People v. Payne

• Decision Date: 20 December 2002
• Docket Number: No. 1-00-4120.,1-00-4120.
• Citation: 783 N.E.2d 130,336 Ill. App.3d 154,270 Ill.Dec. 555
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Denise PAYNE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

783 N.E.2d 130

336 Ill. App.3d 154

270 Ill.Dec. 555

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Denise PAYNE, Defendant-Appellant.

No. 1-00-4120.

Appellate Court of Illinois, First District, Sixth Division.

December 20, 2002.

Michael J. Pelletier, Office of the State Appellate Defender, Chicago (Elizabeth A. Botti, of counsel), for Appellant.

Richard A. Devine, Cook County State's Attorney, Chicago (Renee Goldfarb and John E. Nowak, of counsel), for Appellee.

Justice FROSSARD delivered the opinion of the court:

Following a bench trial, defendant Denise Payne was convicted of first degree murder. The State sought the death penalty and defendant waived a jury for both phases of the capital sentencing hearing. After a death penalty hearing before the trial court, defendant was sentenced to an extended term of 80 years in prison. Defendant appealed and her counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Defendant responded, contending that the State did not prove she had the intent to kill beyond a reasonable doubt. Rejecting defendant's contention, this court granted defense counsel's motion to withdraw and affirmed the trial court's judgment. People v. Payne, No. 1-97-4467, 307 Ill.App.3d 1073, 260 Ill.Dec. 289, 760 N.E.2d 1062, slip order at 2-3 (August 23, 1999) (unpublished order under Supreme Court Rule 23) ("the evidence was sufficient to show that defendant possessed the requisite intent and committed the offense of first degree murder").

Defendant subsequently filed a pro se post-conviction petition, which the circuit court summarily dismissed as frivolous and patently without merit. In this appeal, defendant contends (1) that her pro se petition sufficiently raised the gist of a meritorious claim of ineffective assistance of trial counsel; (2) that appellate counsel was ineffective; (3) that her extended-term sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (4) that Public Act 83-942, effective November 23, 1983, violates the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8(d)). We affirm.

BACKGROUND

Defendant's conviction arose from the beating death of her five-year-old stepson, J.P., on February 21, 1995, in Harvey, Illinois. Defendant filed a motion to suppress statements, arguing that her confession was involuntarily obtained as a result of psychological coercion. Following a hearing, at which the interrogating officer and defendant's sister testified, the trial court denied the motion to suppress.

At trial, Harvey police detective James McGee testified that in the late evening hours of February 21, 1995, he was dispatched to an area hospital in connection with a reported incident of child abuse. At the emergency room, he observed J.P., who was unconscious with bruises, scars, marks, lacerations, and cuts "all about" his body. Detective McGee then went to J.P.'s home, where he spoke with defendant, who appeared calm and unconcerned. Defendant told Detective McGee that as she and J.P. were walking down the stairs, she slipped on the third stair from the bottom and landed on top of J.P. After further conversation, defendant told Detective McGee that she punished J.P. by striking him with a stick, which Detective McGee recovered from under the kitchen table. Defendant agreed to accompany Detective McGee to the hospital. There, Detective McGee spoke with medical personnel while defendant stayed in the emergency room waiting area. Defendant subsequently accompanied Detective McGee to the police department. The next afternoon, Detective McGee searched defendant's home with her husband's consent and recovered a leather belt.

J.P.'s sister, 11-year-old D.P., testified that on February 21, 1995, she was nine years old. She explained that at that time, she lived with her father, her stepmother, her eight-year-old sister, her six-year-old brother, and J.P., who was five years old. D.P. testified that on the day in question she heard defendant ask J.P. whether he had any homework. J.P. responded that he did not. Defendant and J.P. went upstairs to the boys' room, where defendant again asked J.P. about his homework. When J.P. said he had none, defendant accused him of lying. Defendant then asked the children who broke the closet door in the boys' room, and D.P. told her that her niece had done it. Defendant telephoned her sister and then called J.P. downstairs. D.P. testified that she heard J.P. walk downstairs and then heard him "getting a whooping" with the belt. D.P. heard smacking noises and heard J.P. screaming and hollering, "Please, God." When asked whether J.P.'s screaming was any different that day from any other time, she replied that he was louder than ever before.

