No. 2--01--0769

JUSTICE GROMETER delivered the opinion of the court:

Defendant, Gene R. Bilski, pleaded guilty to a charge offirst-degree murder (720 ILCS 5/9--1 (West 1998)). Following asentencing hearing, the trial court imposed a sentence of 63 years'imprisonment. Defendant now appeals this sentence. For thereasons that follow, we affirm.

Before turning to the merits of this appeal, we wish toaddress the importance we attach to parties' compliance with thesupreme court rules that govern the form and content of appellatebriefs. Upon reviewing defendant's opening brief, we noted thatdefendant failed to comply with a number of these rules. Mostproblematic was defendant's persistent failure to provide pinpointcitations to the cases upon which he relies. Rule 341(d) statesthat "[c]itations shall be made as provided in Rule 6." OfficialReports Advance Sheet No. 21 (October 17, 2001), R. 341(d), eff.October 1, 2001. Rule 6 requires that "[c]itations of cases mustbe by title, to the page of the volume where the case begins, andto the pages upon which the pertinent matter appears in at leastone of the reporters cited." (Emphasis added.) 145 Ill. 2d R. 6. The failure to comply with these rules justifies finding anargument waived. See Chicago Title & Trust Co. v. Weiss, 238 Ill.App. 3d 921, 927-28 (1992). As the application of these ruleswould have resulted in defendant's waiving all of his arguments, weissued a rule to show cause why this appeal should not bedismissed. Defendant subsequently filed an amended brief thatcomplied with the applicable rules. Hence, we will proceed to themerits of defendant's arguments.

I. BACKGROUND

Defendant entered an Alford plea (see North Carolina v.Alford, 400 U.S. 25, 37, 27 L. Ed. 2d 162, 171, 91 S. Ct. 160, 167 (1970) (holding a defendant is entitled to enter a guilty pleawhile maintaining his or her innocence)) to a charge of first-degree murder (720 ILCS 5/9--1 (West 1998)) arising out of thedeath of 57-day-old Trinity Bilski. Defendant was not Trinity'sbiological father. Pursuant to a plea agreement, he was to receivea sentence of between 20 and 75 years' imprisonment. A sentencinghearing was held on March 13, 2001.

At the hearing, Jeffrey Norris, a police officer, was thefirst to testify. Norris stated that paramedics were called to theresidence of defendant and Cheryl Issacson, Trinity's mother, onthe evening of December 30, 1999. Upon their arrival, they founddefendant and Issacson in the front yard; defendant was holdingTrinity. Trinity was transported to the Northern Illinois MedicalCenter, where she was pronounced dead upon arrival. Norrisproceeded to the hospital and was informed by the paramedics thatthe emergency-room doctor was suspicious as to the cause ofTrinity's death. The doctor observed specks of blood in Trinity'seyes, which is common in child-abuse cases.

Norris and a deputy coroner interviewed defendant andIssacson. Issacson related that during the day Trinity appeared tohave a cold, was fussy, and was not eating properly. She anddefendant decided to go to the store to get some groceries andmedication. Between 4:30 and 5 p.m., Trinity was refusing to eat. Her gums were clenched so that Issacson could not insert the nippleof her bottle. Upon their arrival home, Issacson removed Trinityfrom the car and defendant unloaded the groceries. She placedTrinity on the floor in her car seat and started to put thegroceries away. About 10 minutes later, she removed Trinity fromthe car seat and noticed that she was limp and blue. Defendanttold Issacson to call 911, and he attempted to performcardiopulmonary resuscitation (CPR) on Trinity. At this point,they went outside to await the ambulance. Issacson also relatedthat she had been home all day and she had not observed any bruisesupon Trinity prior to calling the ambulance.

Norris also interviewed defendant at the hospital. Defendantlargely agreed with what Issacson had related to Norris. He didnot indicate during this interview that he had any knowledge as tohow Trinity had become injured. He also did not state whether hehad been alone with the infant that day.

The next morning, Norris was present at the autopsy that wasperformed upon Trinity. The autopsy was performed by Dr. LawrenceBlum. Dr. Blum noted a small swelling on Trinity's forehead, whichhe said was unusual and a cause for concern, as well as two smallbruises on the left side of her head. An internal examinationrevealed three fractured ribs; one fracture showed signs ofhealing. Dr. Blum also discovered three fractures on the infant'sskull. Finally, the doctor observed hemorrhages in Trinity's body,head, and eyes. Dr. Blum believed that death was the result ofsevere trauma to the head from a blunt object.

