People v. Wheeler
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0037
Case Date: 09/28/1998
NO. 4-97-0037
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
CHAD E. WHEELER, ) No. 96CF610
Defendant-Appellant. )
) Honorable
) Ronald C. Dozier,
) Judge Presiding.
JUSTICE GREEN delivered the opinion of the court:
After a trial by jury in the circuit court of McLean
County, defendant Chad E. Wheeler was convicted in November 1996
of one count of first degree murder (720 ILCS 5/9-1(a) (West
Supp. 1995)) and two counts of aggravated battery to a child (720
ILCS 5/12-4.3(a) (West 1996)). The victim of these offenses was
defendant's impaired three-month-old son, Levi Michael Wheeler.
The court vacated the aggravated battery conviction and sentenced
defendant to natural life in prison for the murder pursuant to
section 5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections
(Code) (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1996).
Defendant has appealed, contending (1) the proof did
not support the verdict; (2) resentencing is required because the
statute under which the sentence was imposed was invalid; (3) the
court erred in refusing the jury's request for a transcript of
defendant's testimony; (4) the prosecution's opening statement
and closing argument were improper; (5) the court abused its
discretion in allowing, over defense objection, a police detec-
tive who was a witness to remain at the counsel table; and (6)
the court denied defendant his right to due process when it
refused to explain to the jury the meaning of the term "reason-
able doubt." We affirm.
The evidence indicated (1) Levi was born to defendant
and Shannon R. Gibson in October 1995; (2) Levi weighed only 1
pound 15 ounces at birth; (3) when Levi left the hospital in
January 1996, he weighed approximately five pounds and suffered
from sleep apnea, which could cause the baby to stop breathing
while asleep; (4) as a result of the apnea, the baby's parents
were instructed to and did attach an apnea monitor to the child's
body when they went to sleep; and (5) the monitor sounded an
alarm whenever the heartbeat or breathing reached the levels of
danger.
The evidence also indicated the following: (1) shortly
after Levi went home, Levi's parents returned him to the hospital
when the apnea's monitor alarm went off; (2) hospital testing
indicated Levi was developing normally so he was sent home; (3)
at 2 a.m. on February 2, 1996, Jeffrey Emmert, an emergency
medical technician of the Bloomington fire department, was sent
to Levi's house because Levi had reportedly stopped breathing;
(4) when Emmert arrived at defendant's house, defendant was in
the living room holding Levi, whereupon Emmert checked the
child's pulse and breathing and found neither to be functioning;
and (5) Emmert then applied cardiopulmonary resuscitation (CPR)
to the child and got the child breathing and his pulse returned.
Paramedics Lorinda Ausili and Walter Rudy apparently
arrived on the scene as the child's pulse and breathing returned.
Ausili testified she noticed an old scar on Levi's abdomen and
bruises on his face. Rudy also testified to seeing those bruis-
es. Rudy testified defendant then stated "we're not child
abuser's [sic]" and that his (defendant's) pit bull dog had
caused the injuries. Apparently the paramedics inserted a
breathing tube into Levi's trachea and attached a heart monitor,
and Levi was transported to BroMenn hospital locally and then
taken by helicopter to St. Francis Medical Center in Peoria.
Levi remained at St. Francis in a chronic vegetative state for
three months. On May 3, 1996, he was transferred to a facility
in Sycamore and died there on May 26, 1996.
Dr. Jacqueline Nehama admitted Levi into St. Francis
Medical Center. Dr. Nehama testified that she noted a bruise
above Levi's right eye, an older bruise under his left eye, and
bruises around his temple and behind his ear. Levi also had
bruises on his chest and a large scar on his abdomen. Based on
Levi's condition, Dr. Nehama formed two possible diagnoses: non-
accidental trauma or a serious infection. Tests did not locate
an infection; rather, they revealed that Levi was bleeding in his
brain. Dr. Nehama concluded that Levi's injuries resulted from
being severely shaken.
