In re D.L.H.

NOTICE
2016 IL App (5th) 130341-BDecision filed 02/05/16. The
text of this decision may be NO. 5-13-0341
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
In re D.L.H., JR., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) St. Clair County.
)
Petitioner-Appellee, )
)
v. ) No. 12-JD-235
)
D.L.H., Jr., ) Honorable
) Walter C. Brandon, Jr.,
Respondent-Appellant). ) Judge, presiding.
________________________________________________________________________
JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
Presiding Justice Schwarm and Justice Chapman concurred in the judgment and
opinion.
OPINION
¶1 This case originated after the State filed a petition for adjudication of wardship in
the circuit court of St. Clair County, alleging respondent, D.L.H., Jr., age 9, committed
first degree murder by repeatedly striking 14-month-old T.W. about the head (720 ILCS
5/9-1(a)(2) (West 2012)). The circuit court found respondent unfit to stand trial and in a
later discharge hearing found respondent "not not guilty" of murder. The circuit court
remanded respondent to the Department of Human Services (the Department) for fitness
restoration for the maximum period of up to five years so that respondent may become fit
1
and be tried for murder. Respondent appealed, arguing inter alia that the circuit court
erred in denying his motion to suppress two statements he made to police. In an
unpublished order, we found both statements involuntary, and we reversed and remanded
for a new discharge hearing. In re D.L.H., 2013 IL App (5th) 130341-U. We also found
the other issues raised by respondent outside of the suppression issues were not likely to
recur upon remand, and, therefore, did not address the other issues raised by respondent.
In re D.L.H., 2013 IL App (5th) 130341-U, ¶ 42.
¶2 The State filed a petition for leave to appeal, which our supreme court granted. In
re D.L.H., No. 117341, 5 N.E.3d 1123 (table) (Ill. Mar. 18, 2014). Ultimately, the court
determined the first statement was voluntary, but the second was not. The supreme court
affirmed in part, reversed in part, and remanded with directions for us to conduct a
harmless error analysis with regard to the second statement and "to consider any other
claims of error previously raised but not decided that are necessary to the proper
disposition of this case." In re D.L.H., 2015 IL 117341, ¶ 81, 32 N.E.3d 1075.
¶3 Considering the passage of time, we provided the parties an opportunity to file
supplemental briefs addressing claims of error previously raised but not decided which
may be deemed necessary to the proper disposition of this case. In his brief, respondent
raises the following issues: (1) whether the erroneous admission of his second statement
to police was harmless error; and (2) whether the evidence was sufficient to support the
not not guilty finding. The State filed a reply brief and later filed a motion to strike from
respondent's supplemental brief a new argument which the State claims was not
2
previously raised in this court and would be outside the mandate of our supreme court's
order remanding this case to us. We deny the State's motion to strike.
¶4 BACKGROUND
¶5 The facts of this case have previously been recited both by this court and our
supreme court, and we borrow liberally from those statements of fact. The case began
when the State filed a petition for adjudication of wardship which alleged respondent
committed first degree murder of T.W. by repeatedly striking him in the head.
Respondent's mother died when he was three years old. He lived with his father, David,
and David's girlfriend, Melissa, in Cahokia. Additional members of the household
included David and Melissa's 9-month-old son, Daveon, Melissa's 11-year-old son, Dre,
Melissa's cousin, Alisha, and her three sons, Todd, Tymerian, and T.W.
¶6 An ambulance was called to the family home in the early morning hours of August
23, 2012, after T.W. was found unresponsive. He was admitted to Cardinal Glennon
Hospital in St. Louis for nonaccidental injuries. T.W. died on August 26, 2012, after
being removed from life support. Two days later the State filed a petition for
adjudication of wardship.
¶7 The circuit court appointed counsel for respondent and ordered a psychological
evaluation. Dr. Daniel Cuneo, a clinical psychologist, performed an evaluation. Dr.
