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Burrell v. The Village of Sauk Village

Court of Appeals of Illinois, First District, Third Division

December 13, 2017

BARRY J. BURRELL, Plaintiff-Appellant,
THE VILLAGE OF SAUK VILLAGE and TIMOTHY HOLEVIS and ROBERT GROSSMAN, Police Officers for the Village of Sauk Village, Defendants-Appellees.

         Appeal from the Circuit Court of Cook County. No. 14 L 8700 The Honorable John Callahan Judge, presiding.

          JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Cobbs and Justices Howse concurred in the judgment and opinion.


          LAVIN, JUSTICE.

         ¶ 1 This appeal arises from the Cook County circuit court's order granting summary judgment in a malicious prosecution action to defendants Sauk Village and Sauk Village police Detectives Timothy Holevis and Robert Grossman. On appeal, plaintiff Barry J. Burrell contends that the trial court erroneously granted defendants' motion for summary judgment because defendants did not have probable cause to charge defendant with first degree murder. We affirm.

         ¶ 2 BACKGROUND

         ¶ 3 This case arises from the arrest and prosecution of plaintiff for the murder of his one-month-old niece Kailie. Plaintiff filed the underlying action on August 19, 2014, after a jury found him not guilty of first degree murder. The complaint alleged malicious prosecution and intentional infliction of emotional distress, claiming that defendants commenced the criminal proceedings without probable cause and with knowledge that plaintiff was innocent of the crime charged.

         ¶ 4 Several depositions were taken during discovery. Plaintiff testified that on August 22, 2006, he was the primary caregiver for his infant niece Kailie, as well as his other three nieces, two nephews, and son. Sharon McCary, plaintiff's mother, was working and did not return home until the evening, while Antoine Burrell, plaintiff's brother, left for work in the afternoon. Plaintiff recalled that he saw Kailie three times that day: in the morning when she was sleeping in her bassinet, in the afternoon lying on the bed with her two sisters Kenita and Kendra, and in the evening when Kendra brought Kailie to plaintiff exclaiming, "the baby is not breathing." Plaintiff patted Kailie on the back, and her "head rolled and her arm fell off of Kendra's shoulder." Plaintiff then told Kendra that Kailie was fine and to put her to sleep in her bassinet. The next morning plaintiff awoke to McCary screaming that something was wrong with Kailie, whom plaintiff observed to be stiff. After the paramedics arrived, a responding officer from the Sauk Village police department asked plaintiff a few questions about what happened to Kailie. Plaintiff stated that he "didn't know." Kendra allegedly told plaintiff that "the bed fell on the baby, " but plaintiff did not mention this fact to his family, the paramedics, or police officers.

         ¶ 5 The following day, Sauk Village police department officers transported plaintiff to the Chicago Heights police department to be interviewed by Detectives Holevis and Grossman. During the interview, Detective Grossman mentioned the possibility that Kendra killed Kailie, but plaintiff did not mention Kendra's admission about the bed falling on Kailie. Instead, plaintiff told the detectives that he was holding Kailie and passed out, which resulted in his shoulder landing on Kailie's chest. Plaintiff later admitted that this statement was false.[1] Plaintiff further testified that toward the end of the interview, Cook County Assistant State's Attorney (ASA) Nick D'Angelo questioned plaintiff and accused him of torturing Kailie. Plaintiff was then transferred and held in county jail until his trial date.

         ¶ 6 Kendra testified that on the day of the incident she tripped on some high-heeled shoes when she was carrying Kailie and fell on the carpeted floor. Kendra then placed Kailie back in her bassinet, which immediately fell on top of Kailie. Kendra did not recall shaking Kailie violently, squeezing her tightly, or telling the police or the Department of Child and Family Services (DCFS) about the above incident. McCary also testified that Kendra confessed to dropping Kailie, but McCary never reported this to law enforcement officials.

