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People v. Klein

Court of Appeals of Illinois, Third District

June 19, 2015

KELLY KLEIN, Defendant-Appellant

Motion to Publish granted September 28, 2015.

Modified Opinion upon denial of rehearing September 28, 2015.

Page 721

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 08-CF-568. Honorable Daniel J. Rozak and Honorable Richard Schoenstedt, Judges Presiding.

Michael J. Pelletier and Kerry J. Bryson (argued), both of State Appellate Defender's Office, of Ottawa, for appellant.

James Glasgow, State's Attorney, of Joliet (Colleen M. Griffin (argued), Assistant State's Attorney, of counsel), for the People.

Carter and Lytton, Justices concurred in the judgment and opinion.


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[¶1] On August 29, 2008, during his first week at defendant's in-home daycare, seven

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month old O.D. suffered a brain injury while defendant was providing day care for the infant. O.D.'s injury required him to be airlifted to the Peoria Children's Hospital in Peoria, Illinois where he remained hospitalized for several days. Medical experts at the Peoria Children's Hospital of Illinois at St. Francis Medical Center in Peoria (Peoria Children's Hospital) concluded that O.D.'s injuries were non-accidental and resulted from a significant amount of force. Defendant, the only adult providing for O.D.'s care after his mother left him at daycare, claimed O.D. caused his own injuries on August 29, 2008. The State's treating medical experts all testified defendant's explanation was not consistent with O.D. injuries.

[¶2] After the trial judge found defendant guilty of aggravated battery of a child, defendant filed two separate motions for substitution of judge for cause which were assigned to another judge for consideration. The new judge dismissed both motions for substitution due to the insufficiency of the allegations claiming the trial judge was prejudiced against defendant. The matter was then returned to the trial judge for purposes of posttrial motions and sentencing.

[¶3] The trial judge denied defendant's posttrial motion for new trial and sentenced defendant to serve six years' incarceration. Defendant filed a timely notice of appeal challenging various evidentiary rulings by the trial judge and contesting the sufficiency of the evidence resulting in the finding of guilty. In addition, on appeal, defendant challenges the ruling dismissing defendant's motions for substitution of the trial judge for cause. We affirm.


[¶5] On May 8, 2008, the State charged defendant with aggravated battery of a child, a Class X felony. The indictment alleged on or about August 29, 2007, " defendant, a person over the age of 18 years, knowingly and without legal justification caused great bodily harm to O.D., a minor, a child under the age of 13 years, in that she caused injury to the brain of O.D., by the use of force." On July 19, 2010, defendant waived her right to a jury trial and the case proceeded to a bench trial.[1]

[¶6] I. The Bench Trial Evidence

[¶7] The State presented several of O.D.'s family members as witnesses during the bench trial including: Kim Basham, O.D.'s mother; David D., O.D.'s father; Gary and Lisa Basham, O.D.'s maternal grandparents; and Christina and Jerome Sukley, O.D.'s maternal aunt and uncle. These witnesses testified to the following facts. O.D. was born January 23, 2007, without any health problems. Kim and David lived together for the first six months after O.D.'s birth. Dr. Daniel Jurak, O.D.'s doctor, saw O.D. regularly for wellness checkups.

[¶8] On August 13, 2007, O.D. was seven months old and learning how to sit up while propped up with pillows, but was not ambulatory and could not crawl, walk, or stand up without assistance. On that date, Kim began new employment and O.D. began attending daycare with defendant, a daycare provider licensed by the Department of Children and Family Services (DCFS).

[¶9] The evening of the first day of daycare, Kim noticed a bump and bruise on

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the back of O.D.'s head. The next day, defendant told Kim this bump resulted when O.D. fell backwards on the tile floor while seated on the floor.

[¶10] On Monday, August 27, 2007, David had overnight visitation with O.D and took O.D. to daycare the next morning. Kim picked O.D. up from daycare on August 28, 2007, and noticed a scratch near O.D.'s diaper that evening.

[¶11] On August 29, 2007, Kim took O.D. to daycare in the morning. At that time, defendant's daycare clients included: 7-month-old O.D., a second infant named Natalie, defendant's two-year-old son, and another two-year-old named Connor. Later in the day, defendant telephoned Kim at work around 2:00 p.m. and told Kim that O.D. " scooted" himself from the carpeted family room to the kitchen and bumped his head on the tile floor. Kim telephoned defendant a second time 45 minutes later and defendant told her O.D. had a " pretty decent goose egg on his head." During the second call, defendant told Kim that O.D. " was crying so hard he couldn't breathe when it happened." Defendant also asked Kim if it was normal for O.D. to " be sitting up sleeping in his high chair for about three hours?"