Cuneo determined that respondent is borderline mentally retarded with an IQ of 78, he is
in the bottom 5% of the nation intellectually, and both his short-term and long-term
memory are impaired. Dr. Cuneo opined respondent was unfit for trial and there was not
3
a substantial probability he would be able to attain fitness within a year. Dr. Cuneo's
opinion was based upon respondent's age, his cognitive and developmental immaturity,
and his borderline intellectual functioning. Dr. Cuneo estimated respondent's cognitive
abilities as those of a seven- or eight-year-old who was unable to grasp the adversarial
nature of the proceedings against him and could not assist in his own defense. Dr. Cuneo
diagnosed respondent with depression and said he would benefit from inpatient
psychiatric treatment and possibly medication. Dr. Cuneo surmised that respondent is the
scapegoat in his family because he is blamed for all the difficulties the family
experiences. Dr. Cuneo estimated it is possible respondent could be restored to fitness
within five years because as respondent gets older his abstract thinking should improve.
Ultimately, the circuit court found respondent unfit to stand trial with no reasonable
probability he would be restored to fitness within one year. See 725 ILCS 5/104-16(d)
(West 2012).
¶8 On November 15, 2012, the trial court granted respondent's motion for
appointment of a guardian ad litem after respondent's father was arrested for child
endangerment in connection with the events leading to the death of T.W. Respondent
was subsequently placed with an aunt. The Department later recommended respondent
be placed with Streamwood Behavior Healthcare System. After being placed in that
facility, respondent was evaluated for possible commitment under the Mental Health and
Developmental Disabilities Code. See 725 ILCS 5/104-23(b)(3) (West 2012). After the
evaluation concluded respondent was not a danger to himself or to others and did not
meet the criteria for civil commitment, the trial court returned respondent to his aunt and
4
ordered respondent's counsel to provide the court with an outpatient fitness restoration
plan, mental health services, and a schooling plan.
¶9 The trial court also granted the State's motion for a discharge hearing. Prior to the
hearing, respondent filed a motion to suppress all statements he made to "anyone" during
the investigation of T.W.'s injuries. In an amended motion, respondent focused on two
statements he made to Detective Sean Adams of the Cahokia police department. After a
hearing, the trial court denied respondent's motion to suppress, finding respondent was
not in custody at the time of police questioning, he voluntarily waived his Miranda rights,
and his statements were voluntary.
¶ 10 A discharge hearing, previously scheduled for March 27, 2013, was continued on
the guardian ad litem's motion to have Dr. Cuneo examine respondent as to his sanity at
the time of the offense. See 720 ILCS 5/6-2 (West 2012). After examining respondent,
Dr. Cuneo explained that he was legally sane at the time of the offense and was able to
"appreciate the wrongfulness of severely beating a 14-month-old" and that "beating a
child could cause the child's death." During the interview, respondent told Dr. Cuneo that
Dre hit T.W. and threw him against a wall and ordered respondent to hit the baby. When
respondent refused, Dre hit respondent in the face, so respondent hit T.W. one time out of
fear that if he failed to do so, Dre would hit respondent again.
¶ 11 On May 22, 2013, the cause proceeded to a discharge hearing. Witnesses included
Tara Welch, a physical therapist assistant, who visited the home on the afternoon of
August 22, 2012, and found T.W. to be "happy" and "fine" with no apparent injuries.
5
Edna Norman, a Department of Children and Family Services (DCFS) caseworker,
testified that she interviewed respondent on August 23, 2012. During that interview,
respondent admitted he had been alone in the playroom with T.W. the previous evening
and he punched T.W. twice in the head and once in the side to try to stop him from
crying. Respondent said T.W. threw up "some white stuff" after being struck in the side
and then stopped crying. Respondent then carried him in a bedroom and placed him on
the bed.
¶ 12 Edna also testified she noticed Todd's lip "seemed a little swollen," and when she
asked respondent what happened to Todd, respondent admitted he also punched Todd the
previous evening. Edna testified when she interviewed Dre, he said he was in the master
bedroom with Todd and Tymerian, and after seeing respondent carry T.W. into an
adjacent bedroom, he checked on T.W. and saw T.W.'s stomach "jumping."
