People v. Irby, 2-90-0739

• Decision Date: 22 October 1992
• Docket Number: No. 2-90-0739,2-90-0739
• Citation: 177 Ill.Dec. 177,602 N.E.2d 1349,237 Ill.App.3d 38
• Parties: , 177 Ill.Dec. 177 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ricky IRBY, Sr., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1349

602 N.E.2d 1349

237 Ill.App.3d 38, 177 Ill.Dec. 177

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ricky IRBY, Sr., Defendant-Appellant.

No. 2-90-0739.

Appellate Court of Illinois Second District.

Oct. 22, 1992.

G. Joseph Weller, Deputy Defender, Barbara R. Paschen, Paul Alexander Rogers (argued), Office of State Appellate Defender, Elgin, for Ricky Irby, Sr.

Michael J. Waller, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, Cynthia N. Schneider (argued), State's Atty. Appellate Prosecutor, Elgin, for People.

Justice NICKELS delivered the opinion of the court:

Following a bench trial in the circuit court of Lake County, defendant, Ricky Irby, Sr., was found guilty of the murder of his son, Quinten Irby. (Ill.Rev.Stat.1983, ch. 38, par. 9-1(a)(2).) He was sentenced to an extended term of 80 years' imprisonment. Defendant raises the following issues on appeal: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether he was denied due process of law where the State introduced expert testimony on physical evidence that was lost prior to trial; (3) whether the trial court erred by not drawing a negative inference from the State's failure to call Sheila Smith; and (4) whether the sentence is excessive.

On May 31, 1984, three-month-old Quinten Irby suffered severe injuries to his face, mouth, esophagus, trachea and lungs as the result of being force-fed a caustic substance while in the care of his mother, Sheila Smith. Quinten remained in Children's Memorial Hospital (Children's Memorial) for 27 months where he was treated for various problems stemming from those injuries and died as a result therefrom on August 26, 1986.

Defendant, who was Quinten's father, and Sheila Smith (Sheila) were indicted for first degree murder, later amended to murder, on May 31, 1989. Separate counsel was appointed for defendant and Sheila. Defendant filed several motions to dismiss and motions in limine. Defendant sought to prevent the State from introducing evidence or testimony relating to chemical testing of certain physical evidence, which was lost by the State. An open can of baby formula, an unopened can of baby formula, a baby bottle, sink traps from Sheila's residence, defendant's pants, a piece of fabric from defendant's father's car, and testing data were lost sometime between September 1984 and January 1985. Defendant's motions were denied.

Defendant was tried for murder on the basis of accountability. It was the State's theory that defendant aided Sheila in injuring Quinten to obtain a financial settlement from the manufacturer of the formula by blaming the cause of the injuries on the formula. Through a stipulated exhibit, it was established that defendant, as special administrator of Quinten's estate, filed a civil lawsuit for wrongful death against the manufacturer of the formula, Ross Laboratories, a subsidiary of Abbott Laboratories, on August 18, 1987. The lawsuit was voluntarily dismissed by defendant on July 18, 1988.

In May 1984 defendant, then 24 years old, and Sheila, 23 years old, had two children, Ricky, Jr., born in 1980 and Quinten born in February 1984. While defendant and Sheila once shared an apartment, defendant had moved in with his parents in North Chicago a few months before this incident. Sheila and the two children resided at Sheila's mother's house a few blocks from defendant.

Tinnie Smith, Sheila's mother, testified that Sheila was out of formula and purchased a can on the night of May 30, 1984. Sheila fed Quinten about 7:30 p.m., and he was fine. There were several baby bottles in a cabinet. Tinnie said there were cans of formula that "had a little bit open." The open can of formula that Sheila fed Quinten from on May 30 was placed in the refrigerator. Tinnie was not home when Quinten became sick. While at the hospital, she observed that Sheila was upset and crying. When Tinnie got home from the hospital, she did not recall seeing any bottles around the house.

Sheila's brother, Alvin Ray Smith, lived in Tinnie Smith's house. Sometime before 8 a.m. on May 31, 1984, Sheila asked Alvin to hold Quinten while she got a bottle. Quinten appeared fine. After Alvin went downstairs to his room, Sheila screamed for him. He observed Quinten vomiting but thought the baby was too full.

Several witnesses testified that Sheila indicated that Quinten was vomiting on the morning of May 31, 1984. However, the paramedic, a nurse at St. Therese Medical Center (St. Therese), and police officers who inspected the house found no evidence of vomiting on Quinten's clothing or the furniture.

