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People v. Pollard

Court of Appeals of Illinois, Third District

June 2, 2015

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ASTRIA POLLARD, Defendant-Appellant

As Corrected.

Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. Circuit No. 11-CF-870. The Honorable Stephen Kouri, Judge, presiding.

Jay Wiegman (argued), of State Appellate Defender's Office, of Ottawa, for appellant.

Jerry Brady, State's Attorney, of Peoria (Judith Z. Kelly (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE CARTER delivered the judgment of the court, with opinion. Justice Schmidt concurred in the judgment and opinion. Presiding Justice McDade dissented, with opinion.

OPINION

CARTER, J.

Page 976

[¶1] After a bench trial, defendant, Astria Pollard, was found guilty of first degree murder (720 ILCS 5/9-1(a)(2) (West 2010)), involuntary manslaughter (720 ILCS 5/9-3(a) (West 2010)), and endangering the life or health of a child (720 ILCS 5/12-21.6(a) (West 2010)) relating to the death of her two-month-old son. Defendant was sentenced on the first degree murder charge to 29 years in prison. Defendant appeals the first degree murder conviction, arguing that she was not proven guilty beyond a reasonable doubt because the State failed to prove that she knew that 2 her conduct created a strong probability of death or great bodily harm to her child. We affirm the trial court's judgment.

[¶2] FACTS

[¶3] On September 13, 2011, defendant was charged with two counts of first degree murder and one count of endangering the life and health of a child in connection with the death of her two-month-old son, J.P. Count I of the indictment alleged that defendant, without lawful justification and while under a duty to provide care for J.P., committed first degree murder in that she knowingly withheld adequate nutrition and hydration from J.P., knowing those acts would cause great bodily harm or death to J.P. and thereby causing the death of J.P. Count II of the indictment alleged that defendant, without lawful justification and while under a duty to provide care for and monitor the health of J.P., committed first degree murder in that she knowingly withheld adequate nutrition and hydration from J.P. and ignored his heart and apnea monitor knowing those acts would cause great bodily harm or death to J.P. and thereby causing the death of J.P. Count III of the indictment alleged that defendant committed the offense of endangering the life and health of a child in that she willfully caused or permitted the life or health of J.P. to be endangered by failing to provide adequate nutrition and hydration to J.P. and by ignoring his heart and apnea monitor functions and that those violations were a proximate cause of the death of J.P.

[¶4] Defendant's case proceeded to a bench trial in September 2012. The evidence presented at trial established that at the age of 15, defendant gave birth to S.P., the first of her three children. S.P. was cared for by defendant's mother. Shortly after the birth of S.P., defendant dropped out of high school in her freshman year. At the age of 16, defendant gave birth to her second child, L.J. The father of L.J., Landrean J., was not the father of S.P. L.J. lived with, and was cared for by, Leslie J., Landrean's mother. At the time, defendant lived with her mother, who was still caring for S.P.

[¶5] On July 6, 2010, the then-18-year-old defendant gave birth to her third child,

Page 977

J.P., the infant who died in this case. J.P. was born prematurely at just under 30 weeks gestation and weighed only 2 1/2 to 3 pounds. According to defendant, she did not know that she was even pregnant at the time. Because of his fragile condition, J.P. remained in the hospital for about a month and was provided with around-the-clock medical care from the hospital staff. During that time period, defendant visited J.P. at the hospital on occasion but was not a daily visitor, even though she lived only a few miles from the hospital.

[¶6] On August 7, 2010, J.P. was healthy enough to be discharged from the hospital and to defendant's care. J.P. weighed a little over four pounds, was growing appropriately, and was feeding from a bottle. Because of defendant's lack of frequent visits to the hospital, the hospital staff members were concerned about defendant's ability to care for J.P. To assist defendant in doing so and to alleviate some of those concerns, the hospital provided to defendant at no cost to her: (1) a heart and apnea monitor; (2) a car seat/carrier (carrier); (3) baby formula; (4) bottles; (5) diapers; (6) a prescription of caffeine, which would help stimulate J.P.'s breathing; (7) information on public aid sources for refilling the prescription; and (8) access to home health nurses who would regularly visit defendant to assist her with J.P. and to monitor J.P.'s condition. In addition, the hospital staff made sure that defendant knew how to feed J.P. a bottle, to add caffeine to the bottle, and to change J.P.'s diaper. The hospital staff members had defendant perform those tasks in their presence so that they could confirm that defendant was able to perform the tasks correctly.