         ¶ 7 Detectives Holevis and Grossman testified that the totality of the investigation led them to believe that plaintiff was responsible for Kailie's death. Detective Holevis attended the autopsy, where the medical examiner, Dr. Michelle Jordan, ruled Kailie's death a homicide and specifically told Detective Holevis that Kailie's femur fracture could only have been caused by an adult. Interviews with McCary and Antoine revealed that plaintiff was the only adult present at the approximate time of Kailie's death. The detectives also noted that throughout the course of his interview, plaintiff claimed that he unintentionally injured Kailie when he blacked out and fell on her. Neither detective interviewed Kendra or reviewed interviews conducted by other law enforcement agencies. The detectives were first informed of Kendra's alleged statements when the ASA showed Detective Holevis a DCFS report before trial. Detective Grossman received an anonymous call from someone claiming that Kendra dropped Kailie, but Detective Grossman did not believe this was relevant because Dr. Jordan "categorically denied" that dropping Kailie would have caused the fatal injuries.

         ¶ 8 Dr. Jordan confirmed her finding of death as homicide by multiple injuries due to blunt force trauma. During her testimony, she referenced her autopsy report noting that Kailie had external injuries consisting of "scattered petechial hemorrhages" on her lower gum line and "a pinpoint red abrasion" on the midline chest. Kailie's internal injuries consisted of a "skull fracture" that had "significant brain swelling, " as well as "a pronounced sub scalp and subgaleal hemorrhage involving the scalp." Further, "[t]here [were] bilateral rib fractures" and "optic nerve sheath hemorrhages." There was also "a contusion or bruise involving the left diaphragm *** lung contusions *** a liver laceration *** a transverse fracture involving the left femur or thigh bone, and *** hemorrhage of the soft tissue that encase[d] the bowel." Dr. Jordan deduced that all of these injuries were caused by "blunt force trauma, " which "would be force applied to the body." For instance, it "would be a punch. It could be a kick. It could be being struck with an object or the object falling against another object." When directly asked if there was "any reason to suspect that a child had caused these significant injuries that [she] saw and documented, " Dr. Jordan responded, "I would say no, based on the information that I had at the time." Additionally, Dr. Jordan received a call from a woman claiming to be Kailie's mother, saying "it's an accident because the child fell out of the bassinet and the bassinet fell over the child." Dr. Jordan then requested the bassinet be brought into the office for examination and was "steadfast in her opinion" that Kailie's injuries were not consistent with Kailie falling out of the bassinet. Furthermore, Dr. Jordan did not believe that "a child carrying the baby who's approximately four feet, six inches tall, stumbling and falling, and in the process falling on her knees, dropping the baby on the carpeted floor" or "a baby landing on high-heeled shoes" could have caused Kailie's injuries. Given the severity of Kailie's injuries, Dr. Jordan did not believe it was probable that a child was the perpetrator.

         ¶ 9 Additionally, testimony from ASAs Mary-Beth Kent-Duffy and Kathryn M. Morrissey revealed the following. ASA Duffy was involved in the case during pretrial motions, while ASA Morrissey tried the case to a not guilty verdict. Both ASAs stated that they felt there was probable cause to prosecute plaintiff, as the felony review division of the Cook County State's Attorney's office approved the charge of murder against plaintiff. The case then went before a grand jury, which returned a true bill indicting plaintiff of first degree murder. Thereafter, plaintiff filed a motion to quash his arrest for lack of probable cause, but the trial court denied the motion after reviewing the evidence.

         ¶ 10 Neither ASA changed her position on probable cause when the defense presented the theory that Kendra caused Kailie's injuries. ASA Duffy recalled that she did not believe a child was capable of committing the injuries because it "would take an inordinate amount of strength to be able to break a one-month-old's bone[s] like that." ASA Morrissey called the defense theory "ridiculous" and said that the new Cook County medical examiner, Dr. Stephen Cina, believed Kendra's statement of what happened was inconsistent with Kailie's injuries. After interviewing Kendra, ASA Morrissey believed that Kendra was "being fed a story" because her answers were inconsistent with her original statement.

         ¶ 11 Following discovery, defendants filed a motion for summary judgment arguing that probable cause existed to charge plaintiff with murder, thus vitiating plaintiff's malicious prosecution claim. Defendants' motion also argued that plaintiff's intentional infliction of emotional distress claim was barred by the applicable one-year statute of limitations. After hearing arguments, the trial court concluded that there was "no genuine issue of material fact regarding the existence of probable cause" to arrest and prosecute plaintiff. In addition, the trial court ruled that the intentional infliction of emotional distress claim was indeed filed "beyond ...

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