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People v. Johnson

Court of Appeals of Illinois, Fifth District

September 7, 2016

BRANDON JOHNSON, Defendant-Appellant.

         Appeal from the Circuit Court of Madison County, No. 07-CF-211; the Hon. James Hackett, Judge, presiding.


          Michael J. Pelletier, Jacqueline L. Bullard, and Daaron V. Kimmel, all of State Appellate Defender's Office, of Springfield, for appellant.

          Thomas D. Gibbons, State's Attorney, of Edwardsville (Patrick Delfino, David J. Robinson, and Sharon Shanahan, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          JUSTICE CATES delivered the judgment of the court, with opinion. Presiding Justice Schwarm and Justice Moore concurred in the judgment and opinion.



         ¶ 1 The defendant, Brandon Johnson, appeals the order of the circuit court of Madison County that denied his petition for postconviction relief. For the following reasons, we affirm.

         ¶ 2 FACTS

         ¶ 3 The complicated history of this case requires that we recite the facts in extended detail. In April 2009, the defendant was convicted, following a jury trial, of aggravated battery of a child. The conviction resulted from events that allegedly occurred on or about January 22, 2007. The crux of the State's theory was that the defendant had severely physically abused his three-month-old son, T.M., which resulted in a constellation of injuries, causing T.M. great bodily harm. A few days prior to trial, the State amended the charge in the indictment, adding more limiting language, which then alleged that defendant "shook and beat T.M. causing a skull fracture and a broken arm, in violation of 720 ILCS 5/12-4.3."

         ¶ 4 The record reveals that Dr. Spivey was on call the afternoon that T.M. was brought to Children's Hospital in St. Louis, Missouri. Dr. Spivey is a physician with special training in child protection, which included as a part of that training "putting everything together on what might have caused injuries." Dr. Spivey testified that on the day T.M. arrived at Children's Hospital, she interviewed the defendant, who indicated that there were "no falls, no accidents." At the State's request, Dr. Spivey authored an affidavit that identified six injuries suffered by T.M. Those injuries were identified as (1) "a right parietal comminuted skull fracture with associated soft tissue swelling, " which means a "break in the bone on the side of the head that's complex, meaning it took a lot of force"; (2) bilateral acute subdural hemorrhage(s), which means "bleeding around the brain"; (3) chronic bilateral subdural hematoma(s), which means "older brain bleeds"; (4) a "left distal radial and ulnar buckle fracture, " which means a fracture of the two bones in T.M.'s forearm; (5) "global hypoxia ischemic injury, " which means a "widespread brain injury" that is an "injury to the brain matter itself"; and (6) "retinal hemorrhages, " which refers to bleeding at the back of the eyes, is frequently associated with acceleration-deceleration injuries to the brain, and is used as part of the diagnosis for "shaken baby syndrome." The State alleged that defendant caused these severe injuries to T.M.

         ¶ 5 In his defense, the defendant claimed that while holding T.M., he tripped over the baby's "bouncy chair" and fell in such a manner that T.M.'s head struck a coffee table. The defendant further explained that when he fell, he landed on top of T.M. During trial, the State posed a hypothetical to Dr. Spivey as to whether T.M.'s injuries could have occurred as a result of the fall described by the defendant. Over objection by defense counsel, Dr. Spivey opined that "[o]ne fall with one impact would not have caused all these areas; all this injury in different areas of [T.M.'s] body." Dr. Spivey further testified that, to a reasonable degree of medical certainty, the injuries to T.M. were "inflicted injuries" and "[t]hey are nonaccidental injuries."

