People v. Swart
| Decision Date | 29 December 2006 |
| Docket Number | No. 2-04-0417.,2-04-0417. |
| Citation | 308 Ill.Dec. 60,860 N.E.2d 1142 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jacquelyn A. SWART, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Thomas Michael Breen, Todd S. Pugh, Gina T. Marotta, Thomas M. Breen & Associates, Chicago, for Jacquelyn A. Swart.
Joseph E. Birkett, Du Page County State's Attorney, Lisa A. Hoffman, Assistant State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, Joan M. Kripke, State's Attorneys Appellate Prosecutor, Elgin, for the People.
A jury found defendant, Jacquelyn Swart, guilty of the first-degree murder of a 14-month-old girl, Alexandra Pirkins (Alex). See 720 ILCS 5/9-1(a)(2) (2004). The trial court imposed a 35-year prison term. The State's theory of the case is that Alex succumbed to "shaken baby syndrome" while in defendant's care. Defendant denies shaking Alex, and at trial, she attempted to introduce evidence that Alex suffered an "undetected injury" during the days preceding her death.
On appeal, defendant argues that (1) the State's medical experts were not credible and (2) the prosecutor committed reversible error by suggesting during closing argument that defendant abused Alex not only on the date of her death but also five days earlier. Notably, at trial, defendant neither challenged the admissibility of the State's expert testimony pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir. 1923), nor objected to the prosecutor's comments. We affirm.
On April 7, 1998, Alex was born to Todd and Wendy Pirkins. Beginning 10 weeks after Alex's birth, the Pirkins employed defendant, the wife of Wendy's coworker, to provide daycare for Alex in defendant's apartment. Defendant cared for Alex for approximately one year, until she was hospitalized on Monday, June 21, 1999. Defendant and her husband have two children of their own: "Nemesis," a boy who was six years old at the time of the incident, and "Felix," a girl who was Alex's age. Before Felix was born, defendant worked at a Kindercare facility, where she received child abuse training. Defendant was told that shaking a baby is dangerous and can be fatal.
Detectives Timothy Connell and Tim Garnish interviewed defendant as part of the investigation. Defendant denied shaking her own children and insisted that "she had never handled Alex roughly, nor shaken her, nor [had] she ever struck her in any way."
Wendy, Todd, their family members, and defendant testified about the days immediately preceding Alex's death. On the morning of Wednesday, June 16, 1999, Wendy dropped Alex off at defendant's apartment, as was customary. Ordinarily, Alex napped for 1 to 1½ hours after lunch. However, when Wendy returned at 5 p.m., Alex was still sleeping, and defendant stated that she did not wish to wake Alex because Alex had been "very crabby" that day. Alex behaved normally the rest of the evening, but she took longer than usual to fall asleep, which Wendy attributed to the long nap.
Each day, defendant prepared handwritten notes chronicling Alex's activities, meals, and moods, and Wendy would read them upon returning home with Alex. On June 16, defendant wrote that "Alex has been pretty crabby all day" and that defendant had to put her back down to sleep as "nothing else made her happy."
Wendy testified that, on Thursday, June 17, 1999, Alex behaved normally except that she drooled constantly and was more whiny and "needier" than usual, because she was teething. Todd testified that the teething had interfered with Alex's sleep for two weeks before her death. When Wendy took Alex to defendant's apartment, she instructed defendant to limit Alex's nap. Wendy arrived to pick up Alex at defendant's apartment in the evening, and when Alex stood to walk toward her mother, she vomited. Defendant told Wendy that Alex must have vomited because she ate prunes that day and that Alex had been "kind of cranky" for the half hour before Wendy's arrival. Detective Connell testified that defendant told him about the vomiting episode.
Wendy testified that Alex was quieter than usual on the drive home. However, Alex ate her dinner normally and did not vomit that evening. Wendy did not recall if she told the police that Alex was lethargic on the way home.
On June 17, defendant wrote a note asking, "is it Friday yet?" However, defendant thought that she had probably written "a smiley face at the end of it."
Wendy described Alex's behavior on the morning of Friday, June 18, 1999, as "typical." When Wendy brought Alex to defendant's home, Alex had not yet finished her bottle, so Wendy stayed a bit longer and played with Alex when she became "whiney." Wendy coaxed Alex into a good mood through play, but Alex vomited and began to cry. Wendy left, and defendant put Alex down for her nap from 9 to 10:30 a.m. Defendant informed Wendy by telephone that Alex had taken her morning nap and could eat toast. At 11:30 a.m., Wendy retrieved Alex and went to a company picnic as planned. Defendant also attended the picnic.
