People v. Drake

• Decision Date: 21 March 2019
• Docket Number: Docket No. 123734
• Citation: 131 N.E.3d 555,433 Ill.Dec. 197,2019 IL 123734
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Gerald DRAKE, Appellee.
• Court: Illinois Supreme Court

2019 IL 123734

131 N.E.3d 555

433 Ill.Dec. 197

The PEOPLE of the State of Illinois, Appellant,

v.Gerald DRAKE, Appellee.

Docket No. 123734

Supreme Court of Illinois.

Opinion filed March 21, 2019

Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Erin M. O’Connell, Assistant Attorneys General, of Chicago, of counsel), for the People.

James E. Chadd, State Appellate Defender, Patricia Mysza, Deputy Defender, and Brett C. Zeeb, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

¶ 1 Defendant, Gerald Drake, was convicted of aggravated battery following a bench trial in the circuit court of Cook County. The appellate court reversed his conviction and held that retrial was barred by the double jeopardy clause. Based on the facts of this case, we hold that the double jeopardy clause does not bar retrial of defendant. Accordingly, we reverse in part the appellate court's judgment and remand to the trial court for a new trial.

¶ 2 BACKGROUND

¶ 3 Defendant was charged by indictment with aggravated battery of a child ( 720 ILCS 5/12-4.3(a) (West 2008) ), heinous battery ( 720 ILCS 5/12-4.1(a) (West 2008) ), and aggravated domestic battery ( 720 ILCS 5/12-3.3(a) (West 2008) ). The indictments alleged that defendant caused great bodily harm to his six-year-old stepson, J.H., by immersing him in hot water.

¶ 4 Prior to trial, the State filed a motion seeking to admit J.H.'s out-of-court statement to Rosalina Roxas, his nurse at John H. Stroger Jr. Hospital (Stroger Hospital). In that statement, J.H. claimed that defendant caused his injuries by pouring a cup of hot water on him. The trial court ruled that J.H.'s statement was admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment. See Ill. R. Evid. 803(4) (eff. Apr. 26, 2012).

¶ 5 At defendant's bench trial, Roxas testified that, as a registered nurse, she treated J.H. in the pediatric intensive care unit at Stroger Hospital for burns to his buttocks, genital area, and legs. When Roxas entered his room one day, J.H. called to her and stated he was going to tell her something. J.H. then revealed that defendant poured hot water on him while he was in the bathtub. When Roxas asked if J.H. had done anything to upset defendant, J.H. replied that he had done nothing. Prior to that conversation, J.H. had not disclosed the cause of his injuries but "just started crying if [anyone tried] to ask him anything about the incident." On cross-examination, Roxas confirmed that J.H. stated defendant poured a cup of hot water on him and that she did not ask J.H. about the size of the cup.

¶ 6 The State also offered expert testimony from Dr. Marjorie Fujara, a specialist in child abuse pediatrics at Stroger Hospital. J.H. was admitted with burns covering 13% of his body. J.H. had third-degree burns through the full thickness of his skin on the tops of his feet up to his ankles and second-degree burns on the soles of his feet, buttocks, and genital area. Full thickness burns often require skin grafting because the tissue is damaged beyond recovery. Dr. Fujara stated the burn pattern was "very distinctive" with a clear line between the burned and healthy skin. The burns ended at J.H.'s ankles with no splash marks extending upward onto his legs. She opined that the burns resulted from forcible immersion in hot water, explaining that the soles of J.H.'s feet and his buttocks were burned less severely because they were in contact with the cooler surface of the bathtub. Dr. Fujara stated splash marks would be expected if J.H. had been moving around in the bathtub. Based on the specific burn pattern, Dr. Fujara ruled out alternative causes, observing that if J.H. had stepped into a bathtub filled with hot water he would have "reflexively" withdrawn his foot and he would not have suffered burns to both feet and his buttocks. Alternatively, if J.H. had been sitting in the bathtub when the hot water was turned on, he would have flailed around when the water contacted his skin, resulting in splash marks.

¶ 7 On cross-examination, Dr. Fujara stated she was aware that the hot and cold water lines had been reversed and the hot water was measured at 160 degrees. That information, however, did not alter her opinion that J.H.'s burns resulted from forced immersion. Dr. Fujara also acknowledged that J.H.'s siblings were examined and did not demonstrate any indication of abuse.

¶ 8 Thomas White, a retired investigator with the Department of Children and Family Services (DCFS), testified that defendant stated his wife, J.H.'s mother, was at work when the injury occurred. Defendant was at home caring for their children. White's memory was "a little foggy" on how many children defendant stated he was caring for, but it was either eight or nine, and they ranged in age from infancy to 12 years old. Defendant acknowledged he felt "a little overwhelmed." At some point that morning, J.H. and his brother were wrestling and fell into feces that had leaked from the baby's diaper onto the floor. Defendant told them to go take a bath.