Dr. Nehama consulted with defendant and Gibson to de-
velop a medical history. Defendant and Gibson told Dr. Nehama
that Levi was bruised by the family pit bull a few days earlier
when the dog ran over Levi and jumped on him. Also, Levi had
surgery for a bowel problem, which left a large scar on his abdo-
men. Levi had been running a low-grade fever for a few days
prior to being admitted to St. Francis Hospital, but appeared to
be improving.
Dr. Terry Furguile, the director of the pediatric in-
tensive care unit at St. Francis Medical Center, also treated
Levi. Dr. Furguile noted the bruises on Levi's body and found a
soft spot on top of Levi's head that was full and dense, a condi-
tion that is never normal. Testing and X rays revealed blood in
Levi's brain, fractured ribs, and fractures in his legs and arm.
One of the fractures in his leg was a spiral fracture associated
with forceful twisting. Also, an ophthalmologist found bleeding
behind Levi's right eye. Based on this evidence, Dr. Furguile
concluded that Levi had suffered multiple traumatic injuries most
likely caused by violent shaking.
Dr. Furguile stated that Levi's broken ribs were not
consistent with an improper attempt to perform CPR; rather, they
were more consistent with abuse. He acknowledged that Levi's
bruises could have been caused by thrombocytopenia, a blood con-
dition that makes infants susceptible to bruising. Levi was born
with this condition, but no longer suffered from this disorder.
Dr. Furguile also acknowledged that Levi's broken bones could
have been caused by osteogenesis imperfecta, a genetic disease
that makes bones brittle.
Dr. Furguile stated that fractures in a three-month-old
infant are extremely rare and require great force to inflict.
Thus, he concluded that Levi's injuries were not inflicted by the
family dog; rather, he was a battered child. Dr. Furguile testi-
fied that battered child syndrome was a more severe form of shak-
en baby syndrome that results in internal bleeding due to violent
shaking in conjunction with fractures and external bruising.
Dr. Paul Cruse, a neurologist at St. Francis Medical
Center, testified he spoke with defendant concerning Levi's
injuries and defendant told him his pit bull dog jumped on Levi a
few days before Levi was admitted to the hospital and this caused
Levi's injuries. Cruse reviewed the medical evidence and diag-
nosed Levi with brain injuries consistent with shaken baby syn-
drome. Based on Levi's other injuries, Dr. Cruse concluded
Levi's injuries were not consistent with a dog attack; rather,
Levi was a battered child.
Dr. John Patrick Rhode, an ophthalmologist who treated
Levi in February 1996, testified that Levi had large pockets of
bleeding in his eyes. Dr. Rhode concluded that Levi's injuries
were most likely caused by vigorous shaking.
Paul Park, a chaplain in the pediatric unit at St.
Francis Medical Center, testified he met with defendant and
Gibson the day Levi was admitted. According to the chaplain,
defendant reiterated the story regarding the pit bull jumping on
Levi and causing his external injuries. The chaplain then ex-
plained that he met with those parents the following Sunday and
they told him their previous explanation was untrue. The chap-
lain said defendant then contended (1) a few nights before the
night in question, Levi's apnea alarm sounded; (2) defendant
brought Levi into the family room and then went to the kitchen to
warm a bottle and have a cigarette; (3) when defendant returned,
Levi was on the floor and the pit bull was on top of him; and (4)
Levi did not appear injured, so defendant fed him.
Dr. Violette Hnilica, a forensic pathologist, performed
the autopsy on Levi. Dr. Hnilica noted that Levi had acute pneu-
monia and several other diseases resulting from premature birth.
Levi's brain was totally scarred with several areas of hemorrhag-
ing. His brain was also shrunken, weighing less than 40% its
normal weight, and he had scars in his eyes from retinal hemor-
rhages. Dr. Hnilica testified that shaking or hitting the head
could have caused the injuries to Levi's brain and eyes. Fur-
ther, she stated that Levi did not have thrombocytopenia or
osteogenesis imperfecta. She concluded that Levi's death was
consistent with battered child syndrome.
