People v. Armstrong

First Division
November 2, 2009

No. 1-08-0901

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 06 CR 18829
)
CARL ARMSTRONG, ) The Honorable
) Michael Toomin,
Defendant-Appellant. ) Presiding Judge.

JUSTICE GARCIA delivered the opinion of the court.

Following a bench trial, the defendant was convicted of the

involuntary manslaughter of his three-month-old son and sentenced

to seven years in prison. The defendant's primary contention on

appeal centers on when his son was legally brain dead to trigger

the application of section 103-2.1 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/103-2.1 (West 2006)). Under

section 103-2.1, all in-custody interrogations not electronically

recorded are presumed inadmissable, except "when the

interrogators are unaware that a death has in fact occurred."

(Emphasis added.) 725 ILCS 5/103-2.1(e)(viii) (West 2006). The

circuit court found this exception to apply, thus permitting
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nonrecorded and electronically recorded interrogations of the

defendant to be admitted into evidence.

Because it is incontrovertible that the defendant's son was

medically diagnosed as brain dead after the nonrecorded

interrogations were concluded, we find the three interrogations

of the defendant at issue were not subject to suppression under

section 103-2.1. We also find the suppression hearing subpoenas

to medical personnel were properly quashed as the medical

diagnosis of brain death was conclusive as to when death occurred

under the facts of this case. Under the totality of the

circumstances, the defendant's statements given during the three

interrogations were voluntarily made. Finally, under the facts

of this case, it was not reversible error to refuse to conduct a

Frye hearing before admitting expert testimony regarding Shaken

Baby Syndrome. We affirm.

BACKGROUND

While in the sole custody of the defendant, Carl Armstrong,

Jr. (CJ), suffered multiple head injuries, including a fractured

skull, bilateral subdural and subarachnoid hematomas, bilateral

retinal hemorrhaging, and swelling of the brain on July 25, 2006.

At 4:15 p.m. on July 27, 2006, CJ was pronounced brain dead at

the University of Chicago Hospital.

When the incident happened, the defendant was 17 years old.

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CJ's mother, Aprileta Briggs, was the defendant's girlfriend.

Aprileta's mother, Anita Adams, considered herself the

defendant's "second mama." Cynthia Armstrong, the defendant's

mother, was married to Evan Chappell. Mr. Chappell was the

defendant's mentor and father figure. The defendant also has a

younger sister, Jasmine Chappell. Prior to this incident, the

defendant had no criminal history.

Mr. Chappell described the defendant as a loving father who

was very involved in the care of CJ. He watched him, bathed him,

fed him, and played with him. Aprileta testified the defendant

was a good father, who was always there for his child.

On the morning of July 25, 2006, Jasmine was asleep at Mr.

Chappell's house, three blocks from the home she shared with the

defendant. Shortly after 8:30 a.m., she awoke to a phone call

from the defendant, who told her CJ was not breathing. Jasmine

testified the defendant sounded scared and was crying. Jasmine

called her mother at work, got dressed, and ran over to her

house. When she arrived, she saw the defendant crying while

pacing back and forth with CJ in his arms. Shortly after, the

paramedics arrived and took CJ from the defendant.

The paramedics took CJ to the University of Chicago

Hospital. The defendant and his family followed. The doctors

diagnosed CJ with severe brain injuries.

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During the initial evening at the hospital, the defendant

was interviewed by the police. Following the defendant's arrest

for aggravated battery at approximately 7 p.m. on July 26, 2006,

the police conducted three custodial interrogations: at 9:30 p.m.

on July 26, 2006; from 2 p.m. until 5 p.m. on July 27, 2006; and

beginning just before midnight on July 27, 2006. During the

first interrogation, the defendant maintained CJ's injuries were

the result of an accidental fall from a bed. At the end of the

second interrogation, the defendant made some inculpatory

statements. During the third interrogation, the only one

recorded, the defendant made a videotaped statement in which he

admitted he shook CJ and threw him to the ground. Following CJ's

death, the defendant was charged with first degree murder.