¶ 13 At the discharge hearing, Dre blamed respondent for T.W.'s injuries. Dre testified
the children were all left home without adult supervision. He was in the master bedroom
when he heard a "boom, boom" that "sounded like somebody was hitting the wall." After
hearing another "boom, boom" sound, Dre checked on T.W. and it seemed "like he was
dead or something." Dre brought respondent into the master bedroom and called his
mother, who made him talk to Alisha. When he told Alisha he thought something was
wrong with T.W., she indicated that she would be home soon. Dre testified the adults
failed to arrive until approximately 90 minutes later. During this time, T.W. was on the
bed making "funny noises" that sounded "like he was hurt or something." T.W.'s fists
were also "balled up" and his "stomach was going in and out." Dre testified that even
6
after the adults arrived home, no one immediately checked on T.W., but instead went to
bed.
¶ 14 Dre admitted he did not see anybody hit T.W. on the night in question and that he
previously lied about the children being left unattended because he did not want his
mother to get into trouble. He also admitted he lied in a statement he gave to the Child
Advocacy Center by indicating that "Fatty" and "Pooh" were at the house on the night
T.W. was injured. Dre explained his mother told him to say that Fatty and Pooh, two
people who used to live around the corner, were at the house. Respondent and his father,
David, were in the car when his mother coached him. Dre also explained that David told
him not to say respondent hit T.W. because nobody knew who did. On cross-
examination, Dre testified about a previous head injury to T.W. caused by Fatty. Dre
said Fatty was holding T.W. in the air when the baby fell from his hand. Dre saw T.W.
hit the top of his head on a table and begin to cry.
¶ 15 Melissa's stepmother, Joyce, testified that on the night in question, Melissa,
Alisha, David, and Daveon stopped by her apartment. She confirmed that Dre called to
tell Alisha and Melissa that respondent hit T.W. She said everyone left shortly after the
call. Joyce testified Melissa later called her to tell her something was wrong with T.W.
Melissa later stopped by her apartment accompanied by David, Dre, and respondent.
Joyce asked respondent if he hit T.W., and respondent admitted he did. Joyce said
respondent did not indicate anyone else hit T.W.
7
¶ 16 Detective Sean Adams of the Cahokia police department interviewed respondent
on August 24 and 26, 2012. Both interviews occurred in the kitchen of the house where
respondent lived. He read respondent his Miranda rights before the first interview.
When asked to initial the document, respondent instead signed his name. Respondent
indicated at the second interview that he still understood his Miranda rights. His father
was present at both interviews, but no attorney was present at either interview. Over
respondent's objection, both video recordings of the interviews were admitted and played
for the court.
¶ 17 In the first interview, respondent denied hitting T.W. and implicated Dre. He also
admitted that he told the DCFS caseworker, "I did it." However, he explained the reason
he admitted he hit T.W. was only because he was afraid his father and the other adults
would go to jail. Respondent agreed with Adams that he made a mistake when he told
the DCFS worker he hit T.W. and only did so because he was trying to make sure nobody
got in trouble and added he was scared "cause I thought I was gonna get tooken away."
¶ 18 In the second interview, respondent again implicated Dre, but after Adams
repeatedly assured him no consequences would attach to an admission and that any injury
was simply an accident, respondent finally admitted to hitting T.W. once in the head.
¶ 19 The State's final witness was Dr. Jennifer Forsyth, who performed the autopsy on
T.W. on August 27, 2012. Even though the discharge hearing was being conducted
nearly nine months after the autopsy was completed, no autopsy report was yet available
and the death certificate was not yet certified. Dr. Forsyth testified the cause of death
8
was a closed head injury and the death was a homicide caused by "diffuse axonal injury"
(trauma throughout the brain) and "cerebral edema" (brain swelling). According to Dr.
Forsyth, a person with this type of injury would quickly become lethargic, nonresponsive,
and limp, and could suffer seizures. Vomiting and flexing of the hands into a fist are also
associated with such an injury. Although T.W.'s injuries were consistent with injuries
that could have been sustained on August 22, 2012, Dr. Forsyth admitted it was not
possible to determine exactly when or how T.W.'s injuries were inflicted or whether he
was shaken. Dr. Forsyth said she did not observe any injury below the neck either at the
autopsy or microscopically.
