People v. Reed
Annotate this Case
FIRST DIVISION
July 27, 1998
No. 1-96-3899
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
KEITH REED,
Defendant-Appellant. )
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) Appeal from the
Circuit Court of
Cook County
Honorable
Bertina Lampkin,
Judge Presiding.
JUSTICE O'BRIEN delivered the opinion of the court:
Following a bench trial, defendant, Keith Reed, was convicted
of two counts of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2)
(West 1996)) and sentenced to 60-years' imprisonment. On appeal,
he contends: (1) he was denied his sixth amendment right to
counsel when the trial court ordered his attorney to withdraw from
the case; (2) his trial counsel provided ineffective assistance;
(3) the trial court evidenced personal bias against him; (4) the
State failed to prove him guilty beyond a reasonable doubt; (5) the
trial court abused its discretion when sentencing him; (6) the
cumulative effect of the errors denied him a fair trial; and (7)
one of his two murder convictions should be vacated. We affirm
defendant's conviction under section 9-1(a)(1), and vacate his
conviction under section 9-1(a)(2).
At trial, Crystal Thomas testified she met defendant on May
23, 1992, and they became boyfriend and girlfriend. Crystal had a
21-month-old son, Kevin, by a previous relationship, and she and
Kevin sometimes spent the night with defendant at his house on 5927
South Carpenter.
Crystal testified that in June 1992, her sister gave
defendant's phone number to Kevin's father, who proceeded to call
defendant's house on numerous occasions in order to speak with
Crystal. Defendant apparently did not like Kevin's father calling
Crystal, and after one such phone conversation between Kevin's
father and Crystal, defendant threw some furniture and slammed a
door.
On July 20, 1992, Kevin was playing in the bedroom of
Crystal's mother's house. As he jumped up and down on the bed,
Kevin tumbled over and hit his head on a window pane. Crystal
applied some ice to Kevin's head, after which he resumed his play.
Later that afternoon, Kevin hit his head on a glass table in
Crystal's mother's living room. Crystal applied some cold water to
stop the bleeding, and Kevin again resumed his play.
Later that evening, Crystal and Kevin went to defendant's
house, where they spent the next five days. On July 21 and July
22, 1992, Crystal noticed some new injures to Kevin, specifically,
a discoloration of his eye and a little cut on the side of his lip.
She asked defendant about the cause of Kevin's injuries, and
defendant responded that the cut lip was from a "rug burn" and the
discolored eye resulted from some bacteria or dust.
On July 24, 1992, Crystal and defendant had an argument
concerning the frequent phone calls from Kevin's father. Defendant
wanted the phone calls to stop, and he wanted to know whether
Crystal intended to get back together with Kevin's father. During
the argument, defendant knocked over some items that were sitting
on the dining room table, punched and broke a fan, and swung a
trophy around.
Later that evening, Crystal gave Kevin a bath. She did not
notice any injuries to his chest or abdomen at that time. Kevin
slept in defendant's room that night, while defendant and Crystal
slept in the living room.
The following morning, July 25, 1992, Kevin woke up, walked
into the living room, and sat down next to Crystal and defendant.
Crystal testified that Kevin had no problem walking out from the
bedroom.
Defendant then brought Kevin back into defendant's bedroom,
where Kevin went back to sleep. Crystal took a bath and got ready
to run some errands. Before leaving, she checked on Kevin, who was
sleeping in only a diaper. Crystal did not notice any marks on
Kevin's chest, nor did she notice anything wrong with him.
Crystal returned to the house around 3 p.m. and was met there
by defendant's brother, who told her that Kevin was at Wyler's
Children's Hospital. Crystal went to the hospital, where she was
told that her baby was in surgery. A policeman then took her to
39th and California, where they questioned her and told her that
Kevin was dead.
Officer Joseph Battaglia testified that at about 12:40 p.m. on
July 25, 1992, he received a call about a possible child abuse
victim at 5927 South Carpenter. He arrived at the house within two
minutes of the call. After speaking with defendant's brother and
another officer, Battaglia drove to Wyler's Children's Hospital,
where he spoke with defendant about the child, Kevin.
Defendant explained to Officer Battaglia that Kevin was his
girlfriend's (Crystal Thomas') child, and that Crystal and Kevin
had been staying with him that week. Defendant told Officer
Battaglia that Crystal went shopping that morning at about 9 a.m.
and left Kevin with defendant. While Crystal was out, Kevin began
to "look sick," so defendant's brother called paramedics via 911.
Officer Battaglia asked defendant whether he had ever seen Crystal
harm Kevin in any fashion, and defendant responded negatively.
Detectives John McCann and Louis Caesar testified that around
2 p.m. on July 25, 1992, they received an assignment to proceed to
Wyler's Children's Hospital regarding a seriously injured child,
possibly the result of child abuse. At the hospital, the
detectives spoke with Officer Battaglia and learned that Kevin was
receiving medical treatment and that defendant was present in the
hospital.
The detectives interviewed defendant in a police room in the
hospital. Defendant told the detectives that around 9:30 a.m. on
July 25, Crystal left his house, leaving defendant alone with
Kevin. The baby was asleep when Crystal left.
Defendant further told the detectives that Kevin woke up
around noon, and defendant went to change his diaper. At that
time, defendant noticed that Kevin was having trouble walking.
Defendant picked up Kevin, carried him to a rocking chair, and gave
him a bottle. Defendant noticed that Kevin's eyes did not look
right and that he appeared "spacey."
Defendant called his brother, who was a former medical
technician. The brother came to the house, looked at Kevin, and
told defendant that Kevin appeared to have problems with his
abdomen and that his hands were white, cold, and clammy. The
brother told defendant to call the paramedics. The paramedics
arrived and took Kevin to the hospital.
Detectives McCann and Caesar testified they checked on Kevin
after talking to defendant. The doctor showed them Kevin's body;
he had been pronounced dead around 2:30 p.m. When viewing the
body, Detective Caesar noticed swelling on the back of Kevin s
head, a laceration of the lip, a dark eye, and bruises across his
chest and abdomen.
Detectives McCann and Caesar testified they later took
defendant to the police station at 39th and California, where they
spoke with him in an interview room on the third floor. Defendant
told the detectives that he had called the paramedics because Kevin
"looked funny" when he woke up. Detective Caesar asked about the
injuries to Kevin's lip and the back of his head, and defendant
responded that Crystal had told him that Kevin hit his head on a
table and while playing on a bed at her mother's house. Defendant
stated he did not know how Kevin suffered the injuries that caused
his death.
Detectives McCann and Caesar attended Kevin's autopsy on July
26, which was performed by Doctor Edmond Donoghue. Doctor Donoghue
testified that he found extensive bruising on Kevin's head, chest,
abdomen, arms, and legs. There was also a large area of
hemorrhage beneath the scalp on the right and left side of the
head. Doctor Donoghue found 14 internal injuries in the chest and
abdominal cavity. Doctor Donoghue testified that Kevin died of
multiple injuries due to blunt trauma and that the injuries were of
the type seen in an automobile accident or in a child who had
fallen out of a third-story window. Doctor Donoghue opined that
Kevin's internal injuries happened only hours before his death.
Detectives McCann and Caesar testified they thereafter
brought defendant back in for questioning. Around 6 p.m. on July
26, Detective Caesar spoke with defendant and asked if he knew how
Kevin had been injured. Defendant told Detective Caesar that on
July 25, 1992, when he brought Kevin from the front room to the
bedroom, Kevin slipped out of his hand. Defendant caught Kevin on
his forearm "kind of roughly"; defendant said that Kevin might have
hurt his abdomen then. Defendant also told Detective Caesar that
he played with Kevin later that morning by tossing him up in the
air. Defendant opined that Kevin could have been injured then as
well.
Defendant further told Detective Caesar that he had rearranged
some furniture in his house on July 25. At one point, defendant
retrieved a dolly from the basement in order to move the
entertainment center. Kevin got behind him, so defendant slapped
Kevin in the chest with the back of his right hand. Kevin fell
into the couch and whimpered a little bit.
Defendant told Detective Caesar that he later noticed Kevin by
a table, playing with some books and a prom mug. When Kevin
grabbed the mug, defendant again back handed him on the chest,
causing Kevin to fall down. Defendant then picked Kevin up and
placed him on a couch. Around noon, he prepared a bath for Kevin.
However, when defendant tried to walk Kevin toward the bath, Kevin
was unable to walk correctly; he kept falling down. Defendant then
called his brother, who came over and said the baby did not look
right. Specifically, defendant's brother stated that Kevin's
abdomen looked abnormal, that he was pale, and that defendant
should call the paramedics.
Detective Caesar testified that he asked defendant about the
red marks on Kevin's chest. Defendant replied that he did not
notice any marks on Kevin's chest until after he hit him.
Assistant State's Attorney Steven Rosenblum testified he spoke
with defendant at about 8 p.m. on July 26 in an interview room on
the third floor of the police station. Defendant told Rosenblum
that Crystal had left him alone with Kevin on July 25. After
Crystal left, defendant began rearranging some furniture in his
living room. Kevin came into the living room, and defendant played
with him by tossing him up in the air and spinning him around a
little bit. After he stopped playing with Kevin, defendant went
back to moving the furniture. At one point, defendant got out a
dolly and was moving the entertainment center. Kevin got in the
way, so defendant hit Kevin hard in the chest area with the back of
his hand in order to move him out of the way.
Defendant further told Rosenblum that he later saw Kevin
playing with some prom glasses and a trophy that were on a table.
Defendant did not want Kevin playing with those items, so again he
hit Kevin hard in the chest with the back of his hand. Defendant
then took Kevin into the bedroom, and Kevin fell asleep. About an
hour later, when defendant tried to wake Kevin so he could take a
bath, Kevin appeared sluggish and had a strange look on his face.
Defendant called his brother, who came over, looked at Kevin, and
told defendant that Kevin had some internal bleeding and cold,
pale, clammy hands. Defendant called an ambulance for Kevin.
