People v. Kennedy
| Decision Date | 20 December 2002 |
| Docket Number | No. 1-00-4061.,1-00-4061. |
| Citation | 270 Ill.Dec. 305,336 Ill. App.3d 425,782 N.E.2d 864 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark KENNEDY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier, Office of the State Appellate Defender, Chicago (Christopher W. Buckley, of counsel), for Appellant.
Richard A. Devine, Cook County State's Attorney, Chicago (Renee Goldfarb, Patrick J. Enright and Susan R. Schierl Sullivan, of counsel), for Appellee.
Defendant Mark Kennedy entered an open plea of guilty to first degree murder for the beating death of the victim, D.H., a two-year-old boy. The State sought imposition of the death penalty based on the fact that the victim was under 12 years of age and the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Defendant waived a jury for the penalty phase. The State introduced the testimony of Cleo Childs, the victim's father, and Dr. Kalelkar, the medical examiner, in aggravation. Defendant's mitigation included evidence that he had suffered from psychological problems from childhood. Defendant was sentenced to natural life in prison. Defendant appeals contending the evidence fails to support the trial judge's finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and that, therefore, he should be resentenced or, in the alternative, the trial judge failed to consider mitigating factors and that, therefore, his sentence should be reduced.
As the factual basis for defendant's plea of guilty the State presented defendant's court-reported confession. Defendant, who was 26 years old, stated that he lived with Tina Huley and Tina's two-year-old son, D.H., in March 1997. Cleo Childs was the father of the two-year-old. Defendant indicated he would abuse Tina's son because he was jealous of the attention Tina gave her son. Defendant would bite different parts of the boy's body and burn him with a cigarette.
On March 7, 1997, defendant was babysitting for Tina's two-year-old son. Tina was at the hospital. Defendant was supposed to get the baby ready for his biological father to pick him up. Defendant went into the room where the baby was sleeping and bit him hard on the foot, noticing "the taste of blood in [his] mouth." The baby woke up and was crying.
Defendant began changing the baby's diaper and bit the baby again, this time on the buttocks. Defendant stated the baby "cried even more." Defendant took the baby, who was "still crying a lot," into the bathroom and sat the baby in the tub. Defendant hit the baby on the back of his head. The defendant stated that the baby's head "lurched forward." Defendant hit the baby "very hard in his face" and watched as the back of the baby's head "hit the back of the tub where it's at a 45 degree angle." Defendant heard a loud thud and stated that the baby was not crying as much as he had been before.
Defendant got in the tub and "picked the boy up from behind his rib cage [and] dropped him on the ledge of the tub to where his stomach hit the ledge." Defendant watched the baby fall forward and hit his head on the tile bathroom floor. The defendant indicated that when the baby hit the floor, he stopped crying. Defendant picked the baby up off the floor and stated the baby's stomach protruded and the baby appeared to be "in and out of consciousness as if he was lifeless." The baby was unable to walk. Defendant described the baby's body to be "just like a bunch of living tissue that can't move."
Defendant explained that he felt "very, very jealous" of the baby and the attention Tina gave the baby. By injuring the baby, defendant indicated that, "As in the past when I had done these stupid things to him, in its own time Tina did show some attention after all these things that I—that I did to this child." Cleo Childs, the baby's biological father, arrived, and after giving the baby to Childs, the defendant went to the bedroom and fell asleep.
Dr. Kalelkar, the medical examiner, would have testified that an autopsy on the baby revealed various internal injuries, including a ruptured intestine and 40 sites showing evidence of old and new injuries, including abrasions, cuts, bite marks, and burns. The two-year-old baby died of peritonitis due to the rupture of his small intestine and abdomen. Manner of death was homicide. The trial court found a sufficient factual basis for the defendant's plea of guilty and entered a finding of guilty to first degree murder.
The State sought the death penalty and defendant waived a jury for both phases of the capital sentencing hearing. Regarding defendant's eligibility, the State introduced defendant's birth certificate, indicating defendant was over 18 years of age at the time of the murder. The State introduced the victim's birth certificate, indicating the baby was two years of age at the time he was murdered. Both the State and defense stipulated that the testimony stated for the record in support of the factual basis for the guilty plea would be reintroduced for the sentencing hearing. The trial court found defendant to be statutorily eligible for imposition of the death penalty because the victim, D.H., was under the age of 12 and the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. 720 ILCS 5/9-1(b)(7) (West 1998). The trial court proceeded to the aggravation and mitigation phase of the death penalty hearing. The State introduced the testimony of Cleo Childs, the victim's biological father, and the live testimony of the medical examiner in aggravation.
Childs testified he picked up the baby from defendant at Tina's apartment on March 7, 1997. The baby was vomiting and Childs noticed a mark under the baby's chin, but did not notice any other sign of injury. The baby seemed to be a little sick during the night. The next morning, Childs took the baby to a clinic, then to a hospital, where he was told the baby had died. His son's death hurt him deeply because he can no longer see his son or watch him grow.