[¶12] Due to these telephone calls from defendant, Kim left work early to pick O.D. up from daycare. When she arrived at defendant's home, Kim immediately observed a " really big bump on his head" near the right forehead area, along with a mark that looked like " road rash" or a rug burn near his nose, mouth and chin area. Kim said O.D. appeared to be very tired and was unable to keep his eyes open.

[¶13] Shortly after picking O.D. up from day care on August 29, 2007, Kim and her mother, Lisa, took O.D. to the emergency room (ER) at the Morris Hospital. Dr. Benjamin Johnston attended to O.D. at the ER. Dr. Johnston informed the family that O.D. had a brain injury and needed to be airlifted to Peoria Children's Hospital. O.D. remained at Peoria Children's Hospital for a total of seven days.

[¶14] Gary, O.D.'s grandfather, testified that defendant called the Basham's house after Kim and Lisa left for the hospital on August 29, 2007. When Gary reported to defendant that Kim took O.D. to the emergency room, defendant responded by stating " she was sorry about what happened to [O.D.]." Defendant called Gary a second time that evening requesting information regarding the " times and whereabouts for Kimberly" because defendant wanted to " keep a record for herself as to what had happened."

[¶15] The family members testified they observed that O.D. appeared pale and limp when Kim arrived home from daycare on August 29, 2007. During their testimony, the family members reviewed photographs of the injuries found on O.D.'s body by hospital employees on August 29, 2007, which depicted: a " goose egg" bump on O.D.'s right forehead, a separate injury near O.D.'s hairline, red dots near a scratch above O.D.'s right eye, rug burn marks on O.D.'s mouth and lip area, bite or scratch marks on O.D.'s stomach near his naval, and bruises on O.D.'s leg. The witnesses testified they did not observe any of those injuries on O.D.'s body prior to him attending daycare on the morning of August 29, 2007.

[¶16] Officer Todd Lyons of the Wilmington Police Department investigated the case involving the injuries to O.D. and questioned defendant on September 5, 2007. Defendant did not make any statements to Officer Lyons, but gave him a copy of a three-page, written " Accident Report Statement" defendant said she prepared for DCFS on August 30, 2007. In this written accident report, defendant

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stated, at 2:45 p.m. on August 29, 2007, O.D. was " @ the edge of the carpet trying to get a toy from what I gather, and reached forward and clunked his head on the tile part of our flooring." Defendant's written accident report provided that defendant " rushed to get [O.D.] and get a cold compress on his head," O.D. stopped crying around 3:15 p.m., and defendant then called Kim. Defendant said O.D. seemed fine to her.

[¶17] Eileen Strejc testified she went to defendant's house to pick up her granddaughter, Natalie, from daycare on August 29, 2007, around 3:45 p.m. Defendant's husband arrived home from work at the same time and they entered the house together. Strejc observed O.D. at that time and O.D. looked like he had been crying. She also observed O.D. had a visible bump on his forehead. Defendant told Strejc that O.D. was on " all fours" and bouncing back and forth and then fell forward and hit his head on the tile floor.

[¶18] Dr. Terry Voirin, an expert ophthalmologist, testified he examined O.D. at the Peoria Children's Hospital on September 2, 2007. Dr. Voirin observed several abnormal circular retinal hemorrhages in the back of O.D.'s left eye and one abnormal hemorrhage just below the optic nerve in the back of the right eye. Dr. Voirin explained retinal hemorrhages can be caused from pressure building inside of the skull on the brain. Dr. Voirin diagnosed the cause of O.D.'s retinal hemorrhages as " non-accidental trauma." Dr. Voirin opined, based on a reasonable degree of medical certainty, O.D.'s injuries did not " come from him hitting his head reaching for a toy."

[¶19] Dr. Benjamin Johnston worked in the ER at Morris Hospital on August 29, 2007, and examined O.D. that evening. Dr. Johnston observed a contusion on O.D.'s right forehead, a few other abrasions and contusions, and that O.D. was pale and not " moving particularly well." Dr. Johnston ordered a CT scan of O.D.'s head, chest and abdomen and determined the scan of O.D.'s head showed an " acute subdural hematoma" caused by bleeding of the veins between the dura and the skull. Dr. Johnston stated it is more difficult for a young child to get a subdural hematoma than it is for an adult because a child's brain is " right up against the skull." According to the doctor, a subdural hematoma usually occurs when a young child is " dropped, thrown, ejected from a car, restrained in a high speed motor vehicle accident, [or] some sort of rapid acceleration-deceleration blunt traumatic injury."