Defendant testified on his own behalf that he was home alone
with Kevin on the morning of July 25, 1992. When Kevin awoke,
defendant played with him by picking him up, swinging him around,
and catching him. However, defendant soon noticed that Kevin did
not appear to be feeling well, so defendant then left him alone and
started moving some furniture. As defendant was moving his
entertainment center toward a wall, he noticed that Kevin was
behind him. To keep Kevin from being injured by the entertainment
center, defendant pushed Kevin out of the way. Defendant testified
he did not push him hard; rather, "it was more like a reflex, a
real quick blow to get him out of the way." After defendant hit
him, Kevin fell down, then got back up.
Defendant testified that he later noticed Kevin playing with
a prom glass and a couple of trophies. Defendant took the prom
glass and trophies away from Kevin, picked him up, and set him on
a couch. Defendant gave Kevin some milk and cookies, and Kevin
fell asleep on the couch. Defendant finished cleaning while Kevin
slept.
Defendant woke Kevin so he could take a bath. Kevin took a
couple of steps toward the bathroom, then fell down. Defendant
picked Kevin up and noticed that he looked "spaced in the face."
Defendant called his brother, who came over and said Kevin had
internal bleeding. Defendant called an ambulance.
Defendant testified that he never intended to hurt Kevin at
any time.
On cross-examination, defendant acknowledged an argument he
had with Crystal after Kevin's father called defendant's house and
threatened to shoot him. Defendant also testified that the night
before Kevin's death, he and Crystal had a "disagreement" about
their relationship.
Defendant testified that when he hit Kevin to push him out of
the way of the entertainment center, Kevin scooted back and fell on
his bottom, but did not hit the wall or couch. Defendant denied
telling Detective Caesar or Assistant State's Attorney Rosenblum
that he hit Kevin for playing with the prom glass. Defendant also
denied seeing any red marks on Kevin's chest after he hit Kevin.
The trial court found defendant guilty of two counts of first-
degree murder and sentenced him to 60-years' imprisonment.
Defendant appeals.
First, defendant argues he was deprived of his sixth amendment
right to counsel when the trial court ordered his attorney, Jack
Rogdon, to withdraw from the case prior to trial. Defendant waived
this issue by failing to raise it in his post trial motion. People
v. Enoch, 122 Ill. 2d 176, 186 (1988). However, even addressing
the issue on its merits, we find no error.
The court's order came about as a result of a pretrial motion
to suppress filed by Rogdon. In that motion to suppress, Rogdon
stated that defendant had requested to speak with his attorney
(Rogdon) when the detectives and assistant State's Attorney
questioned him; that Rogdon was present at the police station
during a portion of the interrogation; and that Rogdon was not
permitted to see defendant. The State subsequently made an oral
motion to disqualify Rogdon because he was a potential witness at
the hearing on the motion to suppress. The State relied on Rule 5-
102 of the Illinois Code of Professional Responsibility, which
provided in relevant part:
"If a lawyer learns after undertaking employment in
contemplated or pending litigation or if it is obvious that he
or a lawyer in his firm ought to be called as a witness on
behalf of his client, he shall withdraw from the conduct of
the trial ***." 107 Ill. 2d R. 5-102.
Rogdon vigorously objected to the State's motion, arguing that
his testimony would be unnecessary because there were other persons
present at the police station who could verify the allegations in
the motion. The trial court was skeptical of this argument, noting
that Rogdon was the best witness to testify as to whether the
police prevented him from speaking to defendant. The trial court
also was wary of the possibility that, if it allowed Rogdon to stay
on the case, he would question the defense witnesses at trial about
whether the police had prevented defendant from speaking with him.
The court thought this unacceptable, since Rogdon would be putting
his "credibility at issue" and he could not be cross-examined.
Accordingly, over Rogdon's objections, the trial court ordered him
to withdraw from the case.
Before examining the propriety of the trial court's order,
first we must determine the appropriate disciplinary rule governing
Rogdon's conduct. The State argued that section 5-102 of the
Illinois Code of Professional Responsibility (Code) necessitated
his removal from the case. However, the Illinois Supreme Court
repealed the Code in 1990 and replaced it with the Illinois Rules
of Professional Conduct (Rules). See 134 Ill. 2d art. VIII. Thus,
the Rules were in effect when the State moved for Rogdon's
withdrawal, and accordingly our analysis begins with the Rules, as
opposed to the Code.
Rule 3.7 is applicable here and states in relevant part:
"A lawyer shall not accept or continue employment in
contemplated or pending litigation if the lawyer knows or
reasonably should know that the lawyer may be called as a
witness on behalf of the client ***." 134 Ill. 2d R. 3.7.
During argument on the motion to disqualify, the State argued
that it might call Rogdon as a witness, since he was present at the
police station at the time of defendant's interrogation and could
testify as to whether the police officers refused to let him see
defendant. Under such circumstances, Rule 3.7 mandated Rogdon's
withdrawal, and in the face of his refusal to so withdraw, the
trial court acted within its discretion when it ordered him off the
case.
Defendant argues that we should not consider Rule 3.7's effect
on this case, since said rule was not raised in the trial court.
We reject this argument, as we may affirm on any basis in the
record (Monco v. Janus, 222 Ill. App. 3d 280, 299 (1991)), and Rule
3.7 supports affirmance of the trial court's order.
Defendant also argues that the trial court should have held a
hearing before ordering Rogdon to withdraw. In support, defendant
cites People v. Holmes, 141 Ill. 2d 204 (1990), and People v.
Kubat, 94 Ill. 2d 437 (1983). In Holmes, the State filed a
pretrial motion to disqualify defendant's attorney because of a
conflict of interest. Holmes, 141 Ill. 2d at 212-13. The trial
court conducted a hearing on the motion, determined a conflict of
interest existed, and removed the attorney from the case. Holmes,
141 Ill. 2d at 213. Our supreme court affirmed. In Kubat, the
defendant filed a pretrial motion for change of counsel due to
counsel's alleged ineffective assistance and a conflict of
interest. Kubat, 94 Ill. 2d at 480-81. The trial court held two
hearings, determined that defendant's allegations were
substantially unsupported, and denied the motion. Kubat, 94 Ill. 2d at 481. Our supreme court affirmed.
Although the trial court in Holmes and Kubat conducted
hearings before determining whether to disqualify counsel, neither
case held that such hearings are mandatory where, as here, the
pleadings on file clearly indicate that counsel is a potential
witness on behalf of his client. Further, the trial court here
did not simply rely on the pleadings; it also heard argument from
both the State and defense regarding Rogdon's potential appearance
as a witness prior to making its ruling. Said argument, along with
the motion to suppress filed by Rogdon, convinced the court that
Rogdon must withdraw. As discussed above, we find no abuse of
discretion in the court's determination.
Next, defendant argues that the trial counsel who replaced
Rogdon provided ineffective assistance during the hearing on his
motion to suppress, at trial, and at sentencing. The State notes
that defendant did not raise this issue in his posttrial motion.
However, defendant does not waive his ineffective assistance of
counsel claim by failing to raise it in a posttrial motion where,
as here, the posttrial motion was prepared and presented by the
same attorney who represented defendant at trial. People v.
Keener, 275 Ill. App. 3d 1, 5 (1995). Therefore, we address the
issue on its merits.
To establish a claim of ineffective assistance, defendant must
show that counsel's performance fell below an objective standard of
reasonableness and that counsel's deficient performance prejudiced
defendant. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504,
525 (1984). To establish that counsel was ineffective, defendant
must overcome the strong presumption that the challenged conduct
falls within the realm of trial strategy. People v. Randle, 277
Ill. App. 3d 788, 797 (1995).
First, we address counsel's performance during the hearing on
the motion to suppress. Counsel presented two witnesses at the
hearing: defendant and his brother, Wilson. Wilson testified that
in July 1992, he was living with defendant at 5927 South Carpenter.
On July 25, 1992, defendant's girlfriend's son, Kevin, became sick.
They called an ambulance, which transported Kevin to Wyler's
Children's Hospital. Defendant accompanied Kevin to the hospital,
and Wilson went to the hospital later that day to be with
defendant.
Wilson testified that while in the hospital emergency room
around 1 p.m., he spoke with Detective McCann and asked him if
defendant was under arrest and needed an attorney. Detective
McCann said "no."
About 15 or 20 minutes later, Wilson spoke with Detective
Caesar in the hospital parking lot. Defendant was present during
this conversation. Following the conversation, defendant
accompanied Detectives McCann and Caesar to the police station.
Wilson testified he went to the police station and talked with
Detective McCann at around 3 or 4 p.m. Wilson asked Detective
McCann whether defendant was under arrest and needed an attorney.
Detective McCann stated that defendant was not under arrest and did
not need an attorney. However, Detective McCann would not let
Wilson see defendant.
Wilson testified he next saw defendant in the late evening on
July 25, in the police station parking lot. Defendant was with
Detectives McCann and Caesar, and the three of them were about to
go to another facility so that defendant could take a polygraph
test. Defendant was not handcuffed. Wilson asked to go with
defendant, but the detectives refused. Defendant returned home
around 10 p.m.
Wilson testified that Detectives McCann and Caesar came to his
house around 11 a.m. on Sunday, July 26. Detective McCann told
Wilson that they wanted to ask defendant a couple of more questions
so that they could wrap up the investigation. Detective McCann
also stated that defendant was not under arrest and did not need an
attorney. Defendant then left the house with the detectives.
Defendant testified on his own behalf that after he arrived at
the hospital on July 25, uniformed police officers directed him to
move into a police room. While in that room, defendant spoke with
Detectives McCann and Caesar about Kevin. Defendant testified that
he voluntarily spoke with Detectives Caesar and McCann while in the
hospital and that they did not give him Miranda warnings at that
time.
Defendant testified he then voluntarily left the hospital and
went with the detectives in their car to the police station.
Defendant was not handcuffed, and the detectives did not give him
Miranda warnings in the squad car or after they arrived at the
police station. At the station, the detectives questioned
defendant about the circumstances surrounding Kevin's death.
