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People v. Drake

Court of Appeals of Illinois, First District, Fifth Division

December 15, 2017

GERALD DRAKE, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County No. 08 CR 23372 11 C6 60174 Honorable Luciano Panici, Judge Presiding.

          JUSTICE HALL delivered the judgment of the court, with opinion. Justice Lampkin concurred in the judgment and opinion. Justice Gordon partially concurred and partially dissented in the judgment and opinion.


          HALL, JUSTICE

         ¶ 1 Following a bench trial in the Cook County circuit court, defendant Gerald Drake was convicted of the aggravated battery of his six-year old stepson, J.H., and sentenced to 20 years in the Illinois Department of Corrections (IDOC). On appeal, defendant contends that (1) the State failed to prove beyond a reasonable doubt that he intentionally immersed J.H. in hot water where no eyewitnesses testified and unrebutted evidence shows that the hot and cold water lines were reversed in the bathtub in which J.H. sustained his burns; (2) the trial court erred in allowing nurse Rosalina Roxas to testify to J.H.'s statement identifying him as the person who poured hot water on him where it was not pertinent to his medical diagnosis and treatment and, therefore, inadmissible under the common-law exception to the hearsay rule; (3) this court should remand for a Krankel inquiry where he argued trial counsel's ineffectiveness for failing to put on evidence of J.H.'s mental disability and J.H.'s statement in which he did not implicate defendant, yet the trial court failed to investigate the claims; and (4) his 20-year sentence was excessive, and this court should impose a sentence closer to the minimum or, alternatively, remand for a new sentencing hearing.

         ¶ 2 For the following reasons, we reverse.

         ¶ 3 BACKGROUND

         ¶ 4 The State's evidence at trial established that defendant lived with his wife and their nine children, including J.H. While his wife was at work on July 29, 2008, defendant was home taking care of the children, who ranged in age from infancy to 12 years old. While defendant was at home with the children, J.H. sustained second- and third-degree burns on his buttocks, genital region, and both feet up to his ankles.

         ¶ 5 Retired registered nurse Rosalina Roxas testified on direct examination that she treated J.H. for his burns at John H. Stroger, Jr., Hospital (Stroger Hospital). She testified that on August 8, 2008, when she entered his room, J.H. said "nurse, I'm going to tell you something." J.H. then told her that defendant poured hot water on him while he was in the tub. J.H. indicated that he had not done anything to upset defendant. No one else was in the room. On cross-examination, she again confirmed that J.H. told her that his father poured a cup of hot water on his buttocks while he was in the tub, but she further testified that she never asked how large the cup was nor did she ever see or speak to anyone from J.H.'s family.

         ¶ 6 The State also presented the expert testimony of Dr. Marjorie Fujara, a specialist in child abuse pediatrics at Stroger Hospital. She examined J.H. on July 30, 2008, and stated that, in her professional opinion, J.H.'s injuries were the result of forcible immersion, indicative of child abuse. She indicated that the injuries were not consistent with water being poured on J.H., contrary to the statement testified to by Nurse Roxas. Dr. Fujara also stated that her opinion would not change even if she knew that the hot and cold water knobs had been switched. She further stated that all of J.H.'s siblings were examined and none of them had burns or indications of abuse. Dr. Fujara also never spoke with any of J.H.'s family members.

         ¶ 7 Finally, retired Illinois Department of Children and Family Services (DCFS) investigator Thomas White, who investigated the case in 2008, testified that he interviewed defendant at the family home on August 3, 2008, and defendant denied that he injured the child. Defendant indicated that on the date of the injuries, his wife, J.H.'s mother, was at work and he was caring for their eight or nine children at home (White could not recall the exact number because so much time had passed), who ranged in age from infancy to 12 years old. Investigator White concluded that defendant was overwhelmed, although defendant himself never used that word. On the date J.H. sustained his injuries, the baby defecated in his diaper, some of which ended up on the floor, during which time J.H. and another sibling were wrestling and got into the feces on the floor. After seeing them with feces on themselves, defendant told them to go and take a bath. When his wife came home from work that evening, the other kids told her that J.H.'s feet were peeling. Defendant and his wife took J.H. to the hospital, with defendant carrying him inside. Defendant admitted to Investigator White that, once they arrived at the hospital, he used the name "Joe Campbell, " stated that he was the child's uncle, and made up a story as to the child's location at the time of injury. When Investigator White interviewed the other children, he did not observe any signs or symptoms of abuse and they "[s]eemed appropriately adjusted."

         ¶ 8 On cross-examination, Investigator White testified that defendant indicated that he was not angered at the time he sent J.H. to take a bath. Defendant told him that a new water tank was installed by the landlord and that the hot and cold water lines were reversed. White checked the temperature coming out of the spigot when the cold water knob was turned on, and the temperature rose "rapidly" to 161 degrees. When White went to the basement to examine the water tank, he discovered that the hot and cold water pipes had been installed backwards on the new tank.