Motion to Suppress

Defense counsel filed a pretrial motion seeking to suppress

the defendant's statements to the police, including his

videotaped confession. The defendant argued the statements given

at his first two interrogations were inadmissible under section

103-2.1 of the Code of Criminal Procedure of 1963 (Code) (725

ILCS 5/103-2.1 (West 2006)), because neither custodial

interrogation was electronically recorded. The third

interrogation was also inadmissible under subsection (d) of

section 103-2.1, according to the defendant, because it was

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inextricably linked to the second nonrecorded interrogation when

his first inculpatory statements were elicited. The defendant

also argued that all three interrogations resulted in involuntary

statements.

At the suppression hearing, the testimony regarding the

interrogations came from Special Victims Unit Detective Gregory

Auguste and his partner, Detective Louis Mahaffey. On July 25,

2006, at around 5 p.m., the two were assigned by Sergeant Duffin

to investigate CJ's injuries. Before going to the hospital, the

detectives reviewed a "Child Abuse Hotline Notification" in which

the caller, Lisa Kuntz, a social worker at the University of

Chicago Hospital, stated she "did not know if the infant will

live." Sergeant Duffin was informed that CJ was in critical

condition and that CJ could die before the detectives arrived at

the hospital. Sergeant Duffin assigned a homicide detective,

Detective David Golubiak, to the investigation as well. Homicide

detectives are not generally assigned to assist Special Victims

Unit detectives in their investigations of child abuse.

Detectives Golubiak, Auguste, and Mahaffey went to the

hospital, where they interviewed doctors and family members.

Detectives Golubiak and Auguste spoke with Dr. Jill Glick via

telephone. At the suppression hearing, Detective Auguste

described Dr. Glick as a "child abuse expert" at the hospital.

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Dr. Glick informed the detectives that CJ was in critical

condition with catastrophic injuries. According to Detective

Auguste, when he asked Dr. Glick whether CJ was going to die, she

could not say. Detective Mahaffey interviewed Ms. Kuntz, who

related that the defendant had told her that CJ's injuries were

the result of a fall from a bed.

Detectives Golubiak and Auguste each testified they

interviewed the defendant at the hospital at around 7 p.m. on

July 25, 2006. Prior to the interview, Detective Auguste knew

the defendant was 17 years old and had no prior criminal history.

Detective Auguste testified he told the defendant he wanted to

speak to him in private and the defendant agreed. The detectives

took the defendant to a private room at the hospital. Mr.

Chappell knocked on the door of the room, informed the detectives

he was the defendant's stepfather and asked to be present during

the interview. Detective Auguste refused. With only the

detectives present, the defendant recounted what had happened

during CJ's entire stay with him. The defendant described the

events consistent with an accident. The interview lasted two

hours.

Detective Auguste questioned other family members, including

the defendant's mother and sister and CJ's mother and maternal

grandmother. Detective Auguste testified that at that point, he

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could not determine whether a crime had occurred.

Around 10 p.m., all three of the detectives went to the

Armstrong home with the defendant and his mother to take

photographs and continue their investigation.

Numerous witnesses described the defendant's emotional state

on July 25, 2006, while at the hospital. Mr. Chappell described

the defendant as upset, sad, and crying. The defendant's mother

testified that when she arrived at the hospital, around 10 a.m.,

the defendant was crying and hugging Aprileta and that the

defendant was still crying and hugging Aprileta and his sister at

5 p.m. Ms. Kuntz's notes from her interview of the defendant on

that day reflect that he was crying with his shirt pulled over

his head. Neither Mr. Chappell nor Ms. Adams, Aprileta's mother,

recalled seeing the defendant eat or drink anything that day.

a. First Custodial Interrogation

Detective Auguste testified he renewed the investigation on

July 26, 2006, at 5 p.m. Detective Auguste spoke on the

telephone with Dr. Kelly Staley, a colleague of Dr. Glick at the

hospital. According to Detective Auguste, Dr. Staley could not

determine whether CJ would live or die. Dr. Staley reported that

CJ's prognosis for quality of life was not good; he could be

blind, with severe brain damage. Dr. Staley also told Detective

Auguste that doctors were conducting brain death exams on CJ.

