People v. Rudell

• Citation: 78 N.E.3d 541,2017 IL App (1st) 152772
• Decision Date: 25 April 2017
• Docket Number: No. 1-15-2772,1-15-2772
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sara RUDELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 152772
78 N.E.3d 541

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Sara RUDELL, Defendant-Appellant.

No. 1-15-2772

Appellate Court of Illinois, First District, Second Division.

Opinion filed April 25, 2017

Jason R. Epstein, of Law Offices of Jason R. Epstein, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Jon Walters, and David J. Welch, Assistant State's Attorneys, of counsel), for the People.

OPINION

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 Sara Rudell challenges her conviction for child endangerment after leaving her six-month-old baby alone in a car. On appeal, she argues (i) the insufficiency of the evidence undermines her conviction, (ii) her trial counsel should have been allowed to move to suppress her statements to police after trial testimony had begun, (iii) the trial court should have granted her a new trial based on newly discovered evidence, and (iv) cumulative error requires reversal.

¶ 2 We reject each of these claims and affirm. There was sufficient evidence to support Rudell's conviction, based on the trial court's evaluation of witness credibility. The trial court did not abuse its discretion in refusing to hear a midtrial suppression motion, considering the details supporting that motion should have been recognized before trial. Nor did the trial court abuse its discretion in denying the motion for a new trial because Rudell's "newly discovered evidence" could have been discovered before trial, was not material, and was not sufficiently conclusive. And as we find no error, we reject her claim of cumulative error.

¶ 3 BACKGROUND

¶ 4 Rudell was charged with endangering the life of a child and public intoxication. She elected to waive a jury trial.

¶ 5 Chicago police officer Kevin Zia testified that on September 12, 2014, he

78 N.E.3d 543

was on patrol around 1:00 a.m. when a person flagged him down, telling him that a child had been left alone inside a car. Officer Zia went to the car (on the 1600 block of West Erie Street in Chicago) and found a roughly six-month-old baby in a baby seat in the rear of the car. The baby, who was crying, had on a onesie with no pants, socks, or shoes. The car was not running, and the rear window was open. Officer Zia contacted the fire department, and about three minutes passed between Officer Zia finding the baby and the baby being removed from the car.

¶ 6 Officer Zia then ran the car's license plate number through the police database and found it registered to Sara Rudell, at an address about two blocks away. Officer Zia went to that address and found Rudell sitting on the curb with an adult male. Zia smelled a strong odor of alcohol on Rudell's breath. He asked Rudell if she knew where her child was. Rudell responded that she had taken the baby to a party that evening, had drunk alcohol at the party, and had driven back but could not remember how her car came to be parked on West Erie Street and forgot that her child was inside. After speaking with Rudell, Officer Zia placed her in custody.

¶ 7 On cross-examination, Zia testified that when he first saw Rudell sitting on the curb, he asked her if she was Sara Rudell because she was the primary suspect: Zia knew that the car was registered to her and that the baby was in the car, so Rudell was not free to leave.

¶ 8 Rudell's attorney then asked for leave to file a motion to suppress Rudell's statements to police because she had not been Mirandized at that point. The police reports (provided in discovery) summarized Rudell's statements to police: she had gone to a friend's house and gotten drunk; after the party, Rudell parked her car and walked home but had no memory of walking home and had forgotten that her baby was in the car. The report stated that Rudell "was then placed in custody and transported" and noted that Rudell's breath smelled strongly of alcohol. Her attorney argued that the police reports, stating that Rudell had been placed in custody after being questioned by police, conflicted with Officer Zia's testimony that Rudell was not free to leave (and was therefore in custody) before police questioned her. The trial court denied leave to file this motion, stating that Rudell's attorney should have realized from reading the report before trial that Rudell had not been Mirandized.

¶ 9 Zia further testified that Rudell appeared extremely intoxicated, a 10 on a scale of 1 to 10. Rudell had stated she drove the car home, but Zia admitted that this statement was not in his police report. And the report also did not recite that the man sitting on the curb with Rudell was Joseph Rothenbuehler, Rudell's boyfriend, and Rothenbuehler told Zia that he had been inside the house and not out with Rudell.

¶ 10 Chicago police officer Calicdan, also on patrol that night, testified that when the police found Rudell, she was arguing with Rothenbuehler and crying. Rudell gave off a strong odor of alcohol. She told police that after drinking at a friend's house, she drove home but could not remember where she parked. She said her baby was in the car and she had gone to get Rothenbuehler so he could help her find the car. On cross-examination, Officer Calicdan admitted the police reports did not include Rudell's statement that she had sought out Rothenbuehler to help her.

¶ 11 At the conclusion of the State's case, Rudell's attorney moved for a directed verdict. The trial court inquired about the child endangerment statute, which provides, "a trier of fact may infer that a child

78 N.E.3d 544

6 years of age or younger is unattended if that child is left in a motor vehicle for more than 10 minutes." The trial court referred to this as a "permissive presumption": "if we have an inference which you just admitted to, a child in a car under the age of six, an inference goes unrebutted, unrebutted becomes a presumption." Rudell's attorney argued that he was not contesting that a crime had occurred, only who had committed it. The trial court denied the motion for a directed verdict.

¶ 12 Jamie Griffith, a Cook County sheriff's deputy, testified in Rudell's defense that on that evening, Rudell and Rothenbuehler had come to Griffith's home for 45 to 60 minutes with their baby and dog. They left around midnight. Rudell was extremely inebriated and could barely walk, so Griffith helped her to her car and put her in the passenger seat. Rothenbuehler was driving and said they were going home, a 5- to 10-minute ride.

¶ 13 Rothenbuehler, the baby's father, testified that on that evening he and Rudell had been at Griffith's home with their baby and dog. Rudell was intoxicated, so much so that it "was a little surprising to me." Rudell did not drive the car home. It took about five minutes for them to get home, and when they did, Rudell got out of the car first. Rothenbuehler then took some groceries out of the car.

¶ 14 On cross-examination, Rothenbuehler testified that he and Rudell had been at a barbecue before going to Griffith's house and Rothenbuehler drank three beers. He did not remember exactly how much time they spent at Griffith's home but thought they left before midnight. He put the baby in the car while Griffith helped Rudell in. They went directly home and parked about a block from their home. Rothenbuehler and Rudell argued, and Rudell got out of the car and took the dog. Rothenbuehler took the groceries to the front porch and returned to the car because he realized that Rudell did not have the baby. Rothenbuehler started to panic and was about to call the police when the police arrived.

¶ 15 On redirect examination, Rothenbuehler testified that he had assumed that Rudell had taken the baby with her and when he took in the groceries, he saw Rudell lying on a hammock on the front porch and realized the baby was still in the car. Five to ten minutes elapsed between the time he left the car and the time he realized the baby was missing. He ran back to the car, but the baby was gone, and the police were not there. When he spoke to the police, they told him to go home and go to bed.

¶ 16 On recross-examination, Rothenbuehler testified that he didn't remember if the police had asked him if he drove the car. He denied telling the police that he had not been with Rudell that evening or saying that he had been at home while Rudell was out.

¶ 17 Officer Zia testified in rebuttal that he did ask Rothenbuehler if he had been with Rudell that...