People v. Pollock

• Decision Date: 18 October 2002
• Docket Number: No. 90960.,90960.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Tabitha POLLOCK, Appellant.
• Court: Illinois Supreme Court

780 N.E.2d 669

202 Ill.2d 189

269 Ill.Dec. 197

The PEOPLE of the State of Illinois, Appellee, v. Tabitha POLLOCK, Appellant.

No. 90960.

Supreme Court of Illinois.

October 18, 2002.

Rehearing Denied December 2, 2002.

Jane E. Raley, Lawrence C. Marshall, Chicago, R. Linus Chan, Michele Kunitz, Haley Schaffer, Jennifer Smiley, Ashley Brant, Kristin Cowan, Steven Heiser, Kerry Hotopp, Brianna Smith, Emilio Torres-Lumsden, Gregory Swygert, Stephanie Weiner, law students, for appellant.

James E. Ryan, Attorney General, Springfield, Terrence Patton, State's Attorney, Cambridge (Joel D. Bertocchi, Solicitor General, William L. Browers, Colleen M. Griffin, Assistant Attorneys General, Chicago, of counsel), for the People.

Chief Justice McMORROW delivered the opinion of the court:

On November 3, 1995, defendant Tabitha Pollock was indicted in the circuit court of Henry County on charges of first degree murder (720 ILCS 5/9-1(a)(2), (a)(3) (West 1994)) and aggravated battery of a child (720 ILCS 5/12-4.3(a) (West 1994)) after her three-year-old daughter, Jami Sue Pollock (Jami), died as a result of being struck by defendant's paramour, Scott English (Scott). A jury found defendant guilty of felony murder (aggravated battery of a child) and aggravated battery of a child on a theory of accountability. The conviction for aggravated battery of a child was merged with the murder conviction and defendant was sentenced to a term of 36 years' imprisonment for the murder conviction.

Defendant appealed her conviction and sentence to the appellate court. In a published opinion, defendant's conviction for murder was affirmed.¹ 309 Ill.App.3d 400, 242 Ill.Dec. 662, 721 N.E.2d 1193. Thereafter, defendant's petition for leave to appeal was granted. 177 Ill.2d R. 315. For reasons that follow, we now reverse defendant's convictions.

BACKGROUND

The evidence of record indicates the following.

At 4:58 a.m. on October 10, 1995, a Kewanee ambulance manned by two emergency medical technicians (EMTs) arrived at 720 Pleasant Street in Kewanee, Illinois, in response to a 911 call that a three-year-old child was not breathing. Upon their arrival, the EMTs were immediately directed to the upstairs of the home, where they found defendant performing cardiopulmonary resuscitation (CPR) on a small child, later identified as Jami. According to James Heisner, one of the EMTs, Jami's skin tone was bluish and she was unresponsive, but her body was warm. Scott told Heisner that he discovered Jami's lifeless body wrapped in her blankets when he checked on Jami and her brother, Preston, who had been sleeping on a waterbed in another bedroom.

Jami was immediately transported to Kewanee Hospital. Defendant rode in the ambulance and assisted in continuing CPR on Jami while en route. They arrived at the hospital at 5:05 a.m. There the emergency room staff, headed by Dr. Renato Parungao, took over resuscitation efforts. Dr. Parungao and his staff worked on Jami for nearly an hour, but Jami never showed any signs of revival. When the hour passed without any success, resuscitation efforts were terminated and Jami was pronounced dead.

Although one police officer who responded to the English home testified that defendant appeared emotionless, several other witnesses testified otherwise. Heisner, one of the EMTs, testified that defendant was working diligently at trying to revive Jami when they arrived at the English home. When his partner took over doing CPR, Heisner said, defendant appeared shaken and frightened. Defendant asked to accompany Jami in the ambulance and seemed deeply concerned.

Karen Heying, a nurse at the hospital, testified that she was assigned to stay with defendant while the emergency room staff worked on Jami. Heying described defendant as "frantic." Heying said she and defendant paced the floor in an attempt to keep defendant calm, but when defendant was told that Jami could not be saved, defendant had a complete emotional breakdown.

After Jami was pronounced dead, defendant was allowed to hold Jami. She sat rocking Jami for a long while. When they took Jami from defendant, defendant collapsed on the floor and cried uncontrollably.

There was no apparent cause for Jami's death. Dr. Parungao, having noticed some bruises on Jami, asked an emergency room nurse to make a detailed record of Jami's physical condition, documenting every noticeable mark on Jami's body. In addition, the coroner ordered that an autopsy be performed.