A paramedic who responded to Sheila's call found what appeared to be chemical burns around Quinten's mouth, chin and neck. He said Sheila was totally calm and callous while the woman with her was excited and concerned.

A St. Therese Medical Center nurse, Mariann Hannas, testified that the bottle had a small amount of clear liquid covering the bottom, and she detected no odor from it. There was nothing wrong with the nipple. The open can of formula was black around the openings and the top which she described as corroded.

Mariann Carlton, a nurse at St. Therese, spoke with Sheila in the emergency room. Sheila told Carlton that she put Quinten on the sofa while she went in the kitchen to prepare a bottle. The only other person present was Sheila's three-year-old son. Upon returning to Quinten, Sheila said he had trouble breathing and had injuries to his mouth.

Carlton said that when defendant arrived at the emergency room, she told him that Quinten was injured and the hospital needed to know what happened. Defendant said it had to be the formula and that he was going to sue Abbott Labs. He repeated that it had to be the formula. Carlton told defendant that the hospital needed to know what caused the injuries, and defendant left to retrieve any items. He returned with a baby bottle and a can of formula. She could not recall any other items defendant brought back.

The police report of Carlton's June 25, 1984, statement to Officer Robert Witkowski did not include defendant's remark about the formula. Carlton indicated she told the police this information. Witkowski later testified on cross-examination that he did not recall Carlton telling him about defendant's formula remark and that he would have put it in his report if she had.

Carlton testified that the can of formula defendant returned with had a dusty, dirty lid and the inside smelled "tainted," unlike merely spoiled formula. The lid was already open with two triangular holes. She did not recall how much formula was in the can, but the police report indicated that she found very little. The baby bottle did not contain any formula but had a film-like substance like old baby formula on the sides. It also smelled tainted.

Sheila's older sister, Willie Bea Smith, testified that she was at her home when she received a call from Sheila about 8:30 a.m. on May 31, 1984. Sheila indicated Quinten was sick. When Willie Bea arrived at Sheila's about 10 minutes later, the ambulance was already there. Sheila was upset and crying, but Willie Bea did not speak to her at that time.

Willie Bea left St. Therese when she heard that Quinten was being moved to Children's Memorial. She had not heard any conversations about Quinten's injuries. Willie Bea left her mother and Sheila at the hospital although they did not have their own transportation. She explained, however, that when she left, Quinten had not yet been moved to Children's Memorial.

Willie Bea said there was no reason why she went to Sheila's house. She knew defendant was going there because he told her that the hospital sent him to get the formula. Willie Bea said defendant did not need a ride and did not need assistance to enter the house.

At Sheila's house Willie Bea found an open can of formula in the refrigerator. She did not observe any other cans of formula. She took the open can to the kitchen sink and poured a small amount of liquid down the drain "to see how it looked." She described the can as "quite full," "almost a full can," more than or half full, but later said it was more than one-half full. The top of the can was clean. The formula looked and smelled normal. She then gave the can to defendant; he did not grab it from her. During his testimony defendant said the formula looked normal when Willie Bea poured it down the sink. It also looked normal when it spilled on the car seat.

Dr. Michael Oster, the emergency-room physician who treated Quinten at St. Therese, explained that the burns were caused by a strong acid or chemical applied within about an hour of the injury. Anywhere from 15 to 30 c.c.'s of the substance would have been necessary to cause the injuries. Quinten would not have voluntarily consumed the substance due to an immediate reaction to it. The substance was adeptly administered to the mouth due to the lack of burns elsewhere on the body. Oster opined that this could have been accomplished with something like a kitchen baster or poured directly from a baby bottle. Dr. Carol Gerson of Children's Memorial was of a similar opinion as Oster. Oster did not recall speaking directly to defendant that day. Oster said he told a nurse to send the police to the house to look for something that may have caused the injuries. However, on June 19, 1984, Oster told Officer Witkowski that Oster told defendant to go home and look for anything which contained acid or alkaline to which the baby had access.

A nurse at Children's Memorial, Cindy Etzler, spoke with defendant and Sheila on May 31, 1984, and June 1, 1984. Defendant indicated on May 31 that he suspected a problem with the formula due to the damage to his pants. Etzler did not recall noticing any damage. One of the parents mentioned another, yet unopened can of formula that was purchased with the other can. She asked that anything relating to the injuries be brought to the...