People v. Pollock
| Decision Date | 10 December 1999 |
| Docket Number | No. 3-96-1077.,3-96-1077. |
| Citation | 309 Ill. App.3d 400,242 Ill.Dec. 662,721 N.E.2d 1193 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tabitha POLLOCK, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Tracy McGonigle, Office of the State Appellate Defender, Chicago, for Tabitha Pollock.
Rita Kennedy Mertel, John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, Ted J. Hamer, Henry County State's Attorney, Cambridge, for the People.
The defendant, Tabitha Pollock, was convicted of first degree murder (720 ILCS 5/9-1 (West 1996)) and sentenced to 36 years in prison. On appeal, she contends: (1) the State failed to prove beyond a reasonable doubt that she knew that her boyfriend was beating her daughter; (2) the State deprived her of a fair trial when, during closing arguments, it vouched for the credibility of one of its witnesses and misstated the law on accountability; (3) the trial court erred in giving nonpattern jury instructions on accountability; (4) the trial court erred in admitting evidence of the defendant's prior bad acts; and (5) the truth-in-sentencing law is unconstitutional. We modify the defendant's sentence to allow her to receive day-for-day good time credit and in all other respects affirm the judgment of the circuit court.
In the early morning hours of October 10, 1995, emergency medical personnel responded to a call from the home in which the defendant lived with her boyfriend, Scott English. Also residing in the home were her three children, English's parents, the girlfriend of English's brother and the girlfriend's child. When the emergency crew arrived at the home, they found the victim, the defendant's 3½-year-old daughter, lying on the floor of an upstairs bedroom. The defendant was attempting to perform cardio-pulmonary resuscitation. The crew transported the child and the defendant to the hospital.
At the hospital, medical personnel attempted for an hour to revive the victim. When their efforts proved fruitless, the treating physician informed the defendant that her daughter was dead. The treating physician testified at the defendant's trial that he had sutured a laceration on the victim's head a few days before her death. At that time, he did not suspect child abuse because injuries of that nature are not uncommon in small children. However, when the victim was brought in on the morning of her death, the doctor suspected foul play and instructed the attending nurse to document the victim's injuries.
The attending nurse testified that she noted 11 injuries, 10 of which could have indicated child abuse. The victim had bruises on her back, her left elbow, her left buttock, her left ribcage and her right hip.
The forensic pathologist who conducted the autopsy on the victim determined the cause of death to be blunt force trauma and asphyxiation. The doctor observed over 100 bruises in various stages of healing on the victim's body, including bruises on her chest and abdomen which would have been inflicted in the hours before her death. The doctor also noted curved claw marks on the victim's chest that exactly matched the victim's left fingernails. He testified that these wounds are typically found when a victim has been strangled and, in the moments preceding death, has used her fingernails to claw at the object that is strangling her. The doctor found small ruptures of the blood vessels in the victim's face, which suggested that something had been held over the victim's nose and mouth.
When the doctor conducted her internal examination of the victim, she found 13 distinct hemorrhagic injuries to the victim's skull. Eight of these injuries were three to four days old. The internal examination also revealed more extensive bruising of the victim's chest, abdomen and head.
The defendant's boyfriend gave a statement to police in which he admitted striking the victim in the head shortly before she was found dead. He told the police that the victim had recently begun winding herself up in her blanket as she slept. On that night, the boyfriend found the victim asleep with her blanket wound around her. He struck her in the back of the head to make her stop winding herself in the blanket. When he checked on the victim a little while later, he noticed that she was not breathing and carried her into the room he shared with the defendant.
When she was questioned by police, the defendant denied ever striking the victim and denied knowing about any abuse of the victim. She did tell the police that she had noticed injuries to the children in the weeks preceding the victim's death. She noticed marks on her son's neck, and her son told her that her boyfriend had choked him. The boy also told her that he had been injured when playing with friends. Her boyfriend said he mistakenly grabbed the boy around the neck when the boy began to fall while in the bathtub. The defendant also told the police about a similar incident in the bathtub which resulted in injuries to the victim. According to the defendant, her boyfriend told her that the victim attempted to get into the bathtub and stepped on the youngest child. When the boyfriend pushed the victim off the youngest child, the victim slipped and fell and was bruised.