Dr. Kalelkar testified that the external examination revealed 16 recent injuries and 20 older injuries. The old injuries included small scars on the baby's head and chest; scars consistent with healing cigarette burns on his abdomen, chest, back and hand; and bite marks on his arm and thigh. The recent injuries included scratches on the front and back of his body, bite marks on the left foot, cigarette burns on the right and left heel, and two bruises on the forehead.
Dr. Kalelkar indicated her internal examination revealed a ruptured small intestine and lacerated and ruptured mesentery. The pancreas was contused and there was hemorrhaging in the soft tissues around the kidneys. In her opinion, "[A]ll of this was from blunt force to the abdomen." She also noted "a lot of old and healing rib fractures," including four healing rib fractures on the right side and one healing rib fracture on the left side. Dr. Kalelkar also observed multiple subgaleal hemorrhages, including one in the forehead area, one on the left temporal area, one on the right temporal area, and one on the back under the scalp.
According to Dr. Kalelkar, the victim died "as a result of multiple injuries sustained as a result of blunt trauma" to the abdomen, resulting in a ruptured small intestine. The injuries she observed on the baby "were patterned in the sense this child suffered from injuries on an ongoing basis." The injuries were consistent with the statement given by the defendant.
In the mitigation phase of the death penalty hearing, defense counsel offered the presentence investigation report. He also provided a psychiatric and psychological report prepared by Dr. Carl C. Bell, a professor of clinical psychiatry at the University of Illinois School of Medicine. Defense counsel relied on psychological reports that dated back to 1981. Defendant's criminal history revealed only one misdemeanor conviction for criminal damage to property. Based on the lack of criminal history and the psychological disorders, defense counsel argued against imposition of the death penalty.
The trial court found that defendant was statutorily eligible for the death penalty pursuant to section 9-1(b)(7) of the Criminal Code of 1961, which required that "the murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty." 720 ILCS 5/9-1(b)(7) (West 1998). However, the trial court found defendant's psychiatric background was a factor sufficient to mitigate imposing the death penalty and sentenced defendant to natural life in prison pursuant to section 5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections. 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1998).
The trial court granted the post-conviction petition, vacated the sentence, and ordered a new sentencing hearing because the Illinois Supreme Court found that the statute under which defendant was sentenced, providing for mandatory life imprisonment, violated the single subject rule of the Illinois Constitution. People v. Wooters, 188 Ill.2d 500, 243 Ill.Dec. 33, 722 N.E.2d 1102 (1999). The law that applies to this case provides for discretionary rather than mandatory life imprisonment. 730 ILCS 5/5-8-1(a)(1)(b) (West 1994). The applicable version of section 5-8-1(a)(1)(b) of the Code provides that a trial court may impose a natural life sentence for first degree murder if it finds the murder was accompanied by "exceptionally brutal or heinous behavior indicative of wanton cruelty." 730 ILCS 5/5-8-1(a)(1)(b) (West 1994).
At the new sentencing hearing the State and defense stipulated to the evidence admitted at the original sentencing hearing....
To continue reading
Request your trial
-
People v. Tenney
... ... These factors include premeditation, the unprovoked nature of the attack, the "senseless" nature of the act, the number of wounds inflicted, the danger created by the act, and the extent of the injury inflicted. People v. Kennedy, 336 Ill.App.3d 425, 431, 270 Ill.Dec. 305, 782 N.E.2d 864 (2002) ... Further factors that indicate brutality or heinousness are the defenselessness of the victim ( People v. Taylor, 164 Ill.App.3d 938, 944, 115 Ill.Dec. 884, 518 N.E.2d 409 (1987) ) and a defendant's lack of remorse ( People v ... ...
-
People v. Tabb
...case and attributes of the defendant such as his credibility, demeanor, and general moral character. People v. Kennedy, 336 Ill.App.3d 425, 433, 270 Ill. Dec. 305, 782 N.E.2d 864 (2002). A sentence that is within statutory guidelines will be modified only if it is "greatly at variance with ......
-
People v. Gordon
...of review to determine an appropriate sentence based on the particular circumstances of each case. People v. Kennedy, 336 Ill.App.3d 425, 433, 270 Ill.Dec. 305, 782 N.E.2d 864 (2002). The trial court has broad discretionary powers in imposing a sentence. People v. Alexander, 239 Ill.2d 205,......
-
People v. Price
...v. Hensley, 354 Ill.App.3d 224, 234–35, 289 Ill.Dec. 474, 819 N.E.2d 1274, 1284 (2004) (quoting People v. Kennedy, 336 Ill.App.3d 425, 433, 270 Ill.Dec. 305, 782 N.E.2d 864, 871 (2002)). ¶ 37 Defendant's remaining sentences are concurrent prison terms of 12 years for home invasion and 5 yea......