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