¶ 20 The State argued in closing that respondent was solely responsible for T.W.'s
injuries, but even if the court believed Dre was involved, respondent's admission to
Detective Adams during the second interview that he hit T.W. in the head once was
sufficient to meet the State's burden to prove first degree murder under an accountability
theory.
¶ 21 On June 5, 2013, the trial court entered an order finding (1) respondent not not
guilty of first degree murder and (2) the treatment period for fitness restoration may be
extended to the maximum statutory period of five years. Respondent appealed, arguing
"(1) the trial court erred in denying his amended motion to suppress statements, (2) the
trial court erred in allowing Dr. Forsyth to testify as an expert witness, (3) the trial court
erred in finding him not not guilty of first-degree murder, and (4) he was prejudiced by
the unavailability of T.W.'s death certificate and autopsy report." In re D.L.H., 2013 IL
App (5th) 130341-U, ¶ 29. We reversed and remanded on the basis that the trial court's
9
findings that respondent voluntarily waived his Miranda rights and his statements to
Detective Adams were voluntary were against the manifest weight of the evidence. We
chose not to address the other issues raised by respondent because we found the issues
were not likely to occur upon remand.
¶ 22 Our supreme court granted the State's petition for leave to appeal. On appeal, that
court determined the first statement was voluntary, but the second was not. Accordingly,
the court affirmed in part, reversed in part, and remanded with directions for us to
conduct a harmless error analysis with regard to the second statement and "to consider
any other claims of error previously raised but not decided that are necessary to the
proper disposition of this case." In re D.L.H., 2015 IL 117341, ¶ 81, 32 N.E.3d 1075.
¶ 23 ANALYSIS
¶ 24 I. Harmless Error
¶ 25 The first issue is whether the admission of respondent's second statement to police
was harmless error. Respondent contends the admission of the second statement was not
harmless error because it was the only evidence that was not retracted or did not have
serious credibility issues that supported the finding that respondent inflicted the harm that
caused T.W.'s death. Respondent insists the other evidence was so compromised and
underwhelming there is no way we can find that respondent's admission to Detective
Adams that he hit T.W. once in the head did not contribute to the finding of not not
guilty. The State responds the second statement to the police was harmless error because
10
it was cumulative of other competent evidence of guilt, including inculpatory statements
respondent made to a DCFS caseworker, Edna Norman, and Melissa's stepmother, Joyce.
¶ 26 In order for an error to be harmless, a reviewing court must be satisfied beyond a
reasonable doubt that the error did not contribute to the defendant's conviction. Chapman
v. California, 386 U.S. 18, 24 (1967). In determining whether error is harmless, the State
bears the burden of establishing beyond a reasonable doubt that the trial court's error did
not contribute to the verdict obtained. People v. Patterson, 217 Ill. 2d 407, 428, 841
N.E.2d 889, 901 (2005). Three approaches are used in determining whether an error is
harmless: (1) whether the error might have contributed to the conviction; (2) whether
other properly admitted evidence overwhelmingly supports the conviction; and (3)
whether the improperly admitted evidence is merely cumulative or duplicates properly
admitted evidence. Patterson, 217 Ill. 2d at 428, 841 N.E.2d at 902.
¶ 27 "[A] confession is the most powerful piece of evidence the State can offer, and its
effect on [the trier of fact] is incalculable." People v. R.C., 108 Ill. 2d 349, 356, 483
N.E.2d 1241, 1245 (1985). Because confessions carry extremely probative weight, the
admission of an unlawfully obtained confession is rarely harmless error. People v. St.
Pierre, 122 Ill. 2d 95, 114, 522 N.E.2d 61, 69 (1988). In the instant case, we cannot
conclude respondent's confession in the second statement did not have an impact upon
the determination of the trial court.