The defendant told police of other incidents when she found bruises on the victim's face and believed they were caused by falls from the bed. Once, her boyfriend told her that the victim had been injured when she "fell" down the stairs and into a chair at the bottom. Days before the victim's death, the defendant returned home to find that the victim had supposedly fallen off a stool while trying to reach the toothpaste on the bathroom counter. Her fall on that occasion resulted in stitches to her head.
In her statement, the defendant said that she and her boyfriend split the task of disciplining the children evenly. She knew that the victim believed that her boyfriend was "mean," and she knew that her boyfriend thought that the victim was a "momma's girl."
According to the defendant, her boyfriend had arrived home at 12:40 a.m. on the morning of the victim's death. The children were in bed. Her boyfriend checked on the children once and returned to tell the defendant that the victim had been wrapped up in her blankets but he had fixed them. Later, her boyfriend checked on the children again. Finally, around 5 a.m., her boyfriend brought the victim into their bedroom, telling the defendant that something was wrong with the victim.
The defendant's mother and sister testified that they had seen bruises on the defendant's children after the defendant moved in with her boyfriend. The children told stories about the defendant's boyfriend choking them, but the adults dismissed the stories. Neither the defendant's mother nor sister suspected that the defendant's boyfriend was abusing the victim.
A friend of the defendant, and a babysitter for the children, testified that she had observed bruises on the victim after the defendant moved in with her boyfriend. On one occasion, the victim told the babysitter that the defendant's boyfriend had choked her. The victim illustrated her claim by placing her hands around her throat. The defendant was there and saw and heard the victim's claim. However, the defendant dismissed the allegations because of the victim's age.
Several witnesses for the State testified that the defendant did not keep her children, or their clothes, clean. Some of the witnesses had reported the defendant to the Department of Children and Family Services (Department) for this reason. The Department, however, had never found any evidence of abuse regarding the defendant's children.
One witness testified that on one occasion the defendant instructed her two oldest children, the victim and her older brother, to walk alone along the Mississippi River late at night in order to retrieve an item that had been left on the bank. This witness further testified that the defendant had allowed the victim to climb a bookcase which nearly fell over on top of the victim. Someone other than the defendant had to rescue the victim before she was hurt.
Many witnesses testified that the defendant was a caring mother who never abused her children. These witnesses testified that the children never showed signs of physical abuse.
During closing arguments, the State asked the jury to remember how the defendant's friend and babysitter had looked when she took the witness stand. The State characterized the look as "apologetic" and argued that the babysitter knew she would be getting the defendant into trouble with her testimony. The State further argued that the babysitter had no reason to come into court and lie about her friend. The State touched on the law of accountability in its argument as well. It noted that the law of accountability "has expanded" to include cases in which a parent fails to protect a child from an abuser.
At the conclusion of the trial, the court gave the standard accountability jury instruction. Illinois Pattern Jury Instructions, Criminal, No. 5.03 (3rd ed.1992) (hereafter IPI Criminal 3d). That instruction provides that "[a] person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of the offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense." IPI Criminal 3d No. 5.03.
Over the defendant's objection, the trial judge also instructed the jury using three nonpattern instructions. These instructions were based upon the decision in People v. Stanciel, 153 Ill.2d 218, 180 Ill.Dec. 124, 606 N.E.2d 1201 (1992). State's instruction No. 10 stated: ...
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People v. Pollock
...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 d......
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People v. Pollock
...Pollock, of aggravated battery and felony murder of her 3 ½-year-old daughter. This court affirmed. People v. Pollock, 309 Ill.App.3d 400, 242 Ill.Dec. 662, 721 N.E.2d 1193 (1999). A divided panel of our supreme court found “insufficient evidence to support the inference that, prior to [the......