Alex was a bit shy at the picnic, but eventually ate and got involved chasing a huge ball. Alex missed her afternoon nap, and about five other adults watched Alex while Wendy played in a softball game. One of the adults testified that Alex fed herself Cheerios, drank juice from a cup, and otherwise appeared normal for a 14-month-old girl. Wendy took Alex home at 4 p.m.
On Friday evening, Wendy and Todd attended a play. Scott and Laurie Pirkins, Todd's brother and sister-in-law, watched Alex. Laurie testified that Alex did not vomit but was fussy during dinner. After an evening stroll with Alex, Laurie and Scott readied Alex for bed and reported to her parents that Alex was "fine." Wendy and Todd retrieved Alex at approximately 2 a.m. and took her home.
On Saturday, the Pirkinses prepared their home for a Father's Day party the next day. Wendy testified that Alex awakened, drank her bottle, and by 9 a.m. was in the basement with Todd and a family friend who were assembling a pool table. Alex was "walking and laughing and running around." Alex did not appear injured in any way.
Wendy's mother arrived at 10 a.m., and Alex napped for a half-hour. Wendy, her mother, and Alex went to the mall, where Alex was alert and interested in her surroundings. Alex ate, ran, and walked around the mall until the three returned home at 6 p.m. Like the day before, Alex missed her afternoon nap. Todd played with Alex, bathed her, and put her to bed between 8:30 and 9 p.m. Alex slept through the night.
On Father's Day, Alex awoke at 7 a.m. and Wendy gave her a bottle of milk. At 12:30 p.m., Wendy fed her again and put her down for her morning nap. Alex had no difficulty eating. The party guests began arriving at 1:30 p.m., and Alex was awakened by the commotion. Alex played with her grandmother and aunt and appeared fine. Later in the afternoon, Wendy and several others left to purchase Alex some outdoor toys, including a plastic bubble car and a slide. The family activity prevented Alex from taking her afternoon nap.
Wendy and Todd testified that Alex played on the slide "nonstop." Once, Alex slid down faster than usual and her head was "pushed back" against the slide. Alex whined but did not cry. When she reached the bottom of the slide, she immediately stood and ran around to continue using it. Wendy, Todd, and two other family members testified to Alex's reaction to hitting her head. Wendy and Todd testified that Alex ate dinner and became very tired near the end of the evening. Wendy and two others testified that Wendy put Alex to bed between 8 and 8:30 p.m. and that Alex fell asleep quickly.
On Monday, June 21, 1999, Alex awoke at approximately 6 a.m., which was an hour earlier than usual. Wendy placed Alex on Wendy's waterbed, and after resting a short time, Alex began to play. Alex was "on all fours" looking at her reflection in the mirror hung behind the headboard, and she started crawling toward the mirror. Wendy testified that Alex "slipped a little" and bumped her forehead on the headboard. Alex did not cry, and the bump resulted in a small red mark over her eyebrow.
Wendy set Alex on the floor to play with some toys, and Alex became progressively "whinier" and wished to be picked up. Wendy gave her a bottle of milk and lay on the couch with her. Alex finished the entire eight-ounce bottle, and Wendy returned her to the crib, where she fell asleep immediately.
Wendy called defendant and told her that she and Alex would be late that morning. Wendy wished to sleep in that morning, but she falsely told defendant that she was waiting for a repairman. Wendy explained that she lied because she could come and go to work as she pleased, unlike defendant's husband, who might be resentful of Wendy.
At 8 a.m., Alex was still sleeping, and Wendy called defendant to say she planned to let Alex sleep in so they would not have a "bad Monday." Wendy explained that Mondays were the hardest day of the week for Alex. Alex awoke after 9 a.m. and ate scrambled eggs, and Wendy took her to defendant's apartment. During the drive, Alex was in a "great mood" and was "playful — [in] her typical happy, jolly mood."
Wendy carried Alex from the car to defendant's door and set her down. Alex leaned on the door and "stumbled a bit" when it opened. Wendy and defendant conversed and Alex ran through the kitchen, took magnets off the refrigerator door, and handed them to Felix, defendant's daughter. Wendy testified that she told defendant that the family had a busy weekend, Alex had not napped much, and Alex had been "a little fussy" that morning but was in a much better mood. Defendant testified that Wendy told her that Alex was "cranky and fussy all weekend"...
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