Defendant and Issacson were interviewed a second time at theFox Lake police department. She reiterated the version of eventsthat she had given the night before. Issacson stated that she didnot know how her child had become injured. She also stated thatshe never saw defendant do anything harmful to the baby. Issacsonagreed to take a polygraph examination.

Defendant also reiterated the statement that he gave at thehospital. Norris then informed defendant of the results of theautopsy. Defendant replied that neither he nor Issacson would harmTrinity. At about this time, Norris received a phone call and wasinformed that a radiologist had discovered fractures in Trinity'sright arm, right leg, and left hip. He informed defendant of thesefindings. Defendant then stated that he sometimes played roughlywith Trinity. He said that he would pick her up by the arms andbounce her on her legs. Defendant stated that he believed thiswould strengthen her limbs. He related that he would sometimesdrop Trinity from a height of a foot or two onto a bed. Defendantalso stated that on one occasion he was bathing the infant in amarble sink. He left her momentarily to get something, and she mayhave hit her head.

Still later in the interview, defendant asked what wouldhappen if Trinity had been dropped down a flight of stairs. Detective Schindler, who was also present during the interview,told defendant that it could cause serious injuries to a baby. Defendant then explained that he was carrying Trinity down a flightof stairs, lost his balance, and dropped her. According todefendant, Trinity was crying. He checked her for injuries butdiscovered none, so he assumed everything was fine. Defendantstated that this occurred before he and Issacson had gone shoppingon December 30. He added that he did not tell Issacson because hewas embarrassed and feared she would leave him.

Norris also interviewed defendant's grandfather. Thegrandfather related that defendant had been stationed in SaudiArabia while serving in the Navy. Defendant would call home daily,crying and wanting to come home. On one occasion, he was foundbanging his head on a wall and had to be sedated. The grandfatheralso described problems between him and defendant. He stated thatdefendant angered easily and often threatened him. He obtained anorder of protection against defendant following an incident wherethe grandfather required hospitalization.

Norris also acknowledged that there were no records of medicalreports indicating abuse prior to Trinity's death. He stated thatdefendant had never bothered Issacson or tried to influence hertestimony. Defendant remained in the area during theinvestigation. Norris further acknowledged that there were noindications that defendant abused alcohol or drugs. He furthertestified that, at the time of Trinity's death, Issacson wasworking full time.

The State next called Dr. Blum, who performed the autopsy onTrinity. Blum first testified that he found four bruises onTrinity's head. In his internal examination, Blum first locatedfour fresh rib fractures on the front side of Trinity's rib cage. He also found two fractures on the rear side of her rib cage thatshowed signs of healing. He estimated that these fractures werebetween 7 and 14 days old. He found a bruise on the muscleoverlying her left chest region. His internal examination ofTrinity's skull revealed bruises on the skull's interior. Somecorresponded to bruises on the outside of her skull; however, Blumalso found additional bruises. He also observed three skullfractures. He noted that Trinity's brain was swollen, its normalcurvature was flattened, and there was evidence of hemorrhaging.

Blum opined that the fractures were caused by impacts with ahard round or flattened object. He stated that such injuries weretypical of fatal or near-fatal events, rather than simple falls orroughhousing. He characterized the blunt force necessary toproduce such an injury as "severe." Ultimately, he opined thatTrinity died of brain swelling and hemorrhaging around the braincaused by an abusive head injury.

Blum also testified that Trinity's eyes were removed and sentto a specialist for analysis. Hemorrhages in the globe of the eyesand along the optical nerves were observed. Additionally, thespecialist located signs of iron staining in her eye tissue. Ironstaining occurs when red blood cells break down. Blum stated thatit takes at least two to three days for the cells to break down. The specialist was of the opinion that the hemorrhaging in the eyeswas of a nonaccidental etiology. Blum also received a report froma radiologist. The radiologist confirmed the skull fractures andfound additional fractures to Trinity's arms and legs. A fractureto the infant's right arm showed signs of healing.

Further, Blum opined that the rib fractures would be verypainful, since the ribs would move every time Trinity took abreath. He added that it was unlikely that the fresh rib fractureswere caused by CPR and impossible that the healing ones were. Blumstated that Trinity's injuries were caused by more than one impactand that the totality of her injuries was not consistent with afall down the stairs. Finally, he opined that the oldest injurieshe observed occurred three or four weeks prior to Trinity's death.