         ¶ 6 The State also presented testimony from Dr. Jeffrey Leonard, a pediatric neurosurgeon at Children's Hospital. Dr. Leonard was the admitting neurosurgeon for T.M. and was responsible for supervising his care while at Children's Hospital. Dr. Leonard was also responsible for reviewing all cases of traumatic brain injury that were admitted to the hospital. With the assistance of a computerized tomography (CT) scan shown to the jury, Dr. Leonard testified that T.M. had suffered a comminuted complex skull fracture that was depressed below the level of the skull. Dr. Leonard also explained the neuroanatomy of subdural hematomas and explained their significance in causing the brain damage suffered by T.M. As a part of his medical opinions regarding T.M.'s complex skull fracture and the existence of the subdural hematomas, Dr. Leonard testified that, in his experience, these types of injuries required a fall from a distance "of greater than 4 feet." Ultimately, Dr. Leonard opined, "In the constellation of [T.M.'s] injuries, I have never seen a simple fall produce this level of injury." Dr. Leonard rendered an opinion, to a reasonable degree of medical certainly, that "[T.M.] was the victim of nonaccidental trauma."

         ¶ 7 Counsel for the defendant did not present any of his own expert witnesses. Instead, he chose to cross-examine the State's witnesses with regard to both the State's theory of the case and the defendant's account that the injuries suffered by T.M. were accidental. More specifically, defense counsel questioned Dr. Spivey regarding her knowledge and expertise by asking her whether she was familiar with the New England Journal of Medicine and the American Journal of Forensic Medicine and Pathology. Defense counsel then used a medical article to cross-examine Dr. Spivey regarding the issue of "shaken baby syndrome, " asking whether she agreed with the statement that, "Objective evidence strongly suggests that we should abandon the term shaken infant syndrome and instead use an actual description of the injury mechanism, i.e., rotational deceleration. Admittedly we do not know the force required to cause the injury." The defendant's trial counsel also elicited testimony that Dr. Spivey had never been provided with the defendant's written statement, wherein he gave his version of what had occurred during the fall over the "bouncy" chair. Defense counsel indicated he had been through all of the medical records from Children's Hospital, and Dr. Spivey's name appeared on only two entries out of all the pages produced. In addition to the cross-examination tactics attacking Dr. Spivey's credibility, defense counsel also spent a considerable amount of time questioning Dr. Spivey about the biomechanical mechanism of "shaken baby syndrome" and the causes of subdural hematomas and hemorrhagic brain bleeds, including the multitude of causes for acceleration-deceleration injuries, retinal hemorrhages, and other forms of brain injuries. In essence, trial counsel attempted to invalidate Dr. Spivey's testimony and attack her credibility through the technique of cross-examination.

         ¶ 8 The defendant's trial counsel also cross-examined Dr. Leonard. Counsel posited the defendant's version of events as a hypothetical and asked whether such a scenario could cause the type of skull fracture suffered by T.M. Dr. Leonard agreed that such a fall could, indeed, result in such a fracture. When defense counsel began inquiring about the subdural hematomas, Dr. Leonard disagreed and indicated that the kind of brain movement suggested by the hypothetical did not produce the types of subdural hemorrhages diagnosed in T.M. Defense counsel continued his cross-examination with variations of the hypothetical facts that supported the defendant's version of what had occurred, all in an attempt to prove that the injuries were accidental.

         ¶ 9 In addition to the medical testimony, the State also presented the voluntary, written statement given to police by the defendant on January 23, 2007, the day after T.M. was taken to the hospital. In that statement, the defendant conceded that when he and T.M.'s mother had taken T.M. to the hospital the day before, the defendant had not informed any medical personnel about the alleged fall with T.M. In fact, the defendant had "denied dropping him or bumping into anything with him." At the conclusion of the State's case, the defendant's attorney made a motion for acquittal. He argued that the State had failed to prove that T.M.'s injuries were inflicted by the defendant and not the result of the fall as described by the defendant. The defendant's counsel also argued that the medical discrepancies regarding the nature of T.M.'s injuries that he elicited during his cross-examination of Dr. Spivey and Dr. Leonard proved that the State could not meet its burden of proof. The State responded that both physicians had testified that the injuries suffered by T.M. were "nonaccidental" and that the State's burden only required proof of great bodily harm. The court denied the defendant's motion.

         ¶ 10 The only individual called during the defendant's case was Sergeant Gunderson, who indicated that he took the defendant's written statement. He could not remember whether he gave that written statement to the hospital or any medical personnel. The defense rested without calling the defendant as a witness. Counsel for the defendant renewed his motion for ...

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