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People v. Prete

Court of Appeals of Illinois, Third District

November 8, 2017

JENNIFER DEL PRETE, Defendant-Appellee.

         Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, No. 03-CF-199 Honorable Carla A. Policandriotes, Judge, Presiding.

          PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Lytton and McDade concurred in the judgment and opinion.



         ¶ 1 The State appeals the circuit court's order granting the successive postconviction petition filed by the defendant, Jennifer Del Prete. Specifically, the State argues that the defendant failed to establish a Brady violation based on the State's failure to disclose a letter written by the lead detective in her case because there was no reasonable probability that the result of the trial would have been different had the letter been disclosed.

         ¶ 2 FACTS

         ¶ 3 In 2004, the defendant was charged with first degree murder (720 ILCS 5/9-1(a)(2) (West 2002)) in that she shook I.Z., a 3½-month-old infant, knowing that such acts created a strong probability of death or great bodily harm to I.Z. thereby causing the death of I.Z. The defendant was a day-care provider, and the charges resulted from an incident at the day care.

         ¶ 4 A bench trial was held. Barbara Z., I.Z.'s mother, testified that I.Z. was born on September 6, 2002. On December 27, 2002, Barbara dropped I.Z. off at day care. I.Z. was developmentally normal when Barbara dropped her off. Barbara did not harm I.Z. before dropping her off at day care, and she did not see her husband harm I.Z. The next time Barbara saw I.Z. was later that day at Provena St. Joseph Medical Center (Provena). I.Z. was transferred to the University of Illinois at Chicago hospital (UIC). I.Z. remained there for three weeks. I.Z. was then transferred to Children's Memorial Hospital. I.Z. remained there for several weeks. I.Z. returned home on March 23, 2003. Barbara received help caring for I.Z. from nurses who came to her home. On the morning of November 8, 2003, the nurse who was caring for I.Z. called for Barbara. Barbara saw that I.Z.'s lips were blue, and she called 911. I.Z. died the next day.

         ¶ 5 Detective Kenneth Kroll testified that he investigated I.Z.'s case. He interviewed the defendant on December 29, 2002. The defendant told Kroll that she was the only one working on December 27, 2002, because the other day-care provider was out of town. The defendant said that after Barbara dropped I.Z. off that day, I.Z. took a bottle between 8 and 9 a.m. I.Z. then slept in a swing until around noon. At that time, I.Z. had "an extremely dirty diaper." The defendant changed I.Z.'s diaper and set her down on the couch. The defendant stepped away for a moment to prepare a bottle for I.Z. When the defendant returned to the couch, I.Z. "was making a snoring, labored breathing sound" and her body was "totally limp." The defendant picked I.Z. up, and her head flopped forward. The defendant gave I.Z. a "very slight shake" while saying her name several times. The defendant tried to feed I.Z., but the milk ran out of her mouth down the side of her face. The defendant then positioned I.Z. face down and gave her three to five pats on the back in an attempt to dislodge anything that might have been choking I.Z. The defendant felt panicked, and she called 911. The defendant said that I.Z. did not fall or get knocked over that day. The defendant said that I.Z.'s head moved more violently when she was patting I.Z. on the back than when she gave I.Z. the slight shake.

         ¶ 6 Kroll took a break during the interrogation. When he returned, he told the defendant that her statements were not consistent with the medical evidence. Kroll said that I.Z. suffered from shaken baby syndrome (SBS) and subdural hematomas. Kroll told the defendant that he believed she was involved in I.Z.'s injuries. The defendant began to cry. She said she could not remember exactly what happened and that it was a very stressful, panicked situation. The defendant told Kroll "she could have shaken [I.Z.] a little harder than she thought." The defendant maintained that she did not shake I.Z. violently, and she did not intentionally hurt I.Z. Kroll acknowledged that he documented in his report that the defendant never actually confessed to shaking I.Z.