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Detective Auguste was asked to explain what Dr. Staley's

statement regarding brain death exams meant to him. He replied,

"[It] means the subject's brain is dead or *** could be dead."

Shortly after Detective Auguste's conversation with Dr. Staley,

the detectives received a report by facsimile from the hospital,

issued by Drs. Glick and Staley, detailing CJ's injuries and the

recommendations for his treatment ("CPS consensus report").

The CPS consensus report showed that when CJ was admitted

into the hospital, he had the lowest possible score on the

Glasgow Coma Scale, a three, which is consistent with brain

death. CJ's pupil exam also suggested possible brain death. The

critical care team began its evaluation of CJ immediately upon

his arrival. The report did not state that CJ's death was

imminent or whether the doctors expected CJ to die from his

injuries.

After reviewing the report, Detectives Auguste and Mahaffey

believed that CJ's injuries were not accidental. At 7 p.m. on

July 26, 2006, the detectives went to the hospital to bring the

defendant to the police station for questioning. When the

detectives arrived at the hospital, they found the defendant at

CJ's bedside, along with other family members. Detective Auguste

recalled the defendant appeared sad and upset. The detectives

testified they told the defendant's mother they were taking him

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to the police station.

Ms. Armstrong, the defendant's mother, testified that the

detectives told her they would keep the defendant for a couple

hours. If they did not bring him back within a couple hours, she

could come to the police station to pick him up. Ms. Armstrong

testified she asked to go, but the detectives refused.

Ms. Adams, CJ's maternal grandmother, similarly recalled

that the detectives stated they would return the defendant to the

hospital after questioning him. Ms. Adams testified she told the

detectives that someone needed to go with the defendant to the

police station because he was only 17 years old, but they told

her that because the defendant was not her son, it was none of

her business. Detective Auguste denied that he told the women he

would bring the defendant back to the hospital or that either

woman asked to accompany the defendant to the police station.

At 7:30 p.m. on July 26, 2006, Detectives Auguste and

Mahaffey took the defendant from the hospital to the police

station, where he was arrested for aggravated battery to a child.

The detectives placed the defendant in interview room six, which

had video recording capability, but the video recorder was not

activated.

At 9:30 p.m., the detectives moved the defendant to a lineup

viewing room, which contained a table for the detectives to write

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notes. The lineup viewing room did not have video recording

capability. Detective Auguste advised the defendant of his

Miranda rights. The defendant indicated he understood his rights

and agreed to speak with the police.

During this first interrogation, which lasted four hours,

the defendant continually denied abusing CJ. The defendant

recounted the events in a manner consistent with an accident,

stating that CJ had fallen from a bed. Detective Auguste

informed the defendant that the doctors found his account

inconsistent with the severity and variety of CJ's injuries. The

defendant offered to take a polygraph exam. Detective Auguste

offered the defendant food and water, which he refused. The

interrogation ended with the end of Detective Auguste's shift;

the defendant was taken to the lockup.

Ms. Armstrong testified that shortly after the defendant's

arrest on July 26, 2006, she went to the police station and asked

to see her son. Ms. Armstrong claimed that after waiting for an

hour, she met with Detective Auguste, who informed her that she

could not see her son because they were "not finished with him."

Ms. Armstrong testified she asked to speak to a superior and was

taken to speak with Detective Golubiak. Ms. Armstrong testified

Detective Golubiak also informed her that the police were not

finished questioning her son. Ms. Armstrong asked Detective

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Golubiak to see her son, but she claimed he refused her request.