Mark Pleasant, an investigator for the Lake County State'sAttorney's office, testified next. Pleasant interviewed RobinRowe, a woman who had dated defendant for about a month beginningin January 2000. On one occasion, the two were arguing anddefendant told her to "shut up." When she refused, he showed hera handgun and stated, "[W]ill you shut up now?" Rowe stated thatdefendant had a bad temper but never struck her. He threatened to"mess up her face" and blow up her car if she left him. Rowe toldPleasant that Bilski stated that he had beaten up his ex-wife.

Pleasant also interviewed defendant's ex-wife, AprilPaszkiewicz. The couple separated in September 1999, butPaszkiewicz did not file for divorce until after Trinity's death. She stated that defendant had a bad temper and that little thingswould cause him to fly into a violent rage. Generally, whendefendant was angry at her, he would grab her by the shoulders,shake her, and push her into objects. On one occasion, he struckher, giving her a "fat lip." Paszkiewicz related that defendantstabbed a person in 1995. He told the police it was self-defense;however, he admitted to Paszkiewicz that he had lied to the policeand had stabbed the person because the person had spit on him.

Pleasant interviewed Issacson as well. Issacson told Pleasantthat defendant believed she was unhappy with their relationship andthat defendant stated that he could kill Trinity and himself sothat Issacson could have a happy life. Pleasant also reviewed aportion of Issacson's diary, where she described an incident wheredefendant was grieving over the death of his dog. Defendant toldIssacson that she would not know what it felt like until she heldher own dead baby in her arms. Issacson also told Pleasant thatdefendant was Trinity's primary caretaker.

Pleasant next described his interview with defendant. Defendant first made reference to an incident where Trinity hadfallen from a footstool. He then described an incident whereTrinity had fallen through the bottom of her cradle and gotten herhead wedged between the cradle and the floor. Defendant nextdescribed an incident where he had dropped the infant down thestairs. Defendant asked Pleasant whether he would be able toreturn home if he were charged with manslaughter. Pleasant repliedthat he did not believe so.

Later, defendant stated that the story about Trinity fallingthrough the bottom of her cradle was untrue. According todefendant, the truth was that he was holding the cradle by thehandles while spinning around. The bottom dropped out of thecradle and Trinity flew into a beam about six feet away. Defendantstated that Trinity was "out of it" for about 15 to 30 seconds.

During the interview, defendant acknowledged that he wasresponsible for Trinity's injuries. He denied ever beingfrustrated or angry with her. Defendant stated that he wanted tokill himself and that he was haunted by what he had done. He saidthat Trinity was his baby and that he loved her. Following theconclusion of Pleasant's testimony, Issacson made a victim-impactstatement. The State then rested.

Defendant presented three witnesses on his behalf. The firstwas Marietta Jankovic. Jankovic was defendant's father'sgirlfriend of 17 years and has known defendant since he was fouryears old. She visited defendant shortly before Christmas 1999. Initially, defendant would not permit Jankovic to hold Trinitybecause Jankovic had just come in from the cold and smelled likecigarette smoke. She stated that Trinity appeared happy and didnot seem to fear defendant. Trinity did not cry at all duringJankovic's visit.

Defendant next called Toni Liotta. Liotta began datingdefendant in March 2000. Liotta testified that she never sawdefendant act violently or display anger toward anyone but himself. On one evening, defendant was upset and stated that he did not wantto live. Defendant stabbed himself in the arm several times witha pen. She called 911. The police came, but defendant had alreadyleft. He returned later. Liotta told him that she thought heshould seek counseling, and defendant agreed. They obtained anappointment at a counseling center, but defendant was incarceratedbefore the appointment. Liotta also stated that she had never seendefendant abuse alcohol.

Defendant's final witness was his father, Eugene R. Bilski. Defendant's father testified that he and Deborah Baleskin weredefendant's parents. He was never married to Baleskin, althoughthey were together for seven years. Defendant's father and motherwere abusing drugs at that point in their lives. The couple livedin an attic apartment in the home of defendant's paternalgrandparents. Defendant's grandmother took care of defendant mostof the time. The grandmother was running a bar at the time, andshe kept defendant with her as she tended to the bar. Defendant'sgrandmother wanted to raise him. His grandfather, on the otherhand, showed no affection toward defendant. Defendant'sgrandfather was an alcoholic and was diagnosed with bipolardisorder.

Defendant's father was selling drugs out of the house wheredefendant resided. When defendant was about five years old, hisfather was arrested on a drug-related charge. Baleskin soldeverything in the house and left. Defendant did not see her againuntil he was 18 years old. Just before she left, Baleskin "sold"defendant to defendant's grandmother for $200. The grandmotheralso offered defendant's father $100 if he would consent to heradopting defendant. Defendant's father declined.

