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.
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.
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
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 ...