         ¶ 7 Dr. Adrian Nica, a physician at Provena, testified that he treated I.Z. in the emergency room on December 27, 2002. Nica ordered a CAT scan of I.Z.'s brain, which showed that I.Z. had an "acute and chronic changes secondary to bleeds in different levels." Nica said that the chronic bleeding could have been days or a week old. Nica testified that because I.Z. had not been involved in a car accident, "you have to assume that it was a child abuse or baby shaking." The defendant objected. The circuit court allowed Nica's testimony that he believed the bleeding was caused by child abuse or baby shaking for the limited purpose of explaining his course of treatment, not for "the truth of the matter asserted as it relates to expert diagnosis."

         ¶ 8 Dr. Howard Hast was certified as an expert in the field of pediatric critical care medicine. Hast testified that he treated I.Z. from December 30, 2002, through January 16, 2003. A retinal scan showed that there was blood in I.Z.'s retinas, in front of the retinas, and in the vitreous. I.Z. also had bifrontal subdural hematomas. Hast performed several tests to attempt to determine a cause of the subdural hematomas. He found no bleeding tendency or metabolic diseases that would explain the cause of the bleeding. Hast opined that the most likely cause of the bilateral subdural hematomas was that I.Z. "was shaken or had some other accelerating/decelerating injury occur such as being dropped or thrown or something like that."

         ¶ 9 Dr. Jeff Harkey testified that he was employed as a forensic pathologist by the Du Page County coroner's office. The court certified Harkey as an expert in the field of forensic pathology. Harkey testified that he conducted I.Z.'s autopsy on November 10, 2003. Harkey took x-rays of I.Z. The x-rays showed no evidence of trauma. Harkey also examined I.Z.'s brain. He did not observe any bleeding or acute trauma. Harkey reviewed some of I.Z.'s medical records, including a physician's report from Dr. Emalee Flaherty. Harkey determined that I.Z.'s cause of death was "multiple system organ failure due to anoxic-ischemic injuries *** that was due to abusive head trauma [(AHT)]." Harkey stated that an anoxic-ischemic injury occurred when there was not enough blood flow and oxygen to bodily tissue. Harkey testified that I.Z.'s AHT occurred 10 or 11 months prior to her death. Harkey opined: "I believe that the reason that [I.Z.] suffered the injury the day before she died was a direct result of the injury that she suffered the 10 to 11 months before." Harkey observed no evidence of old trauma during his autopsy, and his conclusion that I.Z. suffered AHT was due to Flaherty's report.

         ¶ 10 Flaherty testified that she had been a pediatrician at Children's Memorial Hospital for over 30 years. The court qualified Flaherty as an expert in the areas of pediatrics and child abuse. Flaherty testified that she reviewed I.Z.'s medical records from UIC. She also spoke with Hast, reviewed the police reports, reviewed the paramedic reports, interviewed I.Z.'s parents, and examined I.Z. Flaherty concluded that I.Z. "had suffered [AHT] or also known to many people as [SBS]." Flaherty stated: "[AHT] is a form of child abuse where a child suffers some kind of acceleration/deceleration injuries to the brain that cause some-or for example, shaking, and cause the unconstillation [sic] of injuries." Flaherty stated that AHT could be caused by "violent sustained shaking and sometimes impact" to infants or young children. Flaherty said that AHT was most commonly caused by shaking.

         ¶ 11 Flaherty showed a PowerPoint presentation to explain AHT. Flaherty showed a slide that contained the "spectrum of injuries you can see in [AHT] or [SBS]." Of those symptoms, I.Z. had subdural hemorrhages, subarachnoid hemorrhages, diffusing injury, and parenchymal lacerations and contusions. Flaherty stated that I.Z. suffered from encephalomacia, or dead brain tissue, as a result of her injuries. Flaherty stated that acceleration/deceleration forces like violent shaking can also cause retinal hemorrhages, which I.Z. had. Flaherty opined that "when you see hemorrhages to the ora serrata as in [I.Z.'s] case, those kinds of extensive hemorrhages are only caused by these acceleration/deceleration forces or seen in [SBS]."