Dr. Larry Bush, the director of the infant apnea center
for St. Francis Medical Center, testified that based on the data
from Levi's apnea monitor, many real episodes of apnea and low
heart rate occurred while Levi was living with his parents. Dr.
Bush also stated that defendant and Gibson were informed that
they did not have to attach the monitor when Levi was awake. The
only exception was when Levi was left unattended. Further, he
stated that apnea monitors were commonly used for premature
babies.
Dr. Bush testified that on February 2, 1996, the moni-
tor was shut off at 12:37 a.m. and turned back on at 1:34 a.m.
At 2 and 2:02 a.m., the monitor's alarm sounded because Levi's
heart rate was very slow. Thereafter, the monitor was turned off
and on several times. At 2:12 a.m., the monitor sounded an alarm
because Levi stopped breathing regularly. This was followed by
multiple alarms for a very low heart rate until the monitor was
shut off at 2:25 a.m. During this time frame, Dr. Bush noted a
seven-second interval when someone administered CPR compressions
on Levi.
Detective John Katz testified he assisted in the arrest
of defendant in Hannibal, Missouri, and transporting defendant
back to McLean County. According to Katz, after he gave defen-
dant Miranda warnings, defendant (1) denied shaking Levi on the
night of his injury; (2) admitted he could have picked Levi up in
a dangerous way; (3) when asked if he had ever picked Levi in a
way likely to cause bruising, responded "anything is possible"
and that he blacked out; and (4) stated "blacking out" meant he
forgot how to perform CPR.
Dr. Panos Lymberopoulos, a physician with a specialty
in pathology, testified for the defense. Dr. Lymberopoulos tes-
tified that Levi had thrombocytopenia, which could have caused
Levi to bruise more easily than the average infant. Further,
thrombocytopenia could have caused the retinal and cranial hemor-
rhages. Dr. Lymberopoulos opined that Levi's bones were more
fragile than those of an average infant because of the abdominal
surgery's effect on his body's ability to absorb calcium.
Gibson testified (1) on the night Levi was injured, she
went to bed around midnight, at which time Levi appeared to be in
good shape; (2) defendant woke her and told her Levi was not
breathing; (3) she called 911 but did not remember seeing defend-
ant perform CPR on Levi; (4) she did not know the extent of
Levi's injuries until she arrived at BroMenn Hospital; (5) she
did not injure Levi and did not know who did; and (6) defendant
told her if he did shake Levi, he did not remember doing it.
Defendant testified to the following. He noticed red
marks on Levi's face on January 29, 1996. Gibson then informed
defendant that Levi had been picking at his eyes. On January 31,
1996, Levi began crying during the middle of the night. Defen-
dant brought Levi into the living room and went to the kitchen to
warm a bottle and smoke a cigarette. When he returned to the
living room, Levi was on the floor and the pit bull was pawing at
him. Defendant observed a scratch on Levi's cheek and leg. The
next day, Levi's jaw was swollen, his nose congested, and he had
a fever but after defendant gave Levi some Children's Tylenol, he
appeared to be getting better.
Defendant finally stated that (1) on February 2, 1996,
Levi's monitor awakened him; (2) he then checked Levi and found
he had no pulse and was not breathing; (2) he then disconnected
the monitor and started CPR; (3) Levi began to have a pulse and
defendant became confused as to whether to continue CPR, so he
awoke Gibson and she called 911; and (4) he then picked up Levi
and held him until the ambulance came. Defendant explained he
went to Hannibal, Missouri, after Levi died because a detective
had indicated to him that if Levi died, he would consider the
death a homicide. Defendant also said he did not intend to hurt
Levi while performing CPR and if he shook him, he did not remem-
ber doing it.