Detective Auguste testified he could not recall whether he

saw Ms. Armstrong on the evening of July 26, 2006, but denied

taking her to see Detective Golubiak. Detective Golubiak

testified he had no contact with Ms. Armstrong that day.

Detective Auguste testified that while the defendant was in

custody, he never asked to speak with his mother.

Numerous witnesses testified concerning the defendant's

emotional and physical condition at the hospital prior to his

arrest on July 26, 2006. They claimed he did not eat or sleep

that day and that he remained visibly upset during the entire

time at the hospital. Josephine Eatman, a Department of Children

and Family Services (DCFS) investigator assigned to CJ's case,

testified that when she saw the defendant in CJ's hospital room

on July 26, 2006, he was crying while slumped over in his chair,

with his shirt over his head.

Ms. Armstrong testified that she was told by Ms. Kuntz at 3

p.m. on July 26, 2006, that CJ had undergone a CT scan of his

brain earlier that morning and that he was brain dead.

b. Second and Third Interrogations

Detective Auguste testified that prior to arriving at the

station on July 27, 2006, he made phone calls about scheduling a

polygraph exam for the defendant, but was unable to schedule one.

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The defendant never underwent a polygraph exam. About an hour

after he arrived at work, Detective Auguste spoke with Dr. Staley

by telephone. Dr. Staley informed him that CJ was in critical

condition, that his brain was herniated and pushing down into his

spinal column. Detective Auguste asked Dr. Staley whether death

was imminent; Dr. Staley replied that she could not say whether

CJ would live or die.

After this conversation with Dr. Staley, Detective Auguste,

at about 1:45 p.m., took the defendant from the lockup, brought

him into interview room six and offered him food, water, and the

use of a bathroom. The defendant declined the detective's offer.

At 2:09 p.m., Detectives Auguste and Mahaffey took the defendant

to the lineup room. Detective Auguste again advised the

defendant of his Miranda rights. The detectives questioned the

defendant for about three hours. Detective Auguste testified he

again told the defendant that his account was inconsistent with

CJ's injuries and that the doctors had led him to believe that CJ

had been shaken. The detectives testified that shortly before

the end of the interrogation, at 4:45 p.m., the defendant made

inculpatory statements that the detectives found consistent with

CJ's injuries. The interrogation concluded around 5 p.m. with

the defendant being returned to interview room six.

At 5:32 p.m., Detective Auguste received a telephone call

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from Ms. Kuntz, who informed him that CJ had officially been

pronounced dead at 4:15 p.m. that day. At that time, neither

Detective Auguste nor Detective Mahaffey informed the defendant

his son was dead. Detective Auguste paged Dr. Staley and spoke

with her at 6:45 p.m. Dr. Staley confirmed Ms. Kuntz's statement

that CJ had been declared brain dead.

After CJ's death, Detective Golubiak was again assigned to

the investigation. Although Detective Golubiak had been assigned

to assist the investigation on July 25, 2006, no homicide

detective assisted the investigation on the following days until

CJ was pronounced dead. Detectives Auguste and Mahaffey

conferred with Detective Golubiak and Sergeant Duffin on the

direction of the case. The detectives then went to the hospital

and told the defendant's family members they needed to come to

the police station to speak with an assistant State's Attorney.

Ms. Armstrong testified that she returned to the police

station at 5 p.m., shortly after CJ's death and spoke with

Detective Golubiak, who again told her she could not see her son.

Ms. Armstrong claimed Detective Golubiak told her to come back to

the station at 10 p.m. to speak with the assistant State's

Attorney. Detective Golubiak denied this conversation occurred.

The detectives' final interrogation of the defendant began

shortly before midnight on July 27, 2006. The detectives

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questioned the defendant in interview room six, with the room's

video recorder activated. Detective Auguste began the

interrogation by informing the defendant that his son was dead.