Defendant testified that the detectives asked him if he would
take a polygraph test. Defendant said "yes." Defendant left the
police station around 5 p.m. with the detectives and Crystal Thomas
in an unmarked police car. Defendant was not handcuffed or given
Miranda warnings. They proceeded to 11th and State, where
defendant and Crystal took a polygraph examination. Defendant
testified that before taking the polygraph test, he signed a
consent form containing his Miranda rights.
The detectives then transported defendant back to the police
station at 39th and California. After one of the detectives
retrieved a camera, they all proceeded to Crystal's house.
Defendant was not handcuffed. The detectives then dropped
defendant off at his home.
Defendant testified that the detectives arrived at his house
the next day, July 26, at around 1 p.m. The detectives told
defendant that they had a few more questions for him, and they
asked him to come to the police station. Defendant testified he
voluntarily accompanied the detectives to the police station and
that he was not handcuffed.
Defendant testified he spoke with Assistant State's Attorney
Rosenblum, who advised him of his Miranda rights. Defendant
testified he told Rosenblum that he was at the police station
voluntarily.
The court then questioned defendant, asking him whether he had
at all times voluntarily accompanied the detectives to the police
station. Defendant said "yes."
Following defendant's testimony, defense counsel argued that
since the detectives failed to give defendant his Miranda warnings
at the hospital or when they took him to the police station on July
25, the court should suppress any statements he made that day.
The trial court denied the motion to suppress, finding that
defendant voluntarily went to the police station on July 25 and,
therefore, the officers had no duty to give defendant Miranda
warnings.
On appeal, defendant argues his counsel was ineffective for
failing to elicit testimony that the police had denied defendant's
request to have an attorney present during questioning. We find no
ineffective assistance, as defendant has failed to overcome the
strong presumption that counsel's conduct was the result of trial
strategy; presumably, after interviewing the defendant and other
witnesses, counsel determined that defendant did not invoke his
right to counsel during any of the interrogation sessions.
Accordingly, counsel provided reasonable professional assistance by
proceeding on the theory that the detectives failed to give
defendant Miranda warnings.
Defendant also argues that his counsel was ineffective for
failing to file a motion to quash his arrest at the hospital on
July 25, based on a lack of probable cause. To prevail on his
claim, defendant must show that the trial court would have granted
the motion. People v. Bennett, 222 Ill. App. 3d 188, 201 (1991).
An arrest occurs when a person's freedom of movement has been
restrained by means of physical force or show of authority. In re
J.W., 274 Ill. App. 3d 951, 957-58 (1995). In determining whether
a person has been arrested, the relevant inquiry is whether a
reasonable, innocent person in his situation would conclude that he
was not free to leave. J.W., 274 Ill. App. 3d at 958. Factors to
be considered in determining whether an arrest occurred include the
presence or absence of a formal declaration of arrest and other
routine procedures associated with an arrest, such as handcuffing
and fingerprinting. People v. McClellan, 232 Ill. App. 3d 990, 999
(1992).
The testimony at the motion to suppress established that
defendant voluntarily spoke with Detectives McCann and Caesar at
the hospital and at the police station on July 25 and voluntarily
accompanied them to the police station at 39th and California, to
11th and State, and to Crystal's home. The detectives never
handcuffed defendant and returned him home on the night of July 25.
These facts were sufficient to show that the detectives did not
arrest defendant on July 25. It follows, then, that the trial
court would have denied a motion to quash arrest and, thus, counsel
was not ineffective for failing to file said motion. Bennett, 222
Ill. App. 3d at 201.
Defendant next argues his counsel was ineffective for not
attempting to have his inculpatory statements given on July 26
suppressed. We disagree, as trial counsel reasonably could have
concluded that no viable theory existed for suppressing the July 26
statements. First, defendant testified he voluntarily accompanied
the detectives to the police station on July 26. Second, Detective
McCann, Detective Caesar, and Assistant State's Attorney Rosenblum
testified they all advised defendant of his Miranda rights on July
26. Third, no evidence was presented that the detectives in any
way coerced defendant into making his statements. Accordingly,
counsel made a reasonable decision not to argue for the suppression
of the July 26 statements.
Defendant argues his counsel was ineffective for failing to
file any motions other than a motion to suppress, an answer to
discovery, and a motion for new trial. We reject defendant's
argument, as he fails to set forth with any specificity the other
motions counsel should have filed to effect a change in the outcome
of his case.
Next, we address defendant's allegations of ineffective
assistance immediately prior to and during trial. First, defendant
argues counsel was ineffective for failing to review the police
reports prior to trial. In support, defendant cites to a colloquy
that occurred after Officer Battaglia testified he spoke with
defendant at the hospital on July 25. When the prosecutor asked
Battaglia if defendant told him what happened earlier that day,
counsel objected, arguing that Battaglia had not given defendant
Miranda warnings before questioning him. The trial court asked
counsel why he had not filed a motion to suppress defendant's
statements to Battaglia, and counsel responded that this was the
first he had heard of such statements. The assistant State's
Attorney responded that defendant's statement to Officer Battaglia
was contained in the "very first police report counsel ever
received in this case." Counsel subsequently looked at the police
report in question and conceded that it contained defendant's
statement to Officer Battaglia. The trial court allowed Officer
Battaglia to testify about defendant's statement to him.
Counsel's failure to read the police report containing
defendant's statement to Officer Battaglia does not constitute
ineffective assistance, because defendant was not prejudiced
thereby. As recounted earlier in this opinion, defendant's
statement to Officer Battaglia was not incriminating; Battaglia
testified that defendant merely told him Kevin had begun to "look
sick" and that paramedics were called. Thus, since defendant's
statement to Officer Battaglia did not implicate him in Kevin's
death, counsel's failure to learn of the statement prior to trial
and have it suppressed did not constitute ineffective assistance.
See People v. Pecoraro, 144 Ill. 2d 1, 13 (1991) (court may dispose
of an ineffective assistance claim on the ground of lack of
sufficient prejudice without reaching the deficiency analysis).
Defendant argues that since counsel did not read the police
report containing defendant's statement to Officer Battaglia, he
probably did not read the other police reports in this case and,
thus, was ineffective. We disagree, as counsel indicated on the
record that he had reviewed the other police reports in this case
and was familiar with their contents, and defendant points to no
evidence to the contrary.
Defendant next contends his trial counsel provided ineffective
assistance by failing to adequately cross-examine Crystal Thomas
about the older injuries found on Kevin's body. In other words,
defendant contends that counsel should have attempted to establish
that Crystal, not defendant, abused Kevin. However, our review of
the record indicates that counsel did question Crystal about prior
injuries received by Kevin. Further, counsel elicited from Crystal
an admission that she had previously left Kevin in defendant's care
and that she had never seen defendant hit Kevin. Thus, counsel did
attempt to establish that someone other than defendant had hurt
Kevin, and therefore we find that counsel's cross-examination of
Crystal satisfies an objective standard of reasonableness.
Defendant argues that counsel should have impeached Crystal
with her grand jury testimony in which she stated that the only
injuries Kevin had prior to arriving at defendant's home were "two
small bumps." We do not follow defendant's logic. At trial,
Crystal testified that, prior to arriving at defendant's home,
Kevin bumped his head twice at Crystal's mother's house. Thus,
Crystal's trial testimony was consistent with her grand jury
testimony. No cause for impeachment existed.
Next, defendant argues his counsel was ineffective for failing
to object to Doctor Donoghue's testimony that wounds on Kevin's
left arm were indicative of a bite mark. We disagree. Given the
evidence presented at trial, there is no indication that the
outcome of the trial would have been different had counsel objected
to the testimony.
Defendant also asserts that his counsel's cross-examination of
Doctor Donoghue was "totally inane," because the cross-examination
comprised only three pages of the record. However, effective
advocacy cannot be measured by the number of pages of cross-
examination. People v. Williams, 139 Ill. 2d 1, 19 (1990).
Defendant further faults counsel for asking no "legitimate
questions" during the cross-examination and for failing to question
Doctor Donoghue about the evidence of prior physical abuse of
Kevin. Our review of the record indicates that counsel elicited
testimony from Doctor Donoghue that many of Kevin's injuries were
more than three months old; said testimony bolstered counsel's
attempt to show that someone other than defendant may have abused
Kevin in the past and perhaps caused his death. Accordingly, we
find counsel's cross-examination of Doctor Donoghue satisfied an
objective standard of reasonableness.
Next, defendant argues his counsel was ineffective for
conceding during closing argument that defendant was guilty of
involuntary manslaughter. In support, defendant relies on People
v. Hattery, 109 Ill. 2d 449 (1985). In Hattery, defendant
pleaded not guilty to murder charges. Hattery, 109 Ill. 2d at 458.
However, at trial, his counsel admitted defendant's guilt in
opening statements, advanced no theory of defense, and presented no
evidence or closing argument. Hattery, 109 Ill. 2d at 458-59.
Instead, counsel attempted to preclude imposition of the death
penalty by developing on cross-examination that defendant was
compelled to kill the victim. Hattery, 109 Ill. 2d at 459. Our
supreme court held that counsel's trial strategy was "totally at
odds" with defendant's plea of not guilty and that there was no
evidence defendant consented to his counsel's strategy. Hattery,
109 Ill. 2d at 464. The court further held that "[c]ounsel may not
concede his client's guilt in the hope of obtaining a more lenient
sentence where a plea of not guilty has been entered, unless the
record adequately shows that defendant knowingly and intelligently
consented to his counsel's strategy." Hattery, 109 Ill. 2d at 465.
The court found that counsel's actions presented an exceptional
circumstance in which prejudice to his client is presumed, and the
two-part Strickland test need not be applied. Hattery, 109 Ill. 2d
at 461-65.