We conclude the evidence supported the verdict of
guilty of first degree murder. The State was required to prove
beyond a reasonable doubt that defendant intended to kill or do
great bodily harm to Levi or that the acts he committed were such
that he knew they would cause Levi's death or that they created a
strong probability of death or great bodily harm to Levi. See
720 ILCS 5/9-1(a)(1), (a)(2) (West Supp. 1995). To uphold this
verdict we must be able to conclude that after viewing all the
evidence in the light most favorable to the State a rational
trier of fact could have found all the essential elements of the
crime proved beyond a reasonable doubt. People v. Oaks, 169 Ill.
2d 409, 457-58, 662 N.E.2d 1328, 1349-50 (1996); People v.
Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985).
Here, the evidence indicated defendant and Gibson were
the only persons around Levi for any extended period near the
episode of the night of February 2, 1995. No evidence indicated
that Gibson handled Levi in such a way that would have caused the
injuries revealed by the autopsy. Only defendant was shown to
have been awake at the time of the occurrence on February 2,
1995, giving rise to Levi being sent to BroMenn Hospital. Levi
was known to be somewhat impaired but not the extent shown by the
autopsy. Defendant admitted to handling Levi with some force in
performing CPR, but the evidence of injury to Levi indicated he
had injuries far beyond those which could have resulted from
administration of CPR.
Based on the testimony of the various physicians, the
jury could have concluded beyond a reasonable doubt that the pit
bull dog did not inflict the fatal injuries. The jury could have
reached a similar conclusion that defendant was not telling the
truth as to what happened when Levi was injured. The physicians'
testimony negates defendant's explanation, and his changing his
story and the likelihood that his explanation was false are
indications of a guilty mind. The jury could have determined
beyond a reasonable doubt that defendant inflicted severe injury
upon Levi on February 2, 1996, and that the injuries inflicted
were such that a person inflicting them would realize they were
likely to cause great bodily harm.
Defendant's sentence of imprisonment for his natural
life was imposed pursuant to section 5-8-1(a)(1)(c)(ii) of the
Code (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1996)). It makes such
a sentence mandatory when the death sentence is not used and
where, as here, the victim was under 12 years of age and the
perpetrator 17 years or older. Defendant maintains the foregoing
legislation is invalid because it violates (1) the "single
subject rule" of article IV, section 8, of the Illinois Constitu-
tion of 1970 (Ill. Const. 1970, art. IV, 8); (2) the command of
article I, section 11, of the Illinois Constitution of 1970 (Ill.
Const. 1970, art. I, 11), which provides for proportionate
penalties with the objective of restoring of the offender to
useful citizenship as a consideration in sentencing; and (3) due
process (Ill. Const. 1970, art. I, 2).
We consider the "single subject rule" first.
Article IV, section 8(d), of the Illinois Constitution
of 1970 provides "[b]ills, except bills for appropriations and
for the codification, revision or rearrangement of laws, shall be
confined to one subject." Ill. Const. 1970, art. IV, 8(d). In
Johnson v. Edgar, 176 Ill. 2d 499, 680 N.E.2d 1372 (1997), the
Supreme Court of Illinois recently held that Public Act 89-428
(Pub. Act 89-428, eff. December 13, 1995 (1995 Ill. Laws 4453))
violated the single subject rule of the foregoing constitutional
provision because it concerned subjects as discordant to one
another as an environmental impact fee and sentencing in certain
criminal cases.
More recently in People v. Pitts, 295 Ill. App. 3d 182,
691 N.E.2d 1174 (1998), this court remanded for resentencing in
sentences imposed for attempt (first degree murder) (720 ILCS
5/8-4(a), 9-1(a) (West 1994)) and armed robbery (720 ILCS 5/18-
2(a) (West 1994)). These sentences were imposed under the terms
of section 3-6-3(a)(2) of the Code (730 ILCS 5/3-6-3(a)(2) (West
1994)), purportedly amended under the terms of Public Act 89-404
(Pub. Act 89-404, 40, eff. August 20, 1995 (1995 Ill. Laws 4306,
4323-27)), which contained "truth-in-sentencing" provisions and
which would require that defendant serve 85% of his sentence
rather than receive a credit against his sentence of one day for
each day of good conduct while imprisoned as previously provided
by section 3-6-3(a)(2) of the Code (730 ILCS 5/3-6-3(a)(2) (West
1994)). This court pointed out that 9 of the 10 sections of
Public Act 89-404 concerned law enforcement and were not discord-
ant but that one other section was. It concerned a mechanism by
which nonprofit hospitals or those operated by local government
may obtain liens for services performed (Pub. Act 89-404, 50,
eff. August 20, 1995 (1995 Ill. Laws 4306, 4336-37)).