Until defendant was in his early teens, he believed his fatherwas actually his brother. After defendant's father completed adrug-treatment program, he asked if he could return to the house. The grandmother allowed him to do so only if he promised not totell defendant that he was his father. When defendant was about 12years old, his father told him the truth. After this revelation,defendant appeared to no longer know whom to believe or trust.

Also, at about this time, the grandmother was diagnosed withbreast cancer. She died three to four years later. During herillness, defendant cared for her, acting as a nurse. Additionally,defendant's father stated that defendant tried his best to be afather to Trinity and that defendant loved the baby.

Finally, defendant made a statement in allocution. In hisstatement he maintained that he loved Trinity and her death wasaccidental. He requested that the court either impose a sentencethat would allow him to be returned to a useful role in society atsome point or sentence him to death.

The trial court first denied defendant's request to impose thedeath penalty, noting that it was not possible in light of the pleaagreement into which defendant had entered. The court nextrejected the State's contention that defendant was eligible for anextended-term sentence because the murder was accompanied byexcessively brutal or heinous behavior. However, the court didfind that he was eligible for an extended-term sentence because theoffense was committed against a person under the age of 12.

The court then went on to determine what it believed to be anappropriate sentence. It first stated that it had considered theevidence presented at the hearing, the presentence investigationreport, the financial impact of incarceration, the arguments of theparties, defendant's statement, and the victim-impact statement. The court found the defendant was Trinity's primary caretaker. Itacknowledged that defendant's motive was unclear. The court alsofound defendant's claim of accident incredible. The courtconsidered injuries suffered by Trinity occurring prior to the dateof her death in arriving at a sentence.

The trial court stated that it had considered the mitigatingevidence presented on defendant's behalf. It noted defendant'sdysfunctional childhood. The court specifically referred to thefact that defendant's father was dealing drugs out of defendant'shome and that defendant suffered from bipolar disorder. Regardingdefendant's mental illness, however, the court observed that itcould be considered both an aggravating and mitigating factor. Thecourt noted defendant's history of threats and violence withgirlfriends, his grandfather, and while in the Navy. The courtconcluded that it was likely that defendant would be violent in thefuture and therefore a lengthy sentence was required to protectsociety. Accordingly, the court imposed a sentence of 63 years'imprisonment.

II. ANALYSIS

On appeal, defendant raises three issues. First, defendantcontends that the trial court erred by basing his sentence in partupon injuries Trinity suffered prior to the date of her death. Second, defendant complains of the trial court's decision to allowPleasant to testify regarding statements made by certainindividuals. Third, defendant asserts that the trial court failedto consider relevant mitigating evidence.

A. Prior Abuse

We find defendant's first contention, that the trial courterred in considering Trinity's prior injuries, ill taken. Initially, defendant argues that these prior acts of abuse shouldnot have been considered because he was neither charged with norconvicted of them. This is simply not the law of this state. Itis well established that evidence of other crimes is admissible atsentencing regardless of whether the defendant was charged with orconvicted of the crimes. People v. Ward, 154 Ill. 2d 272, 334(1992); People v. Thomas, 137 Ill. 2d 500, 547 (1990); People v.Spears, 221 Ill. App. 3d 430, 437 (1991).

Defendant next relies on People v. Rodriguez, 275 Ill. App. 3d274 (1995), in support of his argument. Defendant asserts that, onfacts similar to the instant case, the Rodriguez court held that atrial court could not consider prior acts of abuse against amurdered child in fixing an appropriate sentence for the murder. Rodriguez, however, does not stand for this proposition. Rodriguezheld that prior acts of abuse that neither caused nor wereinflicted contemporaneously with the victim's death could not beconsidered in determining whether the defendant was eligible for anextended-term sentence. Rodriguez, 275 Ill. App. 3d at 290. Itdid not hold that such acts were inadmissible for determining thelength of a sentence within the applicable statutory range.

Defendant further argues that insufficient evidence tiedTrinity's prior injuries to conduct by defendant. We disagree. Defendant admitted that he had caused the infant's injuries;however, he asserted that they resulted from accidents. The trialcourt rejected this assertion. This court rejected a similarargument in a slightly different context in People v. Turner, 193Ill. App. 3d 152 (1990). The question in that case was whether theevidence was sufficient to sustain a conviction of involuntarymanslaughter of a 2