However, in People v. Johnson, 128 Ill. 2d 253 (1989), the
supreme court narrowed Hattery, holding that defense counsel's
concession of guilt is not per se ineffective assistance such that
the Strickland test may be forsaken. Rather, defendant can
establish per se ineffectiveness only if he shows that defense
counsel "entirely failed to subject the prosecution's case to
meaningful adversarial testing." Johnson, 128 Ill. 2d at 270; see
also People v. Combs, 206 Ill. App. 3d 217, 223 (1990); People v.
Campos, 227 Ill. App. 3d 434, 447 (1992). If defendant fails to do
so, he must satisfy the Strickland test by proving that counsel's
deficiencies were objectively unreasonable and prejudicial to him.
Campos, 227 Ill. App. 3d at 447.
In the present case, the evidence was overwhelming that Kevin
died as a result of injuries inflicted only hours before his death,
when he was alone with defendant. Defendant also confessed to
hitting Kevin on the morning of his death. Faced with this
evidence, counsel made a reasonable decision to concede defendant's
guilt to a lesser offense, involuntary manslaughter, in an attempt
to gain a shorter sentence. In support of the involuntary
manslaughter defense, counsel elicited testimony from defendant
that he hit Kevin in order to move him out of the way of some
furniture and that he meant Kevin no harm. Defendant also elicited
testimony from Crystal that she had never seen defendant
intentionally harm her child. Further, defendant vigorously cross-
examined prosecution witnesses, voiced appropriate objections, and
probed the State's case for weaknesses. Thus, defendant has not
shown that counsel failed to subject the prosecution's case to
meaningful adversarial testing; to the contrary, the record
indicates that counsel provided defendant with objectively
reasonable representation. Accordingly, we find no ineffective
assistance.
Defendant also argues that counsel had "no theory of defense."
We disagree. As discussed above, counsel first tried to establish
that someone other than defendant may have been responsible for
Kevin's death, and when the overwhelming evidence indicated
otherwise, counsel opted to argue for involuntary manslaughter.
Counsel's performance was objectively reasonable.
Next, we review defendant's allegations of ineffective
assistance of counsel during sentencing. First, defendant claims
counsel was ineffective for failing to advise his co-counsel that
the State was seeking the death penalty for defendant. We find no
ineffective assistance, as the court did not impose the death
penalty in this case, and therefore defendant suffered no prejudice
from defense counsel's conduct.
Next, defendant argues his counsel was ineffective for failing
to present mitigating evidence at sentencing. However, our supreme
court has held that "[m]itigating evidence can be double-edged, and
trial counsel may feel that the risks in presenting potentially
mitigating evidence are too high. *** [T]his court should defer to
the trial counsel's decision unless there is proof that he failed
to present mitigating evidence due to his failure to properly
investigate and prepare the defense." People v. Steidl, 142 Ill. 2d 204, 249 (1991). Nothing in the record indicates counsel here
failed to properly investigate potential mitigating evidence.
Further, even assuming counsel was deficient in failing to
present mitigating evidence, defendant cannot show that he suffered
prejudice as a result, since most of the mitigation evidence was
contained in the presentence report read by the judge. See People
v. Griffin, 178 Ill. 2d 65, 87 (1997).
Defendant's final claim of ineffective assistance concerns his
counsel's failure to file a motion to reconsider his sentence. We
find no ineffective assistance, as nothing in the record indicates
such a motion would have succeeded. See our discussion of
defendant's sentencing, infra.
Next, defendant argues we should reverse his conviction
because the trial court evidenced personal bias against him.
Although defendant failed to raise this issue in his posttrial
motion, application of the waiver rule is less rigid where the
basis for the objection is the conduct of the trial judge. People
v. Nevitt, 135 Ill. 2d 423, 455 (1990). Therefore, we consider the
issue on its merits.
The right of a defendant to an unbiased trier of fact "is
rooted in the constitutional guaranty of due process of law and
entitles a defendant to a fair and impartial trial before a court
which proceeds, not arbitrarily or capriciously, but upon inquiry,
and renders judgment only after trial." People v. Phuong, 287
Ill. App. 3d 988, 993 (1997), quoting People v. Eckert, 194 Ill.
App. 3d 667, 673 (1990). Accordingly, when a judge displays bias
against defendant, reversal is required. Phuong, 287 Ill. App. 3d
at 993.
Defendant contends the trial court evidenced its bias when it
made the following comment while finding him guilty:
"A brutal vicious beating is what occurred here and
that's all. That is all that occurred here. The
doctor said this child suffered multiple repetitive
blows to his abdomen and chest. This child's heart
was torn. This child's liver was torn. This
child's rectum was torn. Everything inside of this
child that could be torn was torn by this
defendant's brutal beating. It was a brutal,
vicious, malicious, animalistic kind of behavior
from a grown man to a helpless child."
The judge's comments accurately reflected the evidence
presented at trial rather than any preconceived notions or bias
toward defendant. We find no error.
Defendant also complains of a subsequent comment made by the
judge to defendant's mother, who was in the court room:
"I mean this is just for the mother of the
defendant who was in court because she did not hear
the doctor's testimony. This young man beat this
child to the point where the doctor said it was
comparable to the child being thrown out of a third
floor window or being involved in the [sic] car
accident. He beat the hell out of this child."
These comments do not reflect bias or prejudice toward
defendant. Rather, they were made in an attempt by the trial judge
to explain her ruling to defendant's mother, who apparently was not
present during the medical examiner's testimony. We find no error.
Next, defendant argues the State failed to prove he acted with
any of the mental states specified in the murder statute.
Defendant argues the evidence showed he acted recklessly and asks
us to reduce his conviction to involuntary manslaughter.
When considering a challenge to the sufficiency of the
evidence, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crimes beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985).
Defendant here was charged with the forms of murder defined in
sections 9-1(a)(1) and (a)(2) of the Criminal Code of 1961
(Code)(720 ILCS 5/9-1(a)(1), (a)(2) (West 1996)). The statute
states:
"A person who kills an individual without
lawful justification commits first degree murder
if, in performing the acts which cause the death:
(1) he either intends to kill or do great
bodily harm to that individual or another, or knows
that such acts will cause death to that individual
or another; or
(2) he knows that such acts create a strong
probability of death or great bodily harm to that
individual or another." 720 ILCS 5/9-1(a)(1),
(a)(2) (West 1996).
Defendant argues that the evidence failed to establish that he
intended to kill or cause Kevin great bodily harm, or that he knew
his acts would cause death or would create a strong probability of
death or great bodily harm to Kevin. We disagree.
The requisite mental state may be inferred from defendant's
conduct and the circumstances surrounding his commission of the
crime. People v. Tye, 141 Ill. 2d 1, 15 (1990). "Disparity in
size and strength between the defendant and the victim and the
nature and extent of the victim's injuries are relevant
circumstances in ascertaining whether the defendant possessed the
necessary mental state." Tye, 141 Ill. 2d at 15-16.
Here, defendant was an 18-year-old male, about 6 feet tall and
180 pounds. The victim, Kevin, was a 23-month-old baby, 33.4
inches in length and weighing 28.4 pounds. The evidence
established that Kevin died of multiple injuries due to blunt
trauma, and the injuries were of a type seen in an automobile
accident or in a child who had fallen out of a third-story window.
Given the disparity in size between defendant and Kevin, the extent
of Kevin's injuries and the force needed to cause them, we conclude
that the trial judge could infer that defendant acted with the
necessary mental state to support a conviction for first-degree
murder.
We also note that the evidence established that the injuries
were inflicted at a time when Kevin was home alone with defendant.
Further, defendant admitted striking Kevin. Taking the evidence in
the light most favorable to the prosecution, any rational trier of
fact could find defendant guilty of murder beyond a reasonable
doubt.
Next, defendant argues the trial court abused its discretion
during sentencing when it relied on a fact not supported by the
evidence, specifically, that defendant administered karate chops to
Kevin. Defendant asks us to vacate his 60-year sentence and remand
for a new sentencing hearing.
Defendant waived this issue by failing to file a
postsentencing motion. People v. Reed, 177 Ill. 2d 389 (1997).
However, even addressing the issue on its merits, we find no cause
to disturb the sentence imposed by the trial judge.
When we can determine from the record that the reliance on the
improperly considered aggravating factor was so insignificant that
it did not lead to a greater sentence, remandment is not required.
People v. Bourke, 96 Ill. 2d 327, 332 (1983). Here, the trial
judge did wrongly state that the evidence showed defendant karate
chopped Kevin. However, the record indicates that the weight
placed on the wrongly considered factor did not result in a greater
sentence. Rather, the trial judge gave defendant a 60-year
sentence based on the "tremendous force [used] to beat this child
to death," the "brutality involved in this case," and defendant's
lack of remorse. Said considerations were amply supported in the
trial record. We find no abuse of discretion.
Next, defendant argues the "cumulative effect" of the errors
denied him a fair trial. We reject this argument, as defendant is
rearguing the same alleged errors that we have already found do not
necessitate a new trial. See People v. Adams, 283 Ill. App. 3d
520, 527 (1996).
Finally, we address defendant's argument that we must vacate
one of his murder convictions. Defendant was charged with and
convicted of murder under sections 9-1(a)(1) and (a)(2) of the
Code. 720 ILCS 5/9-1(a)(1), (a)(2) (West 1996). However,
defendant cannot be convicted of more than one murder arising out
of the same physical act. People v. Pitsonbarger, 142 Ill. 2d 353,
377 (1990). When multiple murder convictions have been entered for
the same act, the less culpable conviction must be vacated. People
v. Oaks, 169 Ill. 2d 409, 471 (1996). A murder conviction under
section 9-1(a)(2) involves a less culpable mental state than a
conviction under section 9-1(a)(1). See Pitsonbarger, 142 Ill. 2d
at 378. Therefore, we affirm defendant's conviction under section
9-1(a)(1) and vacate defendant's conviction under section 9-
1(a)(2).
For the foregoing reasons, we affirm defendant's conviction
under section 9-1(a)(1) and vacate his conviction under section 9-
1(a)(2).
Affirmed in part and vacated in part.
