People v. Sanders

• Decision Date: 06 November 2006
• Docket Number: No. 3-04-0551.,3-04-0551.
• Citation: 857 N.E.2d 948
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donnell L. SANDERS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

857 N.E.2d 948

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donnell L. SANDERS, Defendant-Appellant.

No. 3-04-0551.

Appellate Court of Illinois, Third District.

November 6, 2006.

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Robert Agostinelli, Deputy Defender (Court-appointed), Office of the State Appellate Defender, Ottawa, and Kenneth Hogan (Court-appointed) (argued), Galesburg, for Donnell L. Sanders.

Lawrence M. Bauer, Deputy Director, Rita Kennedy Mertel (argued), State's Attorneys Appellate Prosecutor, Ottawa, Kevin W. Lyons, State's Attorney, Peoria, for the People.

Justice CARTER delivered the opinion of the court:

After a jury trial, the defendant was convicted of first-degree murder (720 ILCS 5/9-1(a)(2) (West 1999)) and sentenced to 75 years' imprisonment. On direct appeal, the conviction was reversed and the case was remanded for a new trial. After a second jury trial, the defendant was again convicted of first degree murder and again sentenced to 75 years' imprisonment. The defendant appeals a second time. In this, the direct appeal from the defendant's second jury-trial conviction, the defendant argues: (1) that the trial court committed plain error in providing an inadequate and misleading response to a jury question; (2) that defense counsel provided ineffective assistance of counsel in regards to the jury question; and (3) that the trial court erred in admitting the prior testimony of one of the plaintiff's expert opinion witnesses who had testified at the first trial but had died before the second trial. We affirm.

FACTS

In February of 1999, the defendant was charged with the first degree murder of twenty-three month old Kareena Davis (the victim). The indictment alleged that the defendant violently shook the victim and struck the victim's head, knowing that such acts created a strong probability of great bodily harm to the victim and thereby causing the death of the victim. The case proceeded to a jury trial in August of 2000. The defendant was found guilty and was subsequently sentenced to 75 years' imprisonment. The conviction was reversed on direct appeal and the case was remanded for a new trial. A second jury trial was held in May of 2004.

The evidence presented at the second jury trial showed that the victim was fatally injured while her mother was at work and the defendant was watching her. The defendant did not call 911 immediately. The autopsy showed that the victim had marks of bruising around her chin and her arms, an impact site on the back of her head, swelling of the brain, a subdural hemorrhage that matched the impact site, and massive retinal hemorrhages. The pathologist that conducted the autopsy concluded that the victim died from blunt force injuries to the head. The State presented the testimony of the emergency room doctor that treated the victim, the pathologist that conducted the autopsy and two expert opinion witnesses to support its theory of the case—that the victim died as a result of shaken impact syndrome.¹ That is, that the defendant had shaken the victim and that during the shaking, the victim's head had impacted an object causing the victim's death.

Over the defendant's objection, the testimony of one of the State's expert opinion witnesses, Dr. Robert Kirschener, was presented to the jury in the form of a deposition.² Kirschener had testified for the State at the defendant's first jury trial but had died before the second trial. During his testimony in the first trial, Kirschener was cross-examined by defense counsel about the existence of an opinion in the medical community contrary to his own. Kirschener acknowledged that such an opinion existed and stated that Dr. John Plunkett was one of those people that held a contrary opinion to his own.

The defense's theory of the case was that the victim died, not as a result of shaken impact syndrome, but as the result of an accident from falling down the stairs. The defendant testified at the second trial that he found the victim at the bottom of the stairs after hearing what he described as a thump sound. The defendant denied that he had shaken or struck the victim. Defense counsel presented the testimony of an expert opinion witness, Dr. Plunkett, who testified in support of the defense's theory of accidental death. Dr. Plunkett had published an article entitled, "Fatal Pediatric Head Injuries Caused By Short Distance Falls" in the American Journal of Forensic & Medical Pathology in 2001 (after the first jury trial but before the second jury trial).