¶ 28 We agree with respondent that apart from the confession in the second statement,
the evidence against respondent is not overwhelming. The State relied heavily on the
11
testimony of Edna Norman, a DCFS caseworker, who interviewed respondent the day
T.W. was admitted to the hospital. She testified respondent admitted he punched T.W.
twice in the head and once in the side the previous evening. However, during his first
interview with Detective Adams, respondent denied hitting T.W. and explained he lied to
the DCFS caseworker when he told her he hit T.W. He said he lied because he was
trying to protect his father and other adults who left five children, age 11 and under,
home alone while the adults went out for the evening. Respondent did not want to see his
father or the other adults go to jail.
¶ 29 The State also relied on the testimony of Melissa's stepmother, Joyce, who
testified she asked respondent whether he hit T.W. and respondent admitted he did.
Joyce did not testify to any details about the alleged hitting, but merely submitted that
respondent admitted he hit T.W. on the night in question. However, it is important to
note that Joyce and respondent are not related. As Melissa's stepmother, she is Dre's
grandmother. Therefore, her testimony is somewhat suspect as she would be more
inclined to protect Dre over respondent. Her testimony is even more suspect considering
the fact that several credible sources, including Dr. Cuneo, believe respondent is the
family's scapegoat.
¶ 30 Furthermore, the medical evidence in this case is weak. There were very few
visible injuries to T.W. at the time of the autopsy. Dr. Forsyth specifically testified it was
impossible to determine when or how T.W.'s injuries were inflicted or whether or not
T.W. was shaken. Under these circumstances, we cannot say the properly admitted
evidence overwhelmingly supports the trial court's not not guilty finding.
12
¶ 31 Finally, not only was the second statement wrongfully admitted into evidence, but
it was specifically relied upon by the State during closing argument as follows:
"I would submit to you that the evidence shows that [respondent] is solely
responsible. But if the court does entertain the possibility that [Dre] was involved,
the minor, himself, admits to accountability, being involved. Accountability under
Illinois law is aid, abet, assist during or before the commission of the offense in
any way. And so even the admission that he hit the baby in the side while the
baby was in the back play room is enough for the People to meet the burden that
he assisted in the beating of [T.W.].
That−again, I want to let the [c]ourt know, that's not what we believe the
evidence shows. But if you believe solely the minor's own account of events,
which we believe that has−that credibility has been challenged, but if you believe
solely that, the [c]ourt must still find there's sufficient evidence to prove guilty
beyond a reasonable doubt."
In light of these comments made during closing argument, we cannot say the improper
admission of respondent's second statement was harmless beyond a reasonable doubt.
¶ 32 Because the evidence against respondent is not overwhelming and the second
statement was the basis for the State's accountability argument, we find admission of the
second statement constitutes reversible error. We, therefore, remand for a new discharge
hearing. The new discharge hearing should be conducted without use of the second
statement.
13
¶ 33 II. Other Issues
¶ 34 Our supreme court has also directed us "to consider any other claims of error
previously raised but not decided that are necessary to the proper disposition of this
case." In re D.L.H., 2015 IL 117341, ¶ 81, 32 N.E.3d 1075. Respondent again asserts
the evidence was insufficient to support the finding of not not guilty of first degree
murder. While we admit we are not overwhelmed with either the medical evidence or the
evidence of intent, we cannot say the trial court erred in finding the respondent not not
guilty.
¶ 35 When presented with a challenge to the sufficiency of the evidence, a reviewing
court's function is not to retry a defendant. People v. Givens, 237 Ill. 2d 311, 334, 934
N.E.2d 470, 484 (2010). Rather, we must consider " '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 crime beyond a reasonable doubt.' " (Emphasis in original.)
People v. Davison, 233 Ill. 2d 30, 43, 906 N.E.2d 545, 553 (2009) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Under this standard, a reviewing court must draw
all reasonable inferences from the record in the State's favor. Davison, 233 Ill. 2d at 43,
906 N.E.2d at 553.
¶ 36 At the time of T.W.'s death, respondent was a nine-year-old child with a low IQ
who, by many accounts, including Dr. Cuneo's, served as the family's scapegoat.
Considering respondent's age, his lack of maturity, and the family dynamics involved in
this case, we cannot help but question whether respondent could form the necessary
14
intent to be convicted of first degree murder. However, we also cannot ignore Dr.