BUCKLEY, P.J., and GALLAGHER, J., concur.
July 27, 1998
No. 1-96-3899
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
KEITH REED,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
Honorable
Bertina Lampkin,
Judge Presiding.
JUSTICE O'BRIEN delivered the opinion of the court:
Following a bench trial, defendant, Keith Reed, was convicted
of two counts of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2)
(West 1996)) and sentenced to 60-years' imprisonment. On appeal,
he contends: (1) he was denied his sixth amendment right to
counsel when the trial court ordered his attorney to withdraw from
the case; (2) his trial counsel provided ineffective assistance;
(3) the trial court evidenced personal bias against him; (4) the
State failed to prove him guilty beyond a reasonable doubt; (5) the
trial court abused its discretion when sentencing him; (6) the
cumulative effect of the errors denied him a fair trial; and (7)
one of his two murder convictions should be vacated. We affirm
defendant's conviction under section 9-1(a)(1), and vacate his
conviction under section 9-1(a)(2).
At trial, Crystal Thomas testified she met defendant on May
23, 1992, and they became boyfriend and girlfriend. Crystal had a
21-month-old son, Kevin, by a previous relationship, and she and
Kevin sometimes spent the night with defendant at his house on 5927
South Carpenter.
Crystal testified that in June 1992, her sister gave
defendant's phone number to Kevin's father, who proceeded to call
defendant's house on numerous occasions in order to speak with
Crystal. Defendant apparently did not like Kevin's father calling
Crystal, and after one such phone conversation between Kevin's
father and Crystal, defendant threw some furniture and slammed a
door.
On July 20, 1992, Kevin was playing in the bedroom of
Crystal's mother's house. As he jumped up and down on the bed,
Kevin tumbled over and hit his head on a window pane. Crystal
applied some ice to Kevin's head, after which he resumed his play.
Later that afternoon, Kevin hit his head on a glass table in
Crystal's mother's living room. Crystal applied some cold water to
stop the bleeding, and Kevin again resumed his play.
Later that evening, Crystal and Kevin went to defendant's
house, where they spent the next five days. On July 21 and July
22, 1992, Crystal noticed some new injures to Kevin, specifically,
a discoloration of his eye and a little cut on the side of his lip.
She asked defendant about the cause of Kevin's injuries, and
defendant responded that the cut lip was from a "rug burn" and the
discolored eye resulted from some bacteria or dust.
On July 24, 1992, Crystal and defendant had an argument
concerning the frequent phone calls from Kevin's father. Defendant
wanted the phone calls to stop, and he wanted to know whether
Crystal intended to get back together with Kevin's father. During
the argument, defendant knocked over some items that were sitting
on the dining room table, punched and broke a fan, and swung a
trophy around.
Later that evening, Crystal gave Kevin a bath. She did not
notice any injuries to his chest or abdomen at that time. Kevin
slept in defendant's room that night, while defendant and Crystal
slept in the living room.
The following morning, July 25, 1992, Kevin woke up, walked
into the living room, and sat down next to Crystal and defendant.
Crystal testified that Kevin had no problem walking out from the
bedroom.
Defendant then brought Kevin back into defendant's bedroom,
where Kevin went back to sleep. Crystal took a bath and got ready
to run some errands. Before leaving, she checked on Kevin, who was
sleeping in only a diaper. Crystal did not notice any marks on
Kevin's chest, nor did she notice anything wrong with him.
Crystal returned to the house around 3 p.m. and was met there
by defendant's brother, who told her that Kevin was at Wyler's
Children's Hospital. Crystal went to the hospital, where she was
told that her baby was in surgery. A policeman then took her to
39th and California, where they questioned her and told her that
Kevin was dead.
Officer Joseph Battaglia testified that at about 12:40 p.m. on
July 25, 1992, he received a call about a possible child abuse
victim at 5927 South Carpenter. He arrived at the house within two
minutes of the call. After speaking with defendant's brother and
another officer, Battaglia drove to Wyler's Children's Hospital,
where he spoke with defendant about the child, Kevin.
Defendant explained to Officer Battaglia that Kevin was his
girlfriend's (Crystal Thomas') child, and that Crystal and Kevin
had been staying with him that week. Defendant told Officer
Battaglia that Crystal went shopping that morning at about 9 a.m.
and left Kevin with defendant. While Crystal was out, Kevin began
to "look sick," so defendant's brother called paramedics via 911.
Officer Battaglia asked defendant whether he had ever seen Crystal
harm Kevin in any fashion, and defendant responded negatively.
Detectives John McCann and Louis Caesar testified that around
2 p.m. on July 25, 1992, they received an assignment to proceed to
Wyler's Children's Hospital regarding a seriously injured child,
possibly the result of child abuse. At the hospital, the
detectives spoke with Officer Battaglia and learned that Kevin was
receiving medical treatment and that defendant was present in the
hospital.
The detectives interviewed defendant in a police room in the
hospital. Defendant told the detectives that around 9:30 a.m. on
July 25, Crystal left his house, leaving defendant alone with
Kevin. The baby was asleep when Crystal left.
Defendant further told the detectives that Kevin woke up
around noon, and defendant went to change his diaper. At that
time, defendant noticed that Kevin was having trouble walking.
Defendant picked up Kevin, carried him to a rocking chair, and gave
him a bottle. Defendant noticed that Kevin's eyes did not look
right and that he appeared "spacey."
Defendant called his brother, who was a former medical
technician. The brother came to the house, looked at Kevin, and
told defendant that Kevin appeared to have problems with his
abdomen and that his hands were white, cold, and clammy. The
brother told defendant to call the paramedics. The paramedics
arrived and took Kevin to the hospital.
Detectives McCann and Caesar testified they checked on Kevin
after talking to defendant. The doctor showed them Kevin's body;
he had been pronounced dead around 2:30 p.m. When viewing the
body, Detective Caesar noticed swelling on the back of Kevin s
head, a laceration of the lip, a dark eye, and bruises across his
chest and abdomen.
Detectives McCann and Caesar testified they later took
defendant to the police station at 39th and California, where they
spoke with him in an interview room on the third floor. Defendant
told the detectives that he had called the paramedics because Kevin
"looked funny" when he woke up. Detective Caesar asked about the
injuries to Kevin's lip and the back of his head, and defendant
responded that Crystal had told him that Kevin hit his head on a
table and while playing on a bed at her mother's house. Defendant
stated he did not know how Kevin suffered the injuries that caused
his death.
Detectives McCann and Caesar attended Kevin's autopsy on July
26, which was performed by Doctor Edmond Donoghue. Doctor Donoghue
testified that he found extensive bruising on Kevin's head, chest,
abdomen, arms, and legs. There was also a large area of
hemorrhage beneath the scalp on the right and left side of the
head. Doctor Donoghue found 14 internal injuries in the chest and
abdominal cavity. Doctor Donoghue testified that Kevin died of
multiple injuries due to blunt trauma and that the injuries were of
the type seen in an automobile accident or in a child who had
fallen out of a third-story window. Doctor Donoghue opined that
Kevin's internal injuries happened only hours before his death.
Detectives McCann and Caesar testified they thereafter
brought defendant back in for questioning. Around 6 p.m. on July
26, Detective Caesar spoke with defendant and asked if he knew how
Kevin had been injured. Defendant told Detective Caesar that on
July 25, 1992, when he brought Kevin from the front room to the
bedroom, Kevin slipped out of his hand. Defendant caught Kevin on
his forearm "kind of roughly"; defendant said that Kevin might have
hurt his abdomen then. Defendant also told Detective Caesar that
he played with Kevin later that morning by tossing him up in the
air. Defendant opined that Kevin could have been injured then as
well.
Defendant further told Detective Caesar that he had rearranged
some furniture in his house on July 25. At one point, defendant
retrieved a dolly from the basement in order to move the
entertainment center. Kevin got behind him, so defendant slapped
Kevin in the chest with the back of his right hand. Kevin fell
into the couch and whimpered a little bit.
Defendant told Detective Caesar that he later noticed Kevin by
a table, playing with some books and a prom mug. When Kevin
grabbed the mug, defendant again back handed him on the chest,
causing Kevin to fall down. Defendant then picked Kevin up and
placed him on a couch. Around noon, he prepared a bath for Kevin.
However, when defendant tried to walk Kevin toward the bath, Kevin
was unable to walk correctly; he kept falling down. Defendant then
called his brother, who came over and said the baby did not look
right. Specifically, defendant's brother stated that Kevin's
abdomen looked abnormal, that he was pale, and that defendant
should call the paramedics.
Detective Caesar testified that he asked defendant about the
red marks on Kevin's chest. Defendant replied that he did not
notice any marks on Kevin's chest until after he hit him.
Assistant State's Attorney Steven Rosenblum testified he spoke
with defendant at about 8 p.m. on July 26 in an interview room on
the third floor of the police station. Defendant told Rosenblum
that Crystal had left him alone with Kevin on July 25. After
Crystal left, defendant began rearranging some furniture in his
living room. Kevin came into the living room, and defendant played
with him by tossing him up in the air and spinning him around a
little bit. After he stopped playing with Kevin, defendant went
back to moving the furniture. At one point, defendant got out a
dolly and was moving the entertainment center. Kevin got in the
way, so defendant hit Kevin hard in the chest area with the back of
his hand in order to move him out of the way.
Defendant further told Rosenblum that he later saw Kevin
playing with some prom glasses and a trophy that were on a table.
Defendant did not want Kevin playing with those items, so again he
hit Kevin hard in the chest with the back of his hand. Defendant
then took Kevin into the bedroom, and Kevin fell asleep. About an
hour later, when defendant tried to wake Kevin so he could take a
bath, Kevin appeared sluggish and had a strange look on his face.
Defendant called his brother, who came over, looked at Kevin, and
told defendant that Kevin had some internal bleeding and cold,
pale, clammy hands. Defendant called an ambulance for Kevin.