In Pitts, the circuit court had pronounced that Public
Act 89-404 was applicable and that defendant would have to serve
85% of his sentence rather than be eligible for day-for-day
credit. As this court deemed Public Act 89-404 was invalid
because of the discordant subjects it covered, it remanded for
resentencing with a proper statement of possible sentence credit.
We do not agree with defendant that section 5-8-
1(a)(1)(c)(ii) of the Code is subject to the same claim of
invalidity as was the provision involved in Pitts. Section 5-8-
1(a)(1)(c)(ii) of the Code requiring imposition of a sentence of
natural life arises from Public Act 89-203, which contains eight
sections. Seven of those sections are clearly related to law en-
forcement. The instant dispute arises from the eighth section.
It concerns the Illinois Mortgage Foreclosure Law (the Foreclo-
sure Law) (735 ILCS 5/15-1101 et seq. (West 1996)).
Our reasoning that inclusion of this amendment to the
Foreclosure Law differs from the inclusion of the provision
concerning hospital liens in Pitts begins with the decision in
Rembert v. Sheahan, 62 F.3d 937 (7th Cir. 1995). There, suit had
been brought in the Federal District Court for the Northern
District of Illinois, against the sheriff of Cook County, to
enjoin the procedure he was using in evicting those in possession
of real estate upon which a mortgage had been foreclosed. The
district court enjoined the sheriff to cease enforcing orders of
possession against tenants when they were not named personally or
generically. The seventh circuit vacated the order and remanded
to the district court to determine whether the sheriff was still
enforcing orders against tenants who were named only by a class
of people and not personally. The opinion noted "[t]he Sheriff
is an integral part of the State machinery that allows purchasers
of mortgaged real estate to take possession of that real estate."
Rembert, 62 F.3d at 741 n.1.
Public Act 89-203 amended sections 15-1508 and 15-1701
of the Foreclosure Law (735 ILCS 5/15-1508, 5/15-1701 (West
1996)) in such a way that orders of possession cannot be entered
against persons who are not personally, rather than generically,
named in the original petition for foreclosure unless a supple-
mental petition so naming them has been filed. This legislation
was apparently enacted in response to Rembert, as it protected
the possessory rights to real estate of people not properly named
in the petition to foreclose.
The Johnson court indicated "a natural and logical
connection" between various pieces of legislation is required to
avoid discordance but that a broad interpretation should be given
to each. Johnson, 176 Ill. 2d at 515, 680 N.E.2d at 1379. The
discordant legislation in Pitts concerned hospital liens and the
allegedly discordant legislation concerns mortgage foreclosure.
However, giving a broad interpretation to the amendments to the
Foreclosure Law here and considering the focus this legislation
places on the sheriff and his deputies, who are law enforcement
officers, in regard to their serving of notices and writs of
possession only on properly designated parties to the foreclosure
proceeding, we conclude this portion of Public Act 89-203 has "a
natural and logical connection" to the rest of the act.
We also hold that section 5-8-1(a)(1) of the Code
violates neither the required consideration of restoring the
offender to useful citizenship nor due process. Article I,
section 11, of the Illinois Constitution of 1970 provides that
"[a]ll penalties shall be determined both according to the
seriousness of the offense and with the objective of restoring
the offender to useful citizenship." Ill. Const. 1970, art. I,
11. However, this constitutional command only justifies the
court's interference when the punishment is cruel, degrading, or
so wholly disproportionate to the offense committed as to shock
the moral sense of the community. People v. Farmer, 165 Ill. 2d
194, 210, 650 N.E.2d 1006, 1014 (1995).
