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People v. Holmon

Court of Appeals of Illinois, Fifth District

August 26, 2019

JOHN HOLMON III, Defendant-Appellant.

          Appeal from the Circuit Court of Madison County. No. 12-CF-1869 Honorable Neil T. Schroeder, Judge, presiding.

          Attorneys for Appellant James E. Chadd, State Appellate Defender, Ellen J. Curry, Deputy Defender, Levi S. Harris, Assistant Appellate Defender, Office of the State Appellate Defender, Fifth Judicial District

          Attorneys for Appellee Hon. Thomas D. Gibbons, State's Attorney, Madison County Courthouse, Patrick Delfino, Director, Patrick D. Daly, Deputy Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor

          JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Justices Cates and Moore concurred in the judgment and opinion.



         ¶ 1 This case involves the tragic beating death of a toddler. The defendant, John Holmon III, was charged with the child's murder, and the evidence at trial overwhelmingly supported his subsequent conviction on that charge. The defendant appeals, arguing that he was denied a fair trial due to numerous instances of prosecutorial misconduct during closing arguments. Although we agree with the defendant that the prosecutor made several blatantly improper comments during her closing argument, we do not find that reversal is warranted in light of the overwhelming evidence against the defendant, the lack of objection to most of the challenged remarks, and the fact that the trial court sustained objections to many of the most egregious of the challenged remarks. For these reasons, we affirm.

         ¶ 2 When the events at issue in this case took place, the defendant and his girlfriend, Dollie Rusher, lived with Dollie's 20-month-old son, Jasean Rusher, and her mother, Tommie Rusher. On the morning of September 10, 2012, the defendant and Dollie woke up early. They put little Jasean in his stroller and walked to the bus stop so that Dollie could catch a 6:33 a.m. bus for her first day of college. After Dollie got on the bus, the defendant took Jasean home. When they got there, Tommie was awake and getting ready to leave the house. She left the house at 7:10 a.m. The defendant gave Jasean his breakfast, changed his clothes, and put him in his crib. Then he went back to bed so he could get enough sleep before going to work. He set his alarm clock for 12:40 p.m.

         ¶ 3 The overwhelming evidence at trial showed that Jasean died sometime between 7:10 a.m. and 12:40 p.m. that day. Overwhelming evidence also showed that Jasean died due to extensive traumatic injuries inflicted on him during a beating. It is undisputed that the defendant was alone with Jasean during the relevant time period.

         ¶ 4 At trial, jurors saw a video-recorded deposition given by Tommie Rusher. She testified by deposition because she was diagnosed with cancer and died before trial. Tommie testified that on the morning Jasean died, she briefly saw Jasean and the defendant after they returned from taking Dollie to the bus stop. At that time, Jasean did not have any bruises. Tommie left the house at 7:10 a.m. to volunteer at a soup kitchen for homeless people. When she returned home at 12:15 p.m., she did not immediately see the defendant or Jasean. She made some coffee and went to her bedroom to put away her shoes. She testified that the defendant came into her bedroom carrying Jasean. He told her, "I don't know what's wrong. He was fine five minutes ago."

         ¶ 5 Tommie testified that Jasean was naked and cold and he looked like he was dead. He had cuts on his forehead and bruises on his arms. She testified that the defendant gave her two different explanations for what had happened. He told her that Jasean must have fallen out of his crib. He also told her that the dogs had been rolling Jasean around on the floor. Tommie wrapped Jasean in a blanket and attempted to perform CPR on him. She told the defendant to call 9-1-1, but the defendant told her that his phone was lost. Tommie told him to call with her phone, but she stated that he still refused to do so. Tommie called 9-1-1 herself. A recording of that call was played for the jury. Tommie continued to perform CPR until medics arrived to transport Jasean to the emergency room.

         ¶ 6 Tommie acknowledged that she did not like the defendant. She also testified that, to her knowledge, the defendant had never previously struck Jasean. Finally, she testified that Jasean occasionally bumped his head when he fell or bumped into furniture.

         ¶ 7 Jurors also saw video recordings of the defendant's statements to police. Initially, he told police that he woke up some time between 8 a.m. and 9 a.m. to find Jasean in the living room playing with the dogs. He admitted that he did not find any bruises or cuts on Jasean at this time. The defendant told police that he put Jasean back in his crib and went back to sleep. He told them that he woke up again at 12:40 p.m. and found Jasean sitting in a plastic bucket. Jasean was wheezing and turning blue. The defendant stated that he immediately brought Jasean to Tommie. He denied harming Jasean. He speculated that the dogs may have dragged Jasean from his bedroom to the living room.

         ¶ 8 The defendant's story changed after police told him that Jasean had died. The defendant became upset and said that he did not mean for this to happen. He admitted that he gave Jasean a spanking. Police showed him photographs of Jasean's injuries. At this point, the defendant admitted that he gave Jasean three spankings. He explained that Jasean got out of his crib and pulled the tail of one of the dogs. He told police that he loved Jasean and that he would never intentionally harm him. Later, the defendant admitted using a flip-flop to spank Jasean. He also admitted that he may have grabbed Jasean by the arms when picking him up from the stroller.

         ¶ 9 The defendant presented evidence at trial that Dollie had been diagnosed with a hereditary condition called Ehlers-Danlos syndrome. Ehlers-Danlos syndrome is a connective tissue disorder that causes hypermotility of the joints and fragility of the skin tissue. Minor trauma can cause severe wounds. See Mosby's Medical, Nursing, & Allied Health Dictionary 538 (5th ed. 1998). There was no evidence that Jasean had ever been diagnosed with Ehlers-Danlos syndrome. However, it can be passed on from parent to child. During his statements to police, the defendant indicated that both Dollie and her father were diagnosed with Ehlers-Danlos syndrome, and he suspected that Jasean might have it as well because he and Dollie both fell down a lot.