Defendant testified on his own behalf that he was home alone
with Kevin on the morning of July 25, 1992. When Kevin awoke,
defendant played with him by picking him up, swinging him around,
and catching him. However, defendant soon noticed that Kevin did
not appear to be feeling well, so defendant then left him alone and
started moving some furniture. As defendant was moving his
entertainment center toward a wall, he noticed that Kevin was
behind him. To keep Kevin from being injured by the entertainment
center, defendant pushed Kevin out of the way. Defendant testified
he did not push him hard; rather, "it was more like a reflex, a
real quick blow to get him out of the way." After defendant hit
him, Kevin fell down, then got back up.
Defendant testified that he later noticed Kevin playing with
a prom glass and a couple of trophies. Defendant took the prom
glass and trophies away from Kevin, picked him up, and set him on
a couch. Defendant gave Kevin some milk and cookies, and Kevin
fell asleep on the couch. Defendant finished cleaning while Kevin
slept.
Defendant woke Kevin so he could take a bath. Kevin took a
couple of steps toward the bathroom, then fell down. Defendant
picked Kevin up and noticed that he looked "spaced in the face."
Defendant called his brother, who came over and said Kevin had
internal bleeding. Defendant called an ambulance.
Defendant testified that he never intended to hurt Kevin at
any time.
On cross-examination, defendant acknowledged an argument he
had with Crystal after Kevin's father called defendant's house and
threatened to shoot him. Defendant also testified that the night
before Kevin's death, he and Crystal had a "disagreement" about
their relationship.
Defendant testified that when he hit Kevin to push him out of
the way of the entertainment center, Kevin scooted back and fell on
his bottom, but did not hit the wall or couch. Defendant denied
telling Detective Caesar or Assistant State's Attorney Rosenblum
that he hit Kevin for playing with the prom glass. Defendant also
denied seeing any red marks on Kevin's chest after he hit Kevin.
The trial court found defendant guilty of two counts of first-
degree murder and sentenced him to 60-years' imprisonment.
Defendant appeals.
First, defendant argues he was deprived of his sixth amendment
right to counsel when the trial court ordered his attorney, Jack
Rogdon, to withdraw from the case prior to trial. Defendant waived
this issue by failing to raise it in his post trial motion. People
v. Enoch, 122 Ill. 2d 176, 186 (1988). However, even addressing
the issue on its merits, we find no error.
The court's order came about as a result of a pretrial motion
to suppress filed by Rogdon. In that motion to suppress, Rogdon
stated that defendant had requested to speak with his attorney
(Rogdon) when the detectives and assistant State's Attorney
questioned him; that Rogdon was present at the police station
during a portion of the interrogation; and that Rogdon was not
permitted to see defendant. The State subsequently made an oral
motion to disqualify Rogdon because he was a potential witness at
the hearing on the motion to suppress. The State relied on Rule 5-
102 of the Illinois Code of Professional Responsibility, which
provided in relevant part:
"If a lawyer learns after undertaking employment in
contemplated or pending litigation or if it is obvious that he
or a lawyer in his firm ought to be called as a witness on
behalf of his client, he shall withdraw from the conduct of
the trial ***." 107 Ill. 2d R. 5-102.
Rogdon vigorously objected to the State's motion, arguing that
his testimony would be unnecessary because there were other persons
present at the police station who could verify the allegations in
the motion. The trial court was skeptical of this argument, noting
that Rogdon was the best witness to testify as to whether the
police prevented him from speaking to defendant. The trial court
also was wary of the possibility that, if it allowed Rogdon to stay
on the case, he would question the defense witnesses at trial about
whether the police had prevented defendant from speaking with him.
The court thought this unacceptable, since Rogdon would be putting
his "credibility at issue" and he could not be cross-examined.
Accordingly, over Rogdon's objections, the trial court ordered him
to withdraw from the case.
Before examining the propriety of the trial court's order,
first we must determine the appropriate disciplinary rule governing
Rogdon's conduct. The State argued that section 5-102 of the
Illinois Code of Professional Responsibility (Code) necessitated
his removal from the case. However, the Illinois Supreme Court
repealed the Code in 1990 and replaced it with the Illinois Rules
of Professional Conduct (Rules). See 134 Ill. 2d art. VIII. Thus,
the Rules were in effect when the State moved for Rogdon's
withdrawal, and accordingly our analysis begins with the Rules, as
opposed to the Code.
Rule 3.7 is applicable here and states in relevant part:
"A lawyer shall not accept or continue employment in
contemplated or pending litigation if the lawyer knows or
reasonably should know that the lawyer may be called as a
witness on behalf of the client ***." 134 Ill. 2d R. 3.7.
During argument on the motion to disqualify, the State argued
that it might call Rogdon as a witness, since he was present at the
police station at the time of defendant's interrogation and could
testify as to whether the police officers refused to let him see
defendant. Under such circumstances, Rule 3.7 mandated Rogdon's
withdrawal, and in the face of his refusal to so withdraw, the
trial court acted within its discretion when it ordered him off the
case.
Defendant argues that we should not consider Rule 3.7's effect
on this case, since said rule was not raised in the trial court.
We reject this argument, as we may affirm on any basis in the
record (Monco v. Janus, 222 Ill. App. 3d 280, 299 (1991)), and Rule
3.7 supports affirmance of the trial court's order.
Defendant also argues that the trial court should have held a
hearing before ordering Rogdon to withdraw. In support, defendant
cites People v. Holmes, 141 Ill. 2d 204 (1990), and People v.
Kubat, 94 Ill. 2d 437 (1983). In Holmes, the State filed a
pretrial motion to disqualify defendant's attorney because of a
conflict of interest. Holmes, 141 Ill. 2d at 212-13. The trial
court conducted a hearing on the motion, determined a conflict of
interest existed, and removed the attorney from the case. Holmes,
141 Ill. 2d at 213. Our supreme court affirmed. In Kubat, the
defendant filed a pretrial motion for change of counsel due to
counsel's alleged ineffective assistance and a conflict of
interest. Kubat, 94 Ill. 2d at 480-81. The trial court held two
hearings, determined that defendant's allegations were
substantially unsupported, and denied the motion. Kubat, 94 Ill. 2d at 481. Our supreme court affirmed.
Although the trial court in Holmes and Kubat conducted
hearings before determining whether to disqualify counsel, neither
case held that such hearings are mandatory where, as here, the
pleadings on file clearly indicate that counsel is a potential
witness on behalf of his client. Further, the trial court here
did not simply rely on the pleadings; it also heard argument from
both the State and defense regarding Rogdon's potential appearance
as a witness prior to making its ruling. Said argument, along with
the motion to suppress filed by Rogdon, convinced the court that
Rogdon must withdraw. As discussed above, we find no abuse of
discretion in the court's determination.
Next, defendant argues that the trial counsel who replaced
Rogdon provided ineffective assistance during the hearing on his
motion to suppress, at trial, and at sentencing. The State notes
that defendant did not raise this issue in his posttrial motion.
However, defendant does not waive his ineffective assistance of
counsel claim by failing to raise it in a posttrial motion where,
as here, the posttrial motion was prepared and presented by the
same attorney who represented defendant at trial. People v.
Keener, 275 Ill. App. 3d 1, 5 (1995). Therefore, we address the
issue on its merits.
To establish a claim of ineffective assistance, defendant must
show that counsel's performance fell below an objective standard of
reasonableness and that counsel's deficient performance prejudiced
defendant. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504,
525 (1984). To establish that counsel was ineffective, defendant
must overcome the strong presumption that the challenged conduct
falls within the realm of trial strategy. People v. Randle, 277
Ill. App. 3d 788, 797 (1995).
First, we address counsel's performance during the hearing on
the motion to suppress. Counsel presented two witnesses at the
hearing: defendant and his brother, Wilson. Wilson testified that
in July 1992, he was living with defendant at 5927 South Carpenter.
On July 25, 1992, defendant's girlfriend's son, Kevin, became sick.
They called an ambulance, which transported Kevin to Wyler's
Children's Hospital. Defendant accompanied Kevin to the hospital,
and Wilson went to the hospital later that day to be with
defendant.
Wilson testified that while in the hospital emergency room
around 1 p.m., he spoke with Detective McCann and asked him if
defendant was under arrest and needed an attorney. Detective
McCann said "no."
About 15 or 20 minutes later, Wilson spoke with Detective
Caesar in the hospital parking lot. Defendant was present during
this conversation. Following the conversation, defendant
accompanied Detectives McCann and Caesar to the police station.
Wilson testified he went to the police station and talked with
Detective McCann at around 3 or 4 p.m. Wilson asked Detective
McCann whether defendant was under arrest and needed an attorney.
Detective McCann stated that defendant was not under arrest and did
not need an attorney. However, Detective McCann would not let
Wilson see defendant.
Wilson testified he next saw defendant in the late evening on
July 25, in the police station parking lot. Defendant was with
Detectives McCann and Caesar, and the three of them were about to
go to another facility so that defendant could take a polygraph
test. Defendant was not handcuffed. Wilson asked to go with
defendant, but the detectives refused. Defendant returned home
around 10 p.m.
Wilson testified that Detectives McCann and Caesar came to his
house around 11 a.m. on Sunday, July 26. Detective McCann told
Wilson that they wanted to ask defendant a couple of more questions
so that they could wrap up the investigation. Detective McCann
also stated that defendant was not under arrest and did not need an
attorney. Defendant then left the house with the detectives.
Defendant testified on his own behalf that after he arrived at
the hospital on July 25, uniformed police officers directed him to
move into a police room. While in that room, defendant spoke with
Detectives McCann and Caesar about Kevin. Defendant testified that
he voluntarily spoke with Detectives Caesar and McCann while in the
hospital and that they did not give him Miranda warnings at that
time.
Defendant testified he then voluntarily left the hospital and
went with the detectives in their car to the police station.
Defendant was not handcuffed, and the detectives did not give him
Miranda warnings in the squad car or after they arrived at the
police station. At the station, the detectives questioned
defendant about the circumstances surrounding Kevin's death.