In People v. Taylor, 102 Ill. 2d 201, 464 N.E.2d 1059
(1984), the Supreme Court of Illinois held article I, section 11,
of the Illinois Constitution did not invalidate the requirement
in section 5-8-1(a)(1)(c) of the Code (Ill. Rev. Stat. 1981, ch.
38, par. 1005-8-1(a)(1)(c)) providing for mandatory natural life
sentence for a second murder. That court stated article I,
section 11, "does not prevent the legislature from fixing manda-
tory minimum penalties where it has been determined that no set
of mitigating circumstances could allow a proper penalty of less
than natural life." Taylor, 102 Ill. 2d at 206, 464 N.E.2d at
1062. The legislature validly could have made the same determi-
nation in regard to a single murder of a young child as was made
in regard to a repeat murderer.
The public policy of severe penalties for the murder of
young children, to protect that category of persons, is also a
rational basis for providing for mandatory natural life sentence
for such offenders. Accordingly, the legislation meets due
process muster. See People v. Arna, 168 Ill. 2d 107, 114, 658
N.E.2d 445, 449 (1995); Farmer, 165 Ill. 2d at 207-08, 650 N.E.2d
at 1013.
No error resulted from the trial court's refusal to
grant the jury a transcript of defendant's testimony. In People
v. Davis, 105 Ill. App. 3d 549, 555, 433 N.E.2d 1376, 1381
(1982), this court indicated that when the jury requests a tran-
script of evidence, the trial court must exercise its discretion
in determining whether to obtain the transcript for the jury.
Here, the trial judge indicated at the time of hearing on the
posttrial motion that he considered the providing of a transcript
was too difficult for the deliberating jury. Furthermore, the
record here indicates that defense counsel agreed with the
court's decision to deny a transcript. In People v. Reid, 136
Ill. 2d 27, 38, 554 N.E.2d 174, 179 (1990), a party acquiescing
in the court's handling of a question asked by the jury during
deliberations was held to have forfeited any error in the matter.
By analogy, such a forfeiture occurred here.
We find no error in the State's opening statement or
closing argument. In opening statements, the prosecution refer-
red to defendant's statements to emergency personnel when they
first arrived. This was a proper statement of expected evidence.
The prosecutor described the infant's life and Levi's fight to
overcome his health difficulties. In closing arguments, the
prosecution pointed out an admission made by defendant but did
not improperly contend it was a confession. The prosecutor also
argued that at 2 a.m. on the night in question, Levi showed no
signs of dying. While Levi was impaired at that time, this
prosecutor's conduct did not constitute a mischaracterization.
In any event, defendant has forfeited the foregoing issues unless
they constitute plain error as no defense objection was made
about these issues at the trial level. People v. Pasch, 152 Ill.
2d 133, 168, 604 N.E.2d 294, 307 (1992).
The circuit court was well within its discretion in
allowing the State's lead detective to sit at the prosecutor's
table. Defendant admits this is the prevailing view (People v.
Jones, 108 Ill. App. 3d 880, 886, 439 N.E.2d 1011, 1016 (1982))
but contends we should change the rule. We deem the present
practice desirable in aiding the party involved to present its
case and do not believe the opposing party is disadvantaged
thereby.
We also refuse defendant's request to change the
existing rule in regard to defining the phrase "reasonable doubt"
to require the court to do so when, as here, requested by the
jury. We recognize that doing so may not violate a defendant's
right to due process. See Victor v. Nebraska, 511 U.S. 1, 5, 127
L. Ed. 2d 583, 590, 114 S. Ct. 1239, 1243 (1994). However, we
conclude that the decision of this court in People v. Failor, 271
Ill. App. 3d 968, 970-71, 649 N.E.2d 1342, 1343-44 (1995), in
upholding a refusal to so instruct is sound and we adhere to it.
For the reasons stated, we affirm the conviction and
sentence.
Affirmed.
GARMAN, P.J., and STEIGMANN, J., concur.
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