Prior to deliberating, the jury was instructed on the law, including the elements of first degree murder. That instruction provided as follows:

"To sustain the charge of First Degree Murder, the State must prove the following propositions: (f)irst (p)roposition: (t)hat the defendant performed the acts which caused the death of Kareena Davis; and (s)econd (p)roposition: (t)hat when the defendant did so, he knew that his acts created a strong probability of death or great bodily harm to Kareena Davis. If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty. If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty."

During the course of deliberations, the jury sent the following question to the judge:

"Question on the second proposition that when the defendant did so, is the basis for our decision whether he knew he could or did he have the intent to create a strong probability of death or great bodily harm . . .? Is intent required?"

After receiving the question, with the defendant present, the trial judge consulted with the attorneys for both sides. The following conversation ensued:

"[THE COURT:] On the record in 99 CF 91, defendant Mr. Sanders present, all counsel present. The jury had a question, and it is in writing and the court has shared the question with counsel for both sides. Any input from the State?

MS. MERMELSTEIN: Well the State believes that the answer is intent is not required, not by the way it was charged or not by the issues instruction.

THE COURT: And do you wish the Court to answer that accordingly?

MS. MERMELSTEIN: Yes.

THE COURT: Input from the defense?

MR. FLANAGAN: I believe the instructions should remain as they are, your Honor.

THE COURT: All right. They are—I don't think anyone is suggesting any further instruction. The Court will answer the question. It is a simple question, is intent required, and the answer simply is no. But I'll also add in there `please follow all jury instructions'. We'll give this to the bailiff, and please tell the jury to retain this so it's part of the record. As far as the hour, the Court is of the reasoning that the jury should be sent home, but we'll let them digest this here at least. Give this to the foreperson.

THE BAILIFF: Yes, sir."

After discussing the matter with both parties, the trial court responded in writing to the jury question as follows: "No, please follow all jury instructions."

The defendant was subsequently found guilty of first degree murder. The defendant filed a motion for new trial alleging, among other things, that the trial court erred in its response to the jury's question regarding "intent" and that the trial court erred in admitted the prior testimony of Dr. Kirschener. The trial court denied the motion and again sentenced the defendant to 75 years' imprisonment. This appeal followed.

ANALYSIS

As his first point of contention on appeal, the defendant argues that the trial judge erred in his response to the jury question. The defendant characterizes the jury's question as one concerning the mental state "knowing" and asserts that in response to the question, the trial court should have given the jury the pattern instruction defining knowledge (IPI Criminal No. 5.01B). The defendant argues further that the response that was given was inadequate and potentially misleading.

Generally speaking, a jury need not be instructed on the term knowingly because that term has a plain meaning within the jury's common knowledge. People v. Powell, 159 Ill.App.3d 1005, 1013, 111 Ill.Dec. 727, 512 N.E.2d 1364, 1370 (1987). However, the trial court has a duty to instruct the jury further when clarification is requested, when the original instructions are insufficient or when the jurors are manifestly confused. People v. Reid, 136 Ill.2d 27, 39, 143 Ill.Dec. 239, 554 N.E.2d 174, 179 (1990). In responding to a jury question, the trial court must do so with specificity and accuracy. People v. Shaw, 186 Ill.2d 301, 320, 239 Ill.Dec. 311, 713 N.E.2d 1161, 1172 (1998). The trial court has discretion in determining how best to respond to a jury question. See Reid, 136 Ill.2d at 38-39, 143 Ill.Dec. 239, 554 N.E.2d at 179. We will review any such response for an abuse of discretion. See Reid, 136 Ill.2d at 38-39, 143 Ill.Dec. 239, 554 N.E.2d at 179.

Before we reach the merits of this issue, we must first determine whether the issue has been waived. It is well settled that to preserve an issue for appeal, a defendant must object at trial and must include the issue in a post-trial motion. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124, 1130 (1988). The defendant acknowledges that the issue was not properly preserved—defense counsel did not make a contemporaneous objection to the response and acquiesced in the giving of the response—but argues that we should reach the merits of this issue as plain error.

The plain-error doctrine is a very narrow exception to the waiver rule and allows a reviewing court to reach a forfeited error in two limited circumstances: (1) where the evidence is close, regardless of the seriousness of the error, or (2) where the error is serious, regardless of the closeness of the evidence. People v. Herron,...