[¶7] Defendant was also given numerous instructions to follow in caring for J.P. A training session was scheduled for defendant to be trained on the use of the heart and apnea monitor, but defendant failed to show up for that session. A second training session was scheduled, for which defendant arrived late. Defendant was told during the training session that the heart and apnea monitor was to be kept on J.P. at all times, except when he was being bathed, and that the monitor's alarm would sound if J.P. stopped breathing or if his heart rate was too high or too low (collectively described as an event). When the alarm sounded, lights on the monitor would light up to indicate the type of event that was occurring. The alarm on the monitor would continue going off until the event had ended, but the indicator light would remain lit until the monitor was reset. Defendant was told that if the alarm went off and she could not quickly resolve the problem with J.P., she was to immediately call 9-1-1. Defendant was also given a 24-hour hotline number to call if she had any questions or concerns about the functioning of the monitor.

[¶8] Additional instructions that defendant received pertained to the carrier and to feedings. Defendant was told not to leave J.P. in the carrier for an extended period of time beyond 90 minutes and to never place J.P. in the carrier facedown. Defendant was also instructed that J.P. had to be fed (given a bottle of formula) every three hours around the clock and that she was to wake J.P. up to be fed if he was sleeping at a time when a feeding was due. Defendant was told to put a certain amount of the caffeine into J.P.'s bottle each morning or in the afternoon if she forgot.

[¶9] Upon leaving the hospital with J.P., defendant resided at Leslie's residence with Leslie, Landrean, Shirley J. (Leslie's mother), and L.J. (defendant and Landrean's daughter). Defendant's other child, S.J., continued to reside with defendant's mother. While living at Leslie's residence, defendant slept in an upstairs bedroom on

Page 978

a mattress on the floor with Landrean, and, at times, with L.J. Despite the instructions she had been given, defendant had J.P. sleep next to them on the floor in his carrier.

[¶10] During the first three weeks of defendant and J.P.'s stay at Leslie's house, Leslie provided a substantial amount of J.P.'s care and did many of the feedings. J.P. remained healthy and continued to grow during that time period. At a doctor appointment on August 25, 2010, J.P. was examined from head to toe and was considered to be healthy and doing well. His weight had climbed to 4.62 pounds. After that three-week period, however, Leslie decided to step back and to let defendant take on a larger role in caring for J.P.

[¶11] After defendant started being the primary caregiver for J.P., J.P.'s health began to deteriorate. Defendant had to be prompted repeatedly by other members of the household to feed and check on J.P., although she did make efforts to do so after the prompting had occurred. When the prescription for caffeine ran out, defendant did not have the prescription refilled because she allegedly did not have the money. Defendant's only source of income at the time was $200 per month that her mother would give her from a public assistance account, and she did not attempt to use the public aid sources that the hospital had given her to have the prescription refilled. At times, J.P. would not feed well for defendant. Leslie, however, still tried to feed J.P. when she had time and apparently had no problem doing so. On one occasion a few days before J.P.'s death at about 10 or 10:30 a.m., Leslie went into the bedroom after she heard J.P. making a muffled crying sound and found J.P. facedown in the carrier struggling for breath. J.P. had his heart and apnea monitor on his body, but the monitor itself was turned off. Leslie woke up defendant, who was sleeping in the bed.

[¶12] On September 20, 2010, at 4:49 a.m., the heart and apnea monitor sounded a series of alarms because J.P.'s heart rate was over 230 beats per minute. The alarm sounded 7 times in a 50-minute period before being shut off at 5:39 a.m. The monitor was turned back on about two hours later. During that day, Leslie fed J.P. at least one of his bottles. According to Leslie, J.P. ...


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