The defendant put his hands over his ears and cried. Detective

Auguste gave the defendant time before proceeding with his

questioning. Detective Auguste testified the defendant's

subsequent confession was "substantially the same" as the

inculpatory statements the defendant made during his second

interrogation. Detective Auguste testified the defendant never

asked to make a phone call, nor did he request an attorney.

c. Special Order

At the suppression hearing, evidence was presented that at

the time of the defendant's interrogations, a special order of

the police department, effective July 18, 2005, the effective

date of section 103-2.1, mandated the electronic recording of

interrogations in aggravated battery cases where death is

probable.

A general order, issued a week after the special order, also

with an effective date of July 18, 2005, did not contain the

requirement of videotaping in aggravated battery cases. The

general order indicated it took precedence over any other

department directive in the event the directives conflicted.

d. Order Denying Motion

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In a written order, the trial court denied the defendant's

motion to suppress, concluding that the defendant's statements

were not inadmissible under section 103-2.1 of the Code because

the detectives had not been notified that CJ was declared brain

dead until after the second nonrecorded interrogation on July 27,

2006. The court found the evidence did not support a conclusion

that CJ's doctors told the detectives that CJ's death was

probable before the second interrogation.

The trial court found the general order limiting electronic

recording to homicide suspects took precedence over the special

order extending those protections to individuals charged with

aggravated battery where death is probable. However, the trial

court acknowledged that even if the special order controlled, the

evidence did not support the defendant's contention that CJ's

death was probable before he was officially declared brain dead.

The trial court determined the defendant's statements to the

police were voluntary. Based on its review of the video

recording, the court found the detectives' questioning of the

defendant was conducted in calm, conversational tones with the

majority of the detectives' questioning being open-ended, thus

allowing the defendant to tell his story. The court pointed out

that the defendant was a 17-year-old high school graduate, one

month shy of turning 18, and scheduled to attend college. The

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court concluded there were no issues regarding the defendant's

mental capacity or intelligence, though the court found the

defendant naive with no prior experience with law enforcement.

Regarding the defendant's physical condition at the time of his

confession, the court concluded there was no evidence that he was

sleep deprived or that he was denied access to food or water

because the defendant "refused all offers of food." The court

found no suggestion of police coercion premised on the defendant

being placed in different locations in the police station or on

the timing of his interrogations or on the detectives'

withholding news of CJ's death until the videotaped interrogation

began. The trial court found the detectives' reasoning

explaining their conduct credible on all of these issues. The

court gave credence to the detectives' testimony that they did

not refuse Ms. Armstrong's requests to see her son over Ms.

Armstrong's claims that the detectives refused her requests.

Based on the totality of the evidence, the court found the

defendant's statements were given freely and voluntarily.

Subpoenas Issued to Hospital Personnel

Defense counsel issued subpoenas to Dr. Glick, Dr. Staley,

and Ms. Kuntz to appear at the suppression hearing. The

prospective witnesses, through hospital counsel, filed a motion

to quash the subpoenas. In his response, the defendant claimed

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that Drs. Glick and Staley had independent knowledge of what

Detective Auguste was told regarding CJ's condition and the

likelihood that he would survive his injuries. The defendant

argued this evidence was relevant to whether the detectives were

required to record all three of his interrogations. The

defendant further argued that the witnesses' knowledge of his

physical and mental condition while he was at the hospital was

relevant to whether his statements to the police were

involuntary.

The court granted the witnesses' motion to quash the

subpoenas. The court concluded the testimony of the detectives,

along with the materials they had received from the hospital, was

sufficient to answer whether they were required to record all

three of the defendant's interrogations under section 103-2.1.

The court held the knowledge of the hospital personnel as to the

defendant's physical and mental condition while at the hospital

was irrelevant to the alleged involuntariness of his statements

given at the police station.