Dr. Parungao previously had seen Jami on October 7 when Jami was brought to the emergency room by Scott, who reported that Jami hit her head on the sink when she fell off a cookie tin in the bathroom while trying to brush her teeth. Dr. Parungao sutured a cut on Jami's head. He accepted the story given him by Scott and saw nothing at that time which made him suspect that Jami was being abused.

Terri Chapman, a registered nurse at Kewanee Hospital, was working in the emergency room on the morning of October 10, 1995. She assisted Dr. Parungao in attempting to resuscitate Jami and, when their attempts failed, she called the coroner, who, in turn, reported the death to the police. Upon Dr. Parungao's order, Chapman made a detailed inspection of Jami's body. According to her notes, there were 11 marks on Jami's body, which she described as follows: three nickel-to quarter-sized bruises across her upper back; one two-to five-centimeter abrasion down the middle of her back; one quarter-to half-dollar-sized bruise just above her left elbow, one half-dollar-sized bruise on her left buttock; one half-dollar-sized bruise on her right hip; three quarter-sized bruises on her left rib area; and a bruise on her shin. Chapman also noted the healing laceration on Jami's head, where Jami had received stitches a few days earlier. Chapman later testified at defendant's trial that, based on her knowledge and experience regarding bruises and their coloration over time, she was of the opinion that Jami's bruises were of different ages. Some of the bruises were "bluish," indicating to her that the bruise was 2 to 3 days old. Some bruises were "greenish," indicating an age of 4 to 5 days and some were "brownish-yellow," indicating an age of 10 to 14 days old. Chapman said the bruises on the hip, buttocks, and shin appeared to be the oldest, while the ones on Jami's rib area and upper back appeared to be newer.

On the afternoon of October 10, 1995, the date of Jami's death, Dr. Violette Hnilica, a forensic pathologist, began an autopsy on Jami's body to determine the cause of her death. The autopsy first involved an external examination, followed by an internal examination which was conducted the next day. Dr. Hnilica testified that the autopsy took a great deal of time because she, in conjunction with police investigators and crime-scene technicians, collected and preserved evidence throughout the autopsy. Using various techniques, including ultraviolet light, Jami's body, as well as her clothing and bed linens, were examined, and attempts were made to match patterns from various items to marks found on Jami's body.

In general, Dr. Hnilica's external examination revealed "bruises of various ages over her body" and "splotchiness of color over her face with areas of pallor or paleness." A detailed visual inspection of Jami's body revealed the following: a greenish-blue bruise on the upper-right chest; a greenish-blue bruise mid-chest, near the right breast; a bluish-green bruise in the right abdomen; a greenish-brownish bruise on the left chest, near the armpit; a green contusion mid-chest, near the left breast; and a greenish bruise on the mid to upper back. Dr. Hnilica testified that the above-noted bruises were ones that appeared to be older in age—at least days in duration. She later admitted on cross-examination that none of these older injuries appeared life-threatening and all of the bruises could have been attributable to accidental childhood injuries.

With the aid of ultraviolet light, however, Dr. Hnilica found several additional bruises or marks which, in her opinion, had occurred just minutes or, at the most, hours prior to Jami's death. The recent injuries included: an area of swelling just above the right ear; a faint purple bruise on the tip of the right ear and a larger purplish bruise on the lower part of the right ear; "splotchy coloration" (mixed areas of paleness and pinkness) of the face (across the cheeks, bridge of nose, and mouth); abrasions on the sides and tip of the nose; a bruise and scraped area under her chin; a large area of bruising (extensive and not well-defined) across her chest, accompanied by "curved claw marks" which were later matched to Jami's own left-hand fingernails; bruising to the left breast area and upper abdomen; and two areas of scrapes in the left lower chest area. On Jami's back there were bruises to the skin along the vertebral process (spine) and faint bruises over the upper back area. Slightly older bluish bruises were found on the right buttock, the left hip, and the right forearm, but on the left forearm there was a newer pinkish bruise.

Dr. Hnilica explained that areas of pallor, such as that observed on Jami's face, can occur "when something presses the blood out of the facial tissues," as in smothering. Also, asphyxia can cause petechiae—ruptures of the tiny blood vessels—in the eyelids, face, and oral mucosa, as well as the upper neck and in the thymus gland. Petechiae were found in the conjunctiva of Jami's eye and her thymus gland, consistent with her being smothered. Further, the clawing marks found on Jami's chest were also indicative of smothering. Dr. Hnilica testified that a smothering victim often will claw at the thing obstructing their ability to breath and, in doing so, injure themselves in this manner.

When conducting the internal examination of Jami, Dr. Hnilica peeled back Jami's scalp. In doing so, Dr. Hnilica was able to determine that the swelling,...