¶ 9 White further testified that defendant did not explain how he became aware of J.H.'s injuries. During his investigation, however, White learned that two of the other children told their mother that J.H.'s feet were peeling after she came home from work between 10:30 and 11:30 that night. Defendant and J.H.'s mother then immediately took J.H. to the hospital. Defendant acknowledged that he falsely identified himself as "Joe Campbell" at the hospital. He also stated he was J.H.'s uncle and falsely claimed that J.H. was with a babysitter prior to arriving at the hospital.

¶ 10 On cross-examination, White testified that defendant stated he was not angry when he sent J.H. to take a bath. Defendant informed White that a new water heater had been installed a couple of days before the incident. White turned the cold water knob in the bathtub and observed the water temperature rise rapidly to 161 degrees. White noted the water temperature normally should not exceed 119 degrees. He then went to the basement and determined that the hot and cold water lines had been reversed when installed on the new water heater. White did not observe any signs of abuse in the other children and stated they "[s]eemed appropriately adjusted."

¶ 11 Based on the evidence, the trial court found defendant guilty of the charged offenses. The trial judge emphasized that the unrebutted expert testimony established that J.H.'s injuries resulted from forcible immersion, defendant was the sole caregiver present when the injuries occurred, and defendant exhibited consciousness of guilt by giving false information at the hospital.

¶ 12 Defendant subsequently elected to be sentenced under the amended aggravated battery statute. See 720 ILCS 5/12-3.05(a)(2), (b)(1) (West 2014). The trial court merged the remaining counts into the aggravated battery conviction and sentenced defendant to 20 years' imprisonment for that offense.

¶ 13 On appeal, defendant contended, in pertinent part, that Rosalina Roxas's testimony recounting J.H.'s out-of-court statement was inadmissible hearsay and that the State failed to prove the charged offenses beyond a reasonable doubt. 2017 IL App (1st) 142882, ¶ 20, 432 Ill.Dec. 113, 129 N.E.3d 1. The appellate court held that the trial court erred in admitting J.H.'s statement identifying defendant as the offender under the hearsay exception for statements made for the purpose of medical diagnosis and treatment. The appellate court concluded the hearsay statement was not made for that purpose and admission of the statement could not be considered harmless error. 2017 IL App (1st) 142882, ¶¶ 24-29, 432 Ill.Dec. 113, 129 N.E.3d 1.

¶ 14 The appellate court further held that the double jeopardy clause barred retrial because the evidence presented by the State was insufficient to prove defendant guilty of the offenses beyond a reasonable doubt. 2017 IL App (1st) 142882, ¶¶ 30-41, 432 Ill.Dec. 113, 129 N.E.3d 1. The appellate court reasoned that J.H.'s hearsay statement was the only identification evidence placing defendant in the bathroom when the injury occurred and the evidence showed that other people were in the house when J.H. was injured. 2017 IL App (1st) 142882, ¶ 40, 432 Ill.Dec. 113, 129 N.E.3d 1. Defendant's conviction was, therefore, reversed.

2017 IL App (1st) 142882, ¶ 41, 432 Ill.Dec. 113, 129 N.E.3d 1.

¶ 15 Justice Gordon dissented from the portion of the majority's opinion holding that the double jeopardy clause barred retrial. 2017 IL App (1st) 142882, ¶ 48, 432 Ill.Dec. 113, 129 N.E.3d 1 (Gordon, J., concurring in part and dissenting in part). The partial dissent maintained that the majority failed to consider the excluded hearsay statement properly in its analysis of that issue. 2017 IL App (1st) 142882, ¶ 60, 432 Ill.Dec. 113, 129 N.E.3d 1 (Gordon, J., concurring in part and dissenting in part). The partial dissent concluded that this matter should be remanded for a new trial because the evidence presented at trial, including J.H.'s hearsay statement, was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt. 2017 IL App (1st) 142882, ¶ 60, 432 Ill.Dec. 113, 129 N.E.3d 1 (Gordon, J., concurring in part and dissenting in part).

¶ 16 We allowed the State's petition for leave to appeal ( Ill. S. Ct. R. 315 (eff. July 1, 2018) ).

¶ 17 II. ANALYSIS

¶ 18 On appeal to this court, the State does not dispute the appellate court's holding that admission of J.H.'s out-of-court statement was reversible error. Rather, the State only argues that the appellate court erred in concluding retrial is barred by the double jeopardy clause. The State contends the evidence submitted at trial, including J.H.'s hearsay statement, was sufficient for a rational trier of...