At the suppression hearing, defense counsel asked the court

to reconsider its ruling granting the witnesses' motion to quash

the subpoenas. Defense counsel argued that because brain death

tests were conducted on CJ on the morning of July 26, 2006, and

again on July 27, 2006, the doctors' testimony could shed light

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on whether, and to what extent, the results of those tests were

communicated to the detectives. The court denied the defendant's

request.

During the final day of the suppression hearing, defense

counsel tendered offers of proof of the testimony of the three

prospective witnesses. Based on Ms. Kuntz's notes, an offer of

proof was made that she would testify that on July 25, 2006, the

defendant was distraught. She would also testify that as of 4

p.m. on July 26, 2006, she knew CJ was brain dead and that

hospital staff was merely conducting confirmatory tests before

making an official pronouncement. Based on CJ's medical records,

four offers of proof were made: (1) Dr. Glick would testify that

she spoke with the detectives by telephone on July 25, 2006, at

4:45 p.m. and informed them of CJ's "grim prognosis"; (2) Dr.

Staley would testify that at 5 p.m. on July 26, 2006, she relayed

all relevant information about CJ's condition to the detectives;

(3) both doctors would testify that on the morning of July 27,

2006, CJ was brain dead and that repeat brain death exams were

positive for brain death; and (4) Dr. Staley would testify that

she updated the detectives on CJ's condition at 1 p.m. on July

27, 2006. According to these offers of proof, Drs. Glick and

Staley were both aware that CJ was likely brain dead as of July

26, 2006.

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Motion for Frye Hearing

On July 6, 2007, defense counsel moved for a Frye hearing to

determine the admissibility of expert testimony regarding the

diagnosis of Shaken Baby Syndrome. The trial court denied the

motion, concluding that a Frye hearing was not required because

the diagnosis is generally accepted in the medical and legal

communities and Illinois courts have applied it universally. The

court concluded that any controversy surrounding the syndrome

goes to the weight of the evidence, to be tested during cross-

examination and by any contrary evidence at trial.

On November 8, 2007, defense counsel filed a motion for

reconsideration, citing People v. McKown, 226 Ill. 2d 245, 875

N.E.2d 1029 (2007). As support for his motion, the defendant

also attached numerous articles from medical journals questioning

the validity of Shaken Baby Syndrome diagnosis, as well as

decisions from courts of other jurisdictions rejecting the

admission of the diagnosis. The trial court found the attached

material inapposite because the material questioned the validity

of Shaken Baby Syndrome in explaining subdural hematomas and

retinal bleeding in the absence of cranial trauma. In the

present case, the critical issue centered on whether CJ's skull

fracture was consistent with an accident or physical abuse. The

trial court denied the defendant's motion for reconsideration.

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Trial

On January 10, 2008, the defendant's bench trial commenced.

The Cook County chief medical examiner, Dr. Nancy Jones, Dr.

Glick, and Rita Harper, a Chicago police officer, testified for

the State. Dr. Shaku Teas, a forensic pathologist, Jasmine

Chappell, and Evan Chappell testified for the defense. The

parties stipulated to the testimony of Anita Adams, Cynthia

Armstrong, Josephine Eatman, Aprileta Briggs, Lisa Kuntz, and

Detective Auguste.

Dr. Glick testified as an expert in pediatric medicine. She

testified she examined CJ at the hospital and reviewed his

medical records, concluding that CJ had a traumatic brain injury

manifested by intracranial bleeds, subdural and subarachnoid

hematoma, skull fracture, and cerebral edema. She included her

findings in the "CPS Consensus Report," including her diagnosis

of Shaken Baby Syndrome. Dr. Glick testified that CJ's subdural

and subarachnoid bleeds were characteristic of Shaken Baby

Syndrome. However, on cross-examination, she acknowledged that

such bleeds could also result from a short fall. Dr. Glick

acknowledged that the medical literature contains criticisms of

the diagnosis of Shaken Baby Syndrome based on the lack of

scientifically collected data to support the diagnosis. Dr.