         ¶ 12 Flaherty further opined that "extensive subdural hematomas like [I.Z.] had over extensive areas of the head, those are only caused by acceleration and deceleration forces. For example, shaking would be an example." The prosecutor asked Flaherty what level of force would be needed for violent shaking to cause these injuries. Flaherty responded: "Forces would be so severe that if anyone witnessed that shaking occurring or someone shaking a child like that, they would know that that child would suffer severe injury." The prosecutor asked Flaherty if she could offer a time frame as to when the abuse to I.Z. occurred. Flaherty replied:

"Oh, yes. On the day of the 27th sometime after-[I.Z.] was described eating normally in the morning, and sometime after she awoke and was reported to be smiling but crabby. About-awoke about 1 o'clock and reported to be smiling and crabby again which tells us she had not suffered severe brain injury at that point, and just before she lost consciousness and became unresponsive."

         ¶ 13 Flaherty stated that the effects of the abuse would have been immediate. Flaherty opined that I.Z.'s injuries could not have been caused by someone performing cardiopulmonary resuscitation (CPR) poorly on her, from a fall, or by a young child. Flaherty stated that "[i]t would take someone of adult strength shaking this child violently to cause these kinds of injuries."

         ¶ 14 Flaherty acknowledged that I.Z. did not have any bruises. Flaherty stated that bruises on the arms and trunk are not part of the definition of SBS. Flaherty said that she would typically look for any bruises while conducting an SBS analysis, but it was "pretty uncommon" to find bruising in a case of SBS. Flaherty did not know why.

         ¶ 15 The State rested.

         ¶ 16 The defendant called Dr. Wayne Tucker. The court qualified Tucker as an expert in pathology and pediatrics over the State's objection. Tucker testified that he reviewed medical records, Flaherty's report, police reports, paramedics' reports, an autopsy report, and autopsy pictures. Based on his review of these documents, Tucker opined that I.Z.'s injuries occurred approximately 18 to 24 hours before she collapsed at the day care. Tucker reasoned that I.Z.'s CAT scan "reflected that there was an acute situation and there was a chronicity to the situation of the frontal hematomas, subdural." Tucker stated that "chronic" meant that it had been there for "at least 7 to 10 days." Tucker opined that "[a]lmost anything that will cause an increase in intracranial pressure" could cause a chronic subdural hematoma to rebleed. Tucker gave the examples of coughing, sneezing, holding breath, movement, turning the head quickly, or falling.

         ¶ 17 Tucker stated that the fact that I.Z. took a bottle the morning she collapsed "does not rule out any problem at that time because the sucking reflex of an infant overcomes any damage that might-a child may have cerebral or physically." Tucker noted that I.Z.'s history showed that she had problems taking bottles generally.

         ¶ 18 Tucker stated that bruising was part of the definition of SBS. Tucker explained that "to do this even on a three month old or a one month old or any age group *** whoever is doing it has to pick up into the arms, say hold arms or the shoulders and grab and hold on tightly to give the shaking." Tucker stated that he had never seen a shaken baby without bruising. Tucker had previously testified in three SBS cases.

         ¶ 19 The defense rested.

         ¶ 20 During closing argument, the State argued:

"Dr. Flaherty comes in as a fully qualified expert in the field of pediatrics and child abuse medicine. She comes in and she explains and teaches this Court what [AHT] is, a rapid acceleration and deceleration of the head which causes very distinct and specific injuries. These injuries are telltale signs and solely towards what is commonly referred to as [SBS]."

         The State further argued:

"This all happens, Judge, on [the defendant's] watch of [I.Z.] Dr. Flaherty testified very clearly, the injuries are immediate. This is not something that happens hours or days before. This is something that happens when you cause this type of injury this severe. The effect is immediate. In the morning [I.Z.] is fine. She is able to eat. She is able to take a bottle between 8 and 9 o'clock from [the defendant]. That means that these core functions in the blue area as she described have not been injured yet. It is to this point, Judge, where [I.Z.] is fine.
*** The abrupt change signifies when this injury occurred, and that is between 12:00 and 1:30 when the 911 call was made. That puts it squarely on [the defendant's] hands.
Dr. Flaherty testified five years old and under, they can't do this. A fall from a swing can't do this. An accident can't do this. This is a violent shaking. A violent back and forth acceleration/deceleration of ...

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