         ¶ 9 The defense rested without making a motion for directed finding or presenting any evidence.

         ¶ 10 The State argued in closing that defendant intentionally held J.H. under hot bath water. Defense counsel argued that J.H. was accidentally burned in the tub while defendant was not present in the bathroom. Additionally, defense counsel argued that the State presented no evidence to support its theories besides the injuries themselves and that no witness, including any of the other children present in the house at the time, testified as to the events of the day.[1]

         ¶ 11 At the conclusion of the bench trial, the trial court found defendant guilty of aggravated battery, citing two grounds in particular. First, the trial court observed: "There is scientific evidence where a reasonable inference can be made that in fact the defendant, who was the caregiver or caretaker of these eight children while mother was at work, in charge caused these injuries." Second, the trial court found, after considering all the evidence: "It's consciousness of guilt because defendant took off, also the fictitious name that he used when he went to the hospital ***." The trial court's finding referred to the fact that, on November 29, 2011, defendant failed to appear for a court date and a bench warrant was issued for his arrest.[2]

         ¶ 12 On May 21, 2014, several weeks after trial but prior to sentencing, defendant filed a pro se motion titled "Motion-To-Appeal-An-Unfair-Trial, " in which he claimed that his trial counsel was ineffective. Defendant filed this pro se motion with the clerk of the Appellate Court, First District, who forwarded it to the circuit court clerk. On June 26, 2014, which was almost a month prior to sentencing, the trial court entered an order that denied defendant's pro se motion and treated it instead as an interlocutory notice of appeal.

         ¶ 13 On July 22, 2014, the trial court denied a posttrial motion for a new trial filed by defendant's counsel. In this posttrial motion, defendant reasserted a claim that the trial court had previously denied, namely, that this case was barred on res judicata grounds because in a prior abuse and neglect case filed by the State against defendant and his wife based on the same incident, the State had failed to prove its case by clear and convincing evidence. Defendant also claimed that the evidence was insufficient to prove him guilty of aggravated battery of a child and that the trial court erred by admitting the nurse's statement pursuant to the hearsay exception for medical statements.

         ¶ 14 After denying the posttrial motion, the trial court sentenced defendant to 22 years in the IDOC. A discussion ensued as to whether the sentence was to be served at 85% or 50%. The trial court then ordered, "22 years IDOC plus three years mandatory supervised release at 50 percent."

         ¶ 15 After sentencing defendant on the aggravated battery charge, the trial court then proceeded to a sentencing hearing on another outstanding charge. Defendant had previously pleaded guilty to a charge of driving a motor vehicle while his license was suspended or revoked. The trial court sentenced him on this second charge to one year in the custody of the IDOC to be served consecutively to the aggravated battery sentence.

         ¶ 16 On July 24, 2014, the State filed a "Petition for Relief from Judgment, " arguing that defendant's aggravated battery sentence was a void judgment because it had to be served at 85%, not at 50%, as the trial court ordered. At the hearing on the petition on August 6, 2014, the State requested that the trial court resentence defendant. The trial court stated: "I didn't make any specific findings on the record, I don't think, because I didn't write anything down, I just said 22 years." Defense counsel argued that defendant "would have essentially served 11 years" with the IDOC and, thus, the trial court should now sentence defendant to "14 years at 85 percent." The trial court responded, "My sentence was 22 years and I wasn't considering whether or not it was going to be 50 or 85 percent."[3] The court then ruled that it "will re-sentence the defendant to a term of 20 years I.D.O.C. plus 3 years MSR at 85 percent."

         ¶ 17 On August 8, 2014, defendant again filed his pro se motion titled "Motion-To-Appeal-An-Unfair-Trial-Factors-That-My-Attorney-Did not-Argue-in-Trial On-Defendant-Behalf." In this motion, defendant claimed that his attorney did not "do a good job" because he failed to argue that the victim had suffered from mental health issues since he was a toddler and had attended "mentally retarded schools all his life." Defendant claimed that all of J.H.'s teachers had stated on school reports that "he thinks slower than normal kids" and that J.H.'s mental issues played a large role in his injuries. Defendant argued that if it took only one or two seconds to become burned at 160 degrees, J.H.'s reaction time is a lot slower than a normal child and that was why it "took him longer than a normal kid *** to get out." Defendant also claimed that his attorney failed to present expert testimony by a plumber about the broken water tank. His attorney also failed to argue that J.H. spoke to a DCFS case worker, a physician, and a detective and never told any of them that defendant held him in the tub. Defendant further claimed that his attorney also failed to explain that defendant had a history of using fake names because he had an outstanding warrant for driving with a revoked license. Also, defendant did not want to initially turn himself in because his family had fallen behind on the rent and other bills and he wanted to pay off these bills first.

         ¶ 18 The trial court docketed this pro se motion as a notice of appeal, and no other notice of ...

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