         ¶ 10 The State presented the testimony of three medical experts. Dr. Debabrata Ray is the emergency room doctor who examined Jasean. Dr. Ray observed bruising on Jasean's forehead, back, buttocks, and the right side of his body. He also observed abrasions on Jasean's eyelid, upper lip, shoulder, and buttocks, and blood on his upper lip. He testified that several of the bruises were shaped like human fingers or a human hand. Dr. Ray pronounced Jasean dead. He opined that Jasean died a few hours before he was brought to the emergency room. He concluded that Jasean died as a result of traumatic injuries to his head, face, and buttocks.

         ¶ 11 Dr. Raj Nanduri performed an autopsy on Jasean. She testified that she observed multiple visible contusions to the back of Jasean's head, his back, and the nape of his neck. She also observed abrasions, swelling, and contusions on Jasean's face. She opined that these injuries were consistent with being punched or slapped in the face. She also testified that there were 11 injuries to Jasean's head that were consistent with being punched by a closed fist. Dr. Nanduri observed bruising and contusions to Jasean's arms, buttocks, and the back of his thigh. She noted that a contusion on the back of his thigh was consistent with being struck with a shoe or a flip-flop, and she noted that the bruises on his arms were consistent with being grabbed by the hands of an adult. Dr. Nanduri testified that she found 35 distinct injuries. However, she noted that some of the injuries were superimposed over others. As such, she explained, there may have been 50 or more blows in total.

         ¶ 12 Dr. Nanduri testified that none of these injuries were consistent with the type of accidental injuries toddlers typically sustain. She explained that she reached this conclusion due to the locations of the injuries. She further testified that she saw no evidence of dog bites. She determined that all of Jasean's injuries were sustained around the same time.

         ¶ 13 In addition to the extensive external injuries she saw, Dr. Nanduri found hemorrhaging inside Jasean's skull. She explained that this was caused by trauma. She concluded that the trauma to Jasean's head caused his death. Like Dr. Ray, Dr. Nanduri opined that Jasean died a few hours before arriving at the emergency room. Asked about the possible impact of Ehlers-Danlos syndrome, Dr. Nanduri explained that if Jasean had this disease, she would have observed older bruises.

         ¶ 14 Dr. Nanduri sent Jasean's brain to Dr. Mary Case for further analysis. Dr. Case testified that she found evidence of two different types of hemorrhaging in Jasean's brain, both of which likely resulted from inertial head trauma. She explained that when the head is moved quickly due to a significant amount of force, the brain can be detached from the dura, a membrane surrounding the brain. This in turn can sever the veins that bridge the brain and the dura. Dr. Case also found evidence of damage to the brain from a lack of oxygen. She noted, however, that there was no evidence of any prior incidents of hypoxia, meaning there were no prior episodes in which Jasean stopped breathing. She explained that such episodes would have caused damage to brain tissue, and such damage was not present.

         ¶ 15 Dr. Thomas Young, a board-certified clinical and forensic pathologist, testified as a retained expert for the defendant. He acknowledged that he was paid approximately $7000 for his services.

         ¶ 16 Dr. Young testified that, in forming his opinion, he reviewed the autopsy report of Dr. Nanduri, the neuropathology report of Dr. Case, the transcript of Tommie Rusher's deposition, Jasean's medical records, and the defendant's statements to police. He explained that he felt it was necessary to consider all of these sources of information because attempting to determine the cause of death without considering the statement of an eyewitness would be "a lot like looking at a broken glass in a window and thinking that you can tell how the window got broken just simply by looking at the broken glass." He opined that it was "better to listen to somebody who was there to actually see it." Dr. Young described his process of inquiry as listening "to what the witness said," comparing those statements to the autopsy results, and determining "if it makes sense or it doesn't make sense."

         ¶ 17 When asked his conclusion as to what caused Jasean's death, Dr. Young began by noting that the defendant reported finding the child sitting up, wheezing, and turning blue. Dr. Young concluded that this description was consistent with the medical evidence. He explained that infants and young children can experience apneic spells. An apneic spell is an incident in which the child stops breathing. Dr. Young noted that in such circumstances, adults usually panic, and their handling of the child can cause bruising. He explained that Jasean's hemorrhaging likely occurred because his heart continued to pump blood after he stopped breathing, but his blood vessels were unable to "contain blood very well" due to insufficient oxygen. He attributed the bruising on Jasean's buttocks to blood pooling in that area. We note that Dr. Nanduri specifically rejected this explanation in her testimony. She explained that if the bruising was caused by the pooling of blood, she would have seen bruising in the cleft, but she did not.

         ¶ 18 Dr. Young testified that had he performed the autopsy, he would have listed the cause of death as undetermined. He explained that although the apneic spell was a contributing cause of death, the reason for the apneic spell was not known. He further testified that it was not possible to determine the precise time of Jasean's death.

         ¶ 19 Some of the investigating officers also testified. Although we need not discuss their testimony in detail, it is relevant to note that the prosecutor asked one of the officers if he knew who paid for Jasean's funeral. Defense counsel initially objected on the grounds of relevance. However, she withdrew her objection, and the officer testified that the police union paid for the funeral.

         ¶ 20 Because the defendant challenges numerous remarks during the State's closing argument, we will set forth those remarks in detail. Assistant State's Attorney Jennifer Mudge began her argument by telling jurors that Jasean Rusher was 20 months old and his nickname was Bug. She then stated, "Opposing counsel told you in [her] opening statement that she didn't want ...

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