Defendant testified that the detectives asked him if he would
take a polygraph test. Defendant said "yes." Defendant left the
police station around 5 p.m. with the detectives and Crystal Thomas
in an unmarked police car. Defendant was not handcuffed or given
Miranda warnings. They proceeded to 11th and State, where
defendant and Crystal took a polygraph examination. Defendant
testified that before taking the polygraph test, he signed a
consent form containing his Miranda rights.
The detectives then transported defendant back to the police
station at 39th and California. After one of the detectives
retrieved a camera, they all proceeded to Crystal's house.
Defendant was not handcuffed. The detectives then dropped
defendant off at his home.
Defendant testified that the detectives arrived at his house
the next day, July 26, at around 1 p.m. The detectives told
defendant that they had a few more questions for him, and they
asked him to come to the police station. Defendant testified he
voluntarily accompanied the detectives to the police station and
that he was not handcuffed.
Defendant testified he spoke with Assistant State's Attorney
Rosenblum, who advised him of his Miranda rights. Defendant
testified he told Rosenblum that he was at the police station
voluntarily.
The court then questioned defendant, asking him whether he had
at all times voluntarily accompanied the detectives to the police
station. Defendant said "yes."
Following defendant's testimony, defense counsel argued that
since the detectives failed to give defendant his Miranda warnings
at the hospital or when they took him to the police station on July
25, the court should suppress any statements he made that day.
The trial court denied the motion to suppress, finding that
defendant voluntarily went to the police station on July 25 and,
therefore, the officers had no duty to give defendant Miranda
warnings.
On appeal, defendant argues his counsel was ineffective for
failing to elicit testimony that the police had denied defendant's
request to have an attorney present during questioning. We find no
ineffective assistance, as defendant has failed to overcome the
strong presumption that counsel's conduct was the result of trial
strategy; presumably, after interviewing the defendant and other
witnesses, counsel determined that defendant did not invoke his
right to counsel during any of the interrogation sessions.
Accordingly, counsel provided reasonable professional assistance by
proceeding on the theory that the detectives failed to give
defendant Miranda warnings.
Defendant also argues that his counsel was ineffective for
failing to file a motion to quash his arrest at the hospital on
July 25, based on a lack of probable cause. To prevail on his
claim, defendant must show that the trial court would have granted
the motion. People v. Bennett, 222 Ill. App. 3d 188, 201 (1991).
An arrest occurs when a person's freedom of movement has been
restrained by means of physical force or show of authority. In re
J.W., 274 Ill. App. 3d 951, 957-58 (1995). In determining whether
a person has been arrested, the relevant inquiry is whether a
reasonable, innocent person in his situation would conclude that he
was not free to leave. J.W., 274 Ill. App. 3d at 958. Factors to
be considered in determining whether an arrest occurred include the
presence or absence of a formal declaration of arrest and other
routine procedures associated with an arrest, such as handcuffing
and fingerprinting. People v. McClellan, 232 Ill. App. 3d 990, 999
(1992).
The testimony at the motion to suppress established that
defendant voluntarily spoke with Detectives McCann and Caesar at
the hospital and at the police station on July 25 and voluntarily
accompanied them to the police station at 39th and California, to
11th and State, and to Crystal's home. The detectives never
handcuffed defendant and returned him home on the night of July 25.
These facts were sufficient to show that the detectives did not
arrest defendant on July 25. It follows, then, that the trial
court would have denied a motion to quash arrest and, thus, counsel
was not ineffective for failing to file said motion. Bennett, 222
Ill. App. 3d at 201.
Defendant next argues his counsel was ineffective for not
attempting to have his inculpatory statements given on July 26
suppressed. We disagree, as trial counsel reasonably could have
concluded that no viable theory existed for suppressing the July 26
statements. First, defendant testified he voluntarily accompanied
the detectives to the police station on July 26. Second, Detective
McCann, Detective Caesar, and Assistant State's Attorney Rosenblum
testified they all advised defendant of his Miranda rights on July
26. Third, no evidence was presented that the detectives in any
way coerced defendant into making his statements. Accordingly,
counsel made a reasonable decision not to argue for the suppression
of the July 26 statements.
Defendant argues his counsel was ineffective for failing to
file any motions other than a motion to suppress, an answer to
discovery, and a motion for new trial. We reject defendant's
argument, as he fails to set forth with any specificity the other
motions counsel should have filed to effect a change in the outcome
of his case.
Next, we address defendant's allegations of ineffective
assistance immediately prior to and during trial. First, defendant
argues counsel was ineffective for failing to review the police
reports prior to trial. In support, defendant cites to a colloquy
that occurred after Officer Battaglia testified he spoke with
defendant at the hospital on July 25. When the prosecutor asked
Battaglia if defendant told him what happened earlier that day,
counsel objected, arguing that Battaglia had not given defendant
Miranda warnings before questioning him. The trial court asked
counsel why he had not filed a motion to suppress defendant's
statements to Battaglia, and counsel responded that this was the
first he had heard of such statements. The assistant State's
Attorney responded that defendant's statement to Officer Battaglia
was contained in the "very first police report counsel ever
received in this case." Counsel subsequently looked at the police
report in question and conceded that it contained defendant's
statement to Officer Battaglia. The trial court allowed Officer
Battaglia to testify about defendant's statement to him.
Counsel's failure to read the police report containing
defendant's statement to Officer Battaglia does not constitute
ineffective assistance, because defendant was not prejudiced
thereby. As recounted earlier in this opinion, defendant's
statement to Officer Battaglia was not incriminating; Battaglia
testified that defendant merely told him Kevin had begun to "look
sick" and that paramedics were called. Thus, since defendant's
statement to Officer Battaglia did not implicate him in Kevin's
death, counsel's failure to learn of the statement prior to trial
and have it suppressed did not constitute ineffective assistance.
See People v. Pecoraro, 144 Ill. 2d 1, 13 (1991) (court may dispose
of an ineffective assistance claim on the ground of lack of
sufficient prejudice without reaching the deficiency analysis).
Defendant argues that since counsel did not read the police
report containing defendant's statement to Officer Battaglia, he
probably did not read the other police reports in this case and,
thus, was ineffective. We disagree, as counsel indicated on the
record that he had reviewed the other police reports in this case
and was familiar with their contents, and defendant points to no
evidence to the contrary.
Defendant next contends his trial counsel provided ineffective
assistance by failing to adequately cross-examine Crystal Thomas
about the older injuries found on Kevin's body. In other words,
defendant contends that counsel should have attempted to establish
that Crystal, not defendant, abused Kevin. However, our review of
the record indicates that counsel did question Crystal about prior
injuries received by Kevin. Further, counsel elicited from Crystal
an admission that she had previously left Kevin in defendant's care
and that she had never seen defendant hit Kevin. Thus, counsel did
attempt to establish that someone other than defendant had hurt
Kevin, and therefore we find that counsel's cross-examination of
Crystal satisfies an objective standard of reasonableness.
Defendant argues that counsel should have impeached Crystal
with her grand jury testimony in which she stated that the only
injuries Kevin had prior to arriving at defendant's home were "two
small bumps." We do not follow defendant's logic. At trial,
Crystal testified that, prior to arriving at defendant's home,
Kevin bumped his head twice at Crystal's mother's house. Thus,
Crystal's trial testimony was consistent with her grand jury
testimony. No cause for impeachment existed.
Next, defendant argues his counsel was ineffective for failing
to object to Doctor Donoghue's testimony that wounds on Kevin's
left arm were indicative of a bite mark. We disagree. Given the
evidence presented at trial, there is no indication that the
outcome of the trial would have been different had counsel objected
to the testimony.
Defendant also asserts that his counsel's cross-examination of
Doctor Donoghue was "totally inane," because the cross-examination
comprised only three pages of the record. However, effective
advocacy cannot be measured by the number of pages of cross-
examination. People v. Williams, 139 Ill. 2d 1, 19 (1990).
Defendant further faults counsel for asking no "legitimate
questions" during the cross-examination and for failing to question
Doctor Donoghue about the evidence of prior physical abuse of
Kevin. Our review of the record indicates that counsel elicited
testimony from Doctor Donoghue that many of Kevin's injuries were
more than three months old; said testimony bolstered counsel's
attempt to show that someone other than defendant may have abused
Kevin in the past and perhaps caused his death. Accordingly, we
find counsel's cross-examination of Doctor Donoghue satisfied an
objective standard of reasonableness.
Next, defendant argues his counsel was ineffective for
conceding during closing argument that defendant was guilty of
involuntary manslaughter. In support, defendant relies on People
v. Hattery, 109 Ill. 2d 449 (1985). In Hattery, defendant
pleaded not guilty to murder charges. Hattery, 109 Ill. 2d at 458.
However, at trial, his counsel admitted defendant's guilt in
opening statements, advanced no theory of defense, and presented no
evidence or closing argument. Hattery, 109 Ill. 2d at 458-59.
Instead, counsel attempted to preclude imposition of the death
penalty by developing on cross-examination that defendant was
compelled to kill the victim. Hattery, 109 Ill. 2d at 459. Our
supreme court held that counsel's trial strategy was "totally at
odds" with defendant's plea of not guilty and that there was no
evidence defendant consented to his counsel's strategy. Hattery,
109 Ill. 2d at 464. The court further held that "[c]ounsel may not
concede his client's guilt in the hope of obtaining a more lenient
sentence where a plea of not guilty has been entered, unless the
record adequately shows that defendant knowingly and intelligently
consented to his counsel's strategy." Hattery, 109 Ill. 2d at 465.
The court found that counsel's actions presented an exceptional
circumstance in which prejudice to his client is presumed, and the
two-part Strickland test need not be applied. Hattery, 109 Ill. 2d
at 461-65.
