pelletier, Alan D. Goldberg, and Emily E. Filpi, 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 Marci Jacobs, Assistant State's Attorneys, of counsel), for the People.
JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Hyman and Mason concurred in the judgment and opinion.
[¶1] Defendant Jose Alvidrez was tried and found guilty by a jury of the first degree murder of his 18-month-old son, Joshua Alvidrez, who died as a result of a severe head injury suffered at home while under defendant's care. Defendant was sentenced to 25 years' imprisonment and now appeals, contending the trial court erred when it precluded his expert from testifying about the amount of force required to cause Joshua's brain injuries. Defendant also contends that the State engaged in prosecutorial misconduct during its closing and rebuttal arguments by disparaging his character and that of his expert, thereby prejudicing the jury. Lastly, defendant contends that he is entitled to additional days of presentence credit and that the trial court improperly levied various fines, fees and costs against him. We affirm.
[¶3] Defendant was charged with first degree murder after his son Joshua perished due to a severe head injury. Defendant maintained that the child fell off an adult bed from about a knee-high distance to the bedroom floor, but the State presented evidence demonstrating that the extent of bruising, brain damage and retinal trauma Joshua suffered would only be attributable to severe physical abuse and would not occur during the type of fall described by defendant. The State's case rested on circumstantial evidence that defendant shook and/or beat his child to death within a one-hour time span when no other individuals were present. That circumstantial evidence was coupled with the testimony of several treating physicians who opined that Joshua was the victim of severe abuse that could not have possibly occurred in a simple fall from a bed onto a carpeted hardwood floor.
[¶4] Summarized at some length, testimony at trial revealed the following. Benita Jorge was Joshua's mother and defendant's girlfriend. On January 10, 2008, as was her then-current routine, she left Joshua in defendant's care and went to work for the Cook County Youth Outreach Services, where she oversaw screening cases coming into the system through the child abuse hotline. Up until about October 2007, Joshua had a babysitter, but thereafter defendant and Corina Gonzalez (girlfriend of defendant's cousin) became his caretakers. Other than a small bruise on the innermost corner of Joshua's left eye, Joshua appeared a happy and healthy baby on January 10. On that date, Corina left for the library, leaving defendant alone in the apartment with Joshua for about an hour. According to defendant, it was at that time that he placed Joshua on an adult bed for a nap, propping him on pillows and covering him with a comforter. Defendant then went across the hall to shave for some 15 minutes. Although he did not hear anything, upon returning, he found Joshua on the floor, facedown with the blanket covering his lower legs, but his feet still on the bed. Believing Joshua was simply " knocked out," defendant patted his cheeks and called his name. Joshua was unresponsive, but breathing.
[¶5] Defendant testified that he then called Benita. Benita testified that defendant
reported he had " found Joshua on the floor" and " he's not waking up." Benita told defendant to splash water on Joshua because " it works in the movies." Defendant did so, taking him into the shower, where Joshua apparently had a bowel movement, something defendant claimed to have not noticed until days later when he again reviewed the scene. Joshua opened his eyes, moaned, and then started to cry, according to defendant. Benita subsequently heard Joshua say " mom" after some whimpers. At that point, she believed Joshua was not harmed. Defendant testified that Joshua " looked fine." Reading from the Mayo Clinic website, Benita nonetheless instructed defendant to prevent Joshua from falling asleep in the event he had a concussion. Defendant again placed Joshua on the bed, propping him up with pillows. Defendant testified Joshua at that time could point to his nose, chin, and eyes. Corina, who had been gone for about an hour, returned from the library and entered the bedroom to ask defendant to look over a resume. As defendant was doing so, Corina gave Joshua a sippy cup, from which he drank.
[¶6] Some 30 minutes later, Benita called to check on Joshua. Defendant testified that he went to retrieve the phone and on his return to the bedroom found Joshua with eyes rolled back in his head and stiff like a board. Defendant picked Joshua up from under his arms and shook him, repeatedly calling his name. Defendant denied severely shaking, throwing or shoving Joshua at that or any other time. Joshua then began to claw at his own face with one finger reaching under his eyelid and was grinding his teeth. Defendant testified that he held Joshua's arms to prevent the clawing. Defendant then took Joshua into the shower again, to no beneficial effect. At this time, Benita talked with her doctor, who instructed her to call 911. Benita called defendant back and told him to call 911, which he did.
[¶7] Joshua was unresponsive when the ambulance arrived minutes later. He was placed in a cervical collar, securing his head and neck and transported to Cook County Stroger Hospital (Stroger), where diagnostic testing revealed, among other traumas, an extensive subdural hematoma (bleeding from the brain under the dura, inside the skull) requiring a craniotomy to relieve intracranial pressure. Despite the best efforts of medical personnel, on January 18, 2008, Joshua was pronounced dead. The authorities and defendant then did a " walk-through" at the house, ...