[¶20] Dr. Johnston opined that O.D. could not have inflicted the subdural hematoma on himself and concluded the babysitter's explanation of O.D. falling forward while reaching for a toy was not consistent with the child's injuries. Dr. Johnston ordered O.D. to be airlifted to a neurosurgeon at Peoria Children's Hospital and O.D.'s case was reported to DCFS for further investigation.

[¶21] Dr. Kay Saving testified she was board-certified in pediatric hematology, pediatric oncology, and was one of approximately 200 physicians certified in child abuse pediatrics in the United States. Dr. Saving was also the medical director of the Pediatric Resource Center, a program where " we see children for evaluation of possible abuse and neglect, so that would be physical abuse, sexual abuse, and other kinds of abuse." Peoria Children's Hospital asked Dr. Saving to do a consultation for the possibility of abuse to O.D.

[¶22] Dr. Saving examined O.D. on August 30, 2007, and he appeared to be a well-nourished child, but showed signs of neurological problems. Dr. Saving's external exam of O.D. showed several indications of trauma occurring on different

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planes of O.D.'s body including: a petechial bruise on his right forehead, a bruise and abrasion on his upper lip, a bruise and linear scratch on the right side of his head by the hairline, a semicircular scratch over his right eye, a small abraded bruise on his stomach to the left of his belly button, a couple of linear bruises under his belly button, a bruise on his upper inner left thigh, and a bruise on his left knee. Dr. Saving said O.D.'s CT scan and MRI revealed a large subdural hematoma in the left side of the child's brain opposite the bruise that was previously described as a goose egg on his right forehead. According to Dr. Saving, if there was a significant enough force at the point of O.D.'s " goose egg," the brain could bounce against the other side of the skull resulting in O.D.'s subdural hematoma. Dr. Saving explained, when a child suffers a significant blunt-force impact to the head involving an acceleration/deceleration movement, this impact can result in retinal hemorrhaging consistent with the ophthalmologist's findings. Dr. Saving testified multiple bruises on multiple planes of the body on an infant who was non-ambulatory was " very, very unusual," and O.D. could not have inflicted these injuries on himself. Dr. Saving concluded this " constellation of findings together is compatible with abusive head trauma or intentional traumatic brain injury." When a significant impact occurs, swelling usually occurs underneath that location within minutes to hours of the injury. Dr. Saving opined, based on a reasonable degree of medical certainty, O.D.'s injuries were caused after he was dropped off at daycare but before O.D.'s mother picked the infant up from daycare on August 29, 2007.

[¶23] Dr. Daniel Jurak testified he was a solo family practitioner who had been O.D.'s doctor since his birth. Dr. Jurak said he had seen O.D. six times between his birth and August 29, 2007, and O.D. was healthy and developing well. On August 22, 2007, Dr. Jurak saw O.D. as a patient for a sore throat, and O.D. appeared to be a normal, healthy, growing infant who was developing normally with no neurologic or developmental delay concerns. The State then rested its case.

[¶24] After denying the defense's motion for directed verdict, the defense began its case-in-chief. The defense called Dr. John Plunkett, a certified medical pathologist, as an expert witness. Dr. Plunkett stated he previously testified in court over 200 times for both the prosecution and defense, however, since 2004 Dr. Plunkett testified exclusively for the defense. In the case at bar, Dr. Plunkett said he relied solely on O.D.'s written medical records and notes to form his opinion and did not consult with any treating doctors, family members, or examine O.D. himself. Dr. Plunkett determined O.D. had a small, subdural hematoma on the left front part of the brain that was caused by an impact injury, and he accepted and relied on defendant's explanation as to how O.D.'s injury occurred on August 29, 2007. Dr. Plunkett testified that he reviewed O.D.'s medical records and MRI results from Peoria Children's Hospital and determined O.D. had extra-axial fluid on his brain at the time the MRI was performed. In Dr. Plunkett's opinion, O.D. had a pre-existing medical condition that involved an increased amount of extra-axial fluid in his brain, which can cause a significant risk of subdural bleeding even with minor trauma to the head. According to Dr. Plunkett, defendant's account of O.D.'s bump on his head could have resulted in O.D.'s subdural hematoma with this pre-existing extra-axial fluid in the brain condition.

[¶25] Dr. Plunkett agreed the photograph of O.D.'s hairline injury and the injuries on other planes of O.D.'s body would not have resulted from the single impact described

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by defendant. Dr. Plunkett also agreed that it would be unusual for an infant who is immobile to have these bruises, although Dr. Plunkett thought O.D. was able to crawl when this injury occurred.

[¶26] Joseph Klein, defendant's husband testified he arrived home from on August 29, 2007, and at the same time Eileen Strejc arrived at the house around 3:30 p.m. that day. Joseph did ...

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