Cuneo's examination which revealed respondent was legally sane at the time of the
offense and was able to "appreciate the wrongfulness of severely beating a 14-month-
old," as well as the fact that Dr. Cuneo believed respondent was aware that such a beating
could cause death. Nor can we ignore the fact that T.W. died from nonaccidental injuries
and, according to Dr. Forsyth, his injuries were consistent with injuries that could have
been inflicted the day before T.W. was admitted to the hospital. Therefore, after viewing
the evidence in the light most favorable to the State, we cannot say no rational trier of
fact could have found respondent not not guilty.
¶ 37 Another previously raised issue likely to appear upon remand is whether Dr.
Forsyth is qualified to testify as an expert. Respondent contends Dr. Forsyth is not
qualified to testify as an expert. We disagree.
¶ 38 In People v. Lovejoy, 235 Ill. 2d 97, 919 N.E.2d 843 (2009), our supreme court
specifically stated:
"The decision to qualify a witness as an expert rests within the sound
discretion of the trial court. [Citation.] We will find an abuse of discretion only
where the trial court's decision is arbitrary, fanciful, or unreasonable, such that no
reasonable person would take the view adopted by the trial court. [Citation.] A
person can be permitted to testify as an expert if that person's experience and
qualifications afford him or her knowledge that is not common to the average
layperson and will assist the jury in evaluating the evidence and reaching a
15
conclusion. [Citation.] There are no precise requirements regarding experience,
education, scientific study, or training. [Citation.]" Lovejoy, 235 Ill. 2d at 125,
919 N.E.2d at 858-59.
Here, we cannot say the trial court abused its discretion in accepting Dr. Forsyth as an
expert.
¶ 39 Dr. Forsyth is a board-certified pathologist whose experience and qualifications
give her knowledge beyond what is common to any layperson. Respondent's arguments
concerning Dr. Forsyth's limited background in pediatric forensic pathology at the time
she performed the autopsy on T.W. reflect the weight to be afforded her testimony rather
than its admissibility. On remand, questions regarding Dr. Forsyth's lack of expertise in
pediatric pathology go toward the question of reliability of her testimony and can be
properly considered by the trial court in determining what weight to give her testimony;
however, respondent has failed to convince us that Dr. Forsyth's testimony should be
excluded. Finally, we note the problems presented by lack of a death certificate and
autopsy report should be cured upon remand, as surely by now both are available.
¶ 40 CONCLUSION
¶ 41 For the foregoing reasons, we affirm in part, reverse in part, and remand with
directions for the trial court to conduct a new discharge hearing without use of
respondent's second statement to Detective Adams. We have carefully considered the
directions of our supreme court to address not only the harmless error issue, but other
claims previously raised but not decided. We note that any other issues raised which we
16
have not addressed are not likely to occur on remand and, thus, we need not to address
them herein.
¶ 42 Affirmed in part, reversed in part, and remanded with directions.
17
2016 IL App (5th) 130341-BNO. 5-13-0341
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
In re D.L.H., JR., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) St. Clair County.
)
Petitioner-Appellee, )
)
v. ) No. 12-JD-235
)
D.L.H., Jr., ) Honorable
) Walter C. Brandon, Jr.
Respondent-Appellant). ) Judge, presiding.
__________________________________________________________________________
Opinion Filed: February 5, 2016
__________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, J.
Honorable S. Gene Schwarm, P.J., and
Honorable Melissa A. Chapman, J.,
Concur
__________________________________________________________________________
Attorneys Bill T. Walker, Law Office of Bill T. Walker, 3388-B Maryville Road,
for P.O. Box 1800, Granite City, IL 62040; James E. Parrot, Law Office of
Appellant James E. Parrot, 1221 Locust Street, Suite 1000, St. Louis, MO 63103
__________________________________________________________________________
Attorneys Hon. Brendan F. Kelly, State's Attorney, St. Clair County Courthouse,
for 10 Public Square, Belleville, IL 62220; Patrick Delfino, Director,
Appellee Stephen E. Norris, Deputy Director, Jennifer Camden, Staff Attorney,
Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois
Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
__________________________________________________________________________