However, in People v. Johnson, 128 Ill. 2d 253 (1989), the
supreme court narrowed Hattery, holding that defense counsel's
concession of guilt is not per se ineffective assistance such that
the Strickland test may be forsaken. Rather, defendant can
establish per se ineffectiveness only if he shows that defense
counsel "entirely failed to subject the prosecution's case to
meaningful adversarial testing." Johnson, 128 Ill. 2d at 270; see
also People v. Combs, 206 Ill. App. 3d 217, 223 (1990); People v.
Campos, 227 Ill. App. 3d 434, 447 (1992). If defendant fails to do
so, he must satisfy the Strickland test by proving that counsel's
deficiencies were objectively unreasonable and prejudicial to him.
Campos, 227 Ill. App. 3d at 447.
In the present case, the evidence was overwhelming that Kevin
died as a result of injuries inflicted only hours before his death,
when he was alone with defendant. Defendant also confessed to
hitting Kevin on the morning of his death. Faced with this
evidence, counsel made a reasonable decision to concede defendant's
guilt to a lesser offense, involuntary manslaughter, in an attempt
to gain a shorter sentence. In support of the involuntary
manslaughter defense, counsel elicited testimony from defendant
that he hit Kevin in order to move him out of the way of some
furniture and that he meant Kevin no harm. Defendant also elicited
testimony from Crystal that she had never seen defendant
intentionally harm her child. Further, defendant vigorously cross-
examined prosecution witnesses, voiced appropriate objections, and
probed the State's case for weaknesses. Thus, defendant has not
shown that counsel failed to subject the prosecution's case to
meaningful adversarial testing; to the contrary, the record
indicates that counsel provided defendant with objectively
reasonable representation. Accordingly, we find no ineffective
assistance.
Defendant also argues that counsel had "no theory of defense."
We disagree. As discussed above, counsel first tried to establish
that someone other than defendant may have been responsible for
Kevin's death, and when the overwhelming evidence indicated
otherwise, counsel opted to argue for involuntary manslaughter.
Counsel's performance was objectively reasonable.
Next, we review defendant's allegations of ineffective
assistance of counsel during sentencing. First, defendant claims
counsel was ineffective for failing to advise his co-counsel that
the State was seeking the death penalty for defendant. We find no
ineffective assistance, as the court did not impose the death
penalty in this case, and therefore defendant suffered no prejudice
from defense counsel's conduct.
Next, defendant argues his counsel was ineffective for failing
to present mitigating evidence at sentencing. However, our supreme
court has held that "[m]itigating evidence can be double-edged, and
trial counsel may feel that the risks in presenting potentially
mitigating evidence are too high. *** [T]his court should defer to
the trial counsel's decision unless there is proof that he failed
to present mitigating evidence due to his failure to properly
investigate and prepare the defense." People v. Steidl, 142 Ill. 2d 204, 249 (1991). Nothing in the record indicates counsel here
failed to properly investigate potential mitigating evidence.
Further, even assuming counsel was deficient in failing to
present mitigating evidence, defendant cannot show that he suffered
prejudice as a result, since most of the mitigation evidence was
contained in the presentence report read by the judge. See People
v. Griffin, 178 Ill. 2d 65, 87 (1997).
Defendant's final claim of ineffective assistance concerns his
counsel's failure to file a motion to reconsider his sentence. We
find no ineffective assistance, as nothing in the record indicates
such a motion would have succeeded. See our discussion of
defendant's sentencing, infra.
Next, defendant argues we should reverse his conviction
because the trial court evidenced personal bias against him.
Although defendant failed to raise this issue in his posttrial
motion, application of the waiver rule is less rigid where the
basis for the objection is the conduct of the trial judge. People
v. Nevitt, 135 Ill. 2d 423, 455 (1990). Therefore, we consider the
issue on its merits.
The right of a defendant to an unbiased trier of fact "is
rooted in the constitutional guaranty of due process of law and
entitles a defendant to a fair and impartial trial before a court
which proceeds, not arbitrarily or capriciously, but upon inquiry,
and renders judgment only after trial." People v. Phuong, 287
Ill. App. 3d 988, 993 (1997), quoting People v. Eckert, 194 Ill.
App. 3d 667, 673 (1990). Accordingly, when a judge displays bias
against defendant, reversal is required. Phuong, 287 Ill. App. 3d
at 993.
Defendant contends the trial court evidenced its bias when it
made the following comment while finding him guilty:
"A brutal vicious beating is what occurred here and
that's all. That is all that occurred here. The
doctor said this child suffered multiple repetitive
blows to his abdomen and chest. This child's heart
was torn. This child's liver was torn. This
child's rectum was torn. Everything inside of this
child that could be torn was torn by this
defendant's brutal beating. It was a brutal,
vicious, malicious, animalistic kind of behavior
from a grown man to a helpless child."
The judge's comments accurately reflected the evidence
presented at trial rather than any preconceived notions or bias
toward defendant. We find no error.
Defendant also complains of a subsequent comment made by the
judge to defendant's mother, who was in the court room:
"I mean this is just for the mother of the
defendant who was in court because she did not hear
the doctor's testimony. This young man beat this
child to the point where the doctor said it was
comparable to the child being thrown out of a third
floor window or being involved in the [sic] car
accident. He beat the hell out of this child."
These comments do not reflect bias or prejudice toward
defendant. Rather, they were made in an attempt by the trial judge
to explain her ruling to defendant's mother, who apparently was not
present during the medical examiner's testimony. We find no error.
Next, defendant argues the State failed to prove he acted with
any of the mental states specified in the murder statute.
Defendant argues the evidence showed he acted recklessly and asks
us to reduce his conviction to involuntary manslaughter.
When considering a challenge to the sufficiency of the
evidence, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crimes beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985).
Defendant here was charged with the forms of murder defined in
sections 9-1(a)(1) and (a)(2) of the Criminal Code of 1961
(Code)(720 ILCS 5/9-1(a)(1), (a)(2) (West 1996)). The statute
states:
"A person who kills an individual without
lawful justification commits first degree murder
if, in performing the acts which cause the death:
(1) he either intends to kill or do great
bodily harm to that individual or another, or knows
that such acts will cause death to that individual
or another; or
(2) he knows that such acts create a strong
probability of death or great bodily harm to that
individual or another." 720 ILCS 5/9-1(a)(1),
(a)(2) (West 1996).
Defendant argues that the evidence failed to establish that he
intended to kill or cause Kevin great bodily harm, or that he knew
his acts would cause death or would create a strong probability of
death or great bodily harm to Kevin. We disagree.
The requisite mental state may be inferred from defendant's
conduct and the circumstances surrounding his commission of the
crime. People v. Tye, 141 Ill. 2d 1, 15 (1990). "Disparity in
size and strength between the defendant and the victim and the
nature and extent of the victim's injuries are relevant
circumstances in ascertaining whether the defendant possessed the
necessary mental state." Tye, 141 Ill. 2d at 15-16.
Here, defendant was an 18-year-old male, about 6 feet tall and
180 pounds. The victim, Kevin, was a 23-month-old baby, 33.4
inches in length and weighing 28.4 pounds. The evidence
established that Kevin died of multiple injuries due to blunt
trauma, and the injuries were of a type seen in an automobile
accident or in a child who had fallen out of a third-story window.
Given the disparity in size between defendant and Kevin, the extent
of Kevin's injuries and the force needed to cause them, we conclude
that the trial judge could infer that defendant acted with the
necessary mental state to support a conviction for first-degree
murder.
We also note that the evidence established that the injuries
were inflicted at a time when Kevin was home alone with defendant.
Further, defendant admitted striking Kevin. Taking the evidence in
the light most favorable to the prosecution, any rational trier of
fact could find defendant guilty of murder beyond a reasonable
doubt.
Next, defendant argues the trial court abused its discretion
during sentencing when it relied on a fact not supported by the
evidence, specifically, that defendant administered karate chops to
Kevin. Defendant asks us to vacate his 60-year sentence and remand
for a new sentencing hearing.
Defendant waived this issue by failing to file a
postsentencing motion. People v. Reed, 177 Ill. 2d 389 (1997).
However, even addressing the issue on its merits, we find no cause
to disturb the sentence imposed by the trial judge.
When we can determine from the record that the reliance on the
improperly considered aggravating factor was so insignificant that
it did not lead to a greater sentence, remandment is not required.
People v. Bourke, 96 Ill. 2d 327, 332 (1983). Here, the trial
judge did wrongly state that the evidence showed defendant karate
chopped Kevin. However, the record indicates that the weight
placed on the wrongly considered factor did not result in a greater
sentence. Rather, the trial judge gave defendant a 60-year
sentence based on the "tremendous force [used] to beat this child
to death," the "brutality involved in this case," and defendant's
lack of remorse. Said considerations were amply supported in the
trial record. We find no abuse of discretion.
Next, defendant argues the "cumulative effect" of the errors
denied him a fair trial. We reject this argument, as defendant is
rearguing the same alleged errors that we have already found do not
necessitate a new trial. See People v. Adams, 283 Ill. App. 3d
520, 527 (1996).
Finally, we address defendant's argument that we must vacate
one of his murder convictions. Defendant was charged with and
convicted of murder under sections 9-1(a)(1) and (a)(2) of the
Code. 720 ILCS 5/9-1(a)(1), (a)(2) (West 1996). However,
defendant cannot be convicted of more than one murder arising out
of the same physical act. People v. Pitsonbarger, 142 Ill. 2d 353,
377 (1990). When multiple murder convictions have been entered for
the same act, the less culpable conviction must be vacated. People
v. Oaks, 169 Ill. 2d 409, 471 (1996). A murder conviction under
section 9-1(a)(2) involves a less culpable mental state than a
conviction under section 9-1(a)(1). See Pitsonbarger, 142 Ill. 2d
at 378. Therefore, we affirm defendant's conviction under section
9-1(a)(1) and vacate defendant's conviction under section 9-
1(a)(2).
For the foregoing reasons, we affirm defendant's conviction
under section 9-1(a)(1) and vacate his conviction under section 9-
1(a)(2).
Affirmed in part and vacated in part.
BUCKLEY, P.J., and GALLAGHER, J., concur.
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