On cross-examination, D.P. stated that other than the day in question, every time she "got a whooping," defendant would say to her, "I'm going to kill you." D.P. also stated that defendant "used to say that all the time." However, D.P. acknowledged that she did not tell the police about these statements by defendant.

Paramedic Geral Kurylo testified that around 11:30 p.m. on the date in question, she and her partner were dispatched to defendant's home. When Kurylo entered the home, defendant was talking on the telephone, crying, and holding J.P. in her arms. She then set J.P. down on the kitchen table, promptly stopped crying, and lit a cigarette. Kurylo testified that J.P. was limp and chalky white, which indicated he had been without oxygen for some length of time, and had chunky vomit around his face. The paramedics asked defendant what happened, and she replied that J.P. was sitting on the sofa coughing, and then all of a sudden he just quit coughing and stopped breathing. After determining that J.P. was not breathing and had no pulse, Kurylo picked J.P. up and told defendant they were going to the hospital. When Kurylo asked defendant whether she was coming, defendant said she could not.

In the ambulance on the way to the hospital, Kurylo noticed that J.P. had black marks on his neck about the width of a finger and other marks all over his body. J.P.'s left arm was swollen and discolored from the top of his shoulder to his elbow. At the hospital, Kurylo noticed that J.P. had "many, many wounds" across his back and buttocks in different stages of healing, injuries to the bottoms of his feet, and what appeared to be bite marks on his side and the back of his thighs.

On cross-examination, Kurylo acknowledged that in her narrative she wrote, "Assorted wounds over child's body, arms and fingers," but did not specify the nature or location of the wounds and did not mark J.P.'s injuries on the illustration of the human figure. She also did not note that J.P. was chalky white.

The parties stipulated that if called to testify, Dr. Allswede would have testified that J.P. arrived at the Ingalls Hospital emergency room in full cardiorespiratory arrest, was comatose, and did not respond to verbal or painful stimulation. After examining J.P., Dr. Allswede found whip marks of various ages on his thighs, arms, and front and back torso; bruises and abrasion to his chest, back, and left arm; blistering on his fingertips; a laceration to the right lower lip; fresh bruises and abrasions to both flanks; bruises to the left neck; and an abrasion and a hematoma to the left eye socket. Based on his medical training, education, and experience, Dr. Allswede would have testified that J.P.'s injuries were the result of child abuse.

The parties stipulated that on February 22, 1995, J.P. was transferred via helicopter to Wyler's Children's Hospital and arrived in a comatose state on an intubator. Bruises, lacerations, hematomas, abrasions, and cord marks were noted by doctors at Wyler's Children's Hospital, and a CT scan revealed severe brain injury with massive edema. The parties further stipulated that, if called to testify, Dr. Chaney would have testified that based on her medical training, education, and experience, it was her opinion that J.P.'s injuries were the result of child abuse. Finally, the parties stipulated that J.P. was pronounced dead at 7:33 a.m.

Assistant State's Attorney Frank Cece testified that in connection with the investigation of J.P.'s death, he spoke with Detective McGee, Dr. Allswede, the medical examiner's office, and J.P.'s siblings on February 22, 1995. Cece then spoke with defendant in an interview room at the police station. Cece introduced himself, asked whether defendant was under the influence of alcohol or drugs, and advised her of her constitutional rights. Cece and defendant then talked about what happened with J.P., and Cece reduced defendant's statement to writing.

Defendant related that she was the parent who would discipline the children, mainly for lying, and that although she usually used a belt on them, for the last couple of weeks she had been using a stick that was a piece of wall trim. Defendant related that after dinner on February 21, 1995, she went upstairs to the boys' room and found it "all in a wreck." Defendant found J.P.'s homework under his pillow. Earlier, J.P. had told defendant he did not have any homework. When defendant asked the children who broke the closet door, they first blamed each other, and then blamed their cousin. Defendant telephoned her sister and learned that her children denied breaking the door. Defendant stated, "That's when I went and got the stick."

Defendant related in her statement that she asked J.P. why his homework was not done and why he lied about not having any homework. When J.P. said he did not know or that he forgot, defendant told him "to get his ass into the dining room," where they started on his homework. Defendant told Cece that she would point to letters and ask J.P. what they were, but J.P. kept saying that he had forgotten them. Defendant related:

"When

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