Glick testified she disagreed with the authors' conclusions. Dr.

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Glick testified CJ's injuries were consistent with the

defendant's statement that he shook the baby, threw the baby to

the ground, picked the baby up, shook him again and again threw

him to the ground.

Dr. Glick testified she collaborates and assists police in

child abuse cases by providing them with information. She stated

she had multiple discussions with Detectives Auguste and Mahaffey

regarding CJ's case; however, she never informed them that CJ

would die from his injuries.

Dr. Jones testified as an expert in the field of forensic

pathology as to the cause and manner of CJ's death. Dr. Jones

performed the autopsy on CJ's body on July 28, 2006. She

concluded CJ died as a result of craniocerebral injuries due to

blunt head trauma. She opined CJ's death was the result of child

abuse and classified the manner of death as a homicide. Dr.

Jones testified CJ's injuries were consistent with being shaken

and thrown, and were not consistent with a short fall.

Officer Harper testified that around 9:15 a.m. on July 25,

2006, she went to the Armstrong residence, where the defendant,

who appeared "calm," told her CJ had fallen to the floor and

struck his head on a telephone.

The parties stipulated that Detective Auguste would testify

consistent with his testimony at the suppression hearing and that

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Lisa Kuntz would testify consistent with her notes. Ms. Kuntz's

notes recounted her interviews with the defendant and his family,

the medical reports relating to CJ, and her impressions of the

defendant and his family while they were at the hospital. Ms.

Kuntz noted that CJ's mother, Aprileta, described the defendant

as a good father who had never been abusive to their son.

Aprileta told Ms. Kuntz she did not believe the defendant could

have hurt CJ. Ms. Kuntz's notes also recount her interview with

the defendant, in which he told her that he had been sleeping in

the same bed as CJ, but awoke to find him motionless on the floor

beside the bed. The defendant told Ms. Kuntz he administered CPR

and called the paramedics.

The parties also stipulated that Anita Adams, Cynthia

Armstrong, and Josephine Eatman would testify consistent with

their testimony at the suppression hearing.

In the defendant's case in chief, Jasmine Chappell, the

defendant's sister, and her father, Evan Chappell, testified

concerning the defendant's loving care of CJ prior to the

incident and his distress over CJ's injuries.

Dr. Shaku Teas testified as the defense's expert in forensic

pathology concerning the cause and manner of CJ's death. Dr.

Teas did not examine CJ's body; instead, she based her opinion on

her review of Dr. Jones' autopsy report. Dr. Teas opined that CJ

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died of cranial cerebral injuries due to blunt trauma and that

his injuries were consistent with a fall. Dr. Teas explained

that the diagnosis of Shaken Baby Syndrome is the "most

controversial diagnosis" in the medical community. Dr. Teas

testified that CJ's retinal hemorrhages were not caused by force,

but were the result of intracranial pressure. Dr. Teas testified

there was no medical evidence that CJ's injuries occurred as a

result of shaking, specifically because one of the signs of a

shaking injury is injury to the neck, which CJ did not have.

Another sign of shaking would be fingertip bruises or marks on

CJ's chest, which were not present.

The court found the defendant guilty of the lesser included

offense of involuntary manslaughter. Although the court found

the State made a strong case for finding the defendant acted with

a conscious awareness of a strong probability of death or great

bodily harm, the trial court concluded the defendant had no

conscious objective to kill CJ and, therefore, found the

defendant's conduct reckless. Consistent with a finding of

recklessness, the court noted the absence of any prior abuse, the

defendant's reputation as a caring and loving parent, and his

reaction to CJ's injuries.

Weighing on the side of a guilty verdict, the court found

it significant that the defendant made a number of different

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statements regarding the cause of CJ's injuries. The court did

not find Dr. Teas' conclusions regarding CJ's manner of death

credible because insufficient evidence existed to support a

conclusion that CJ's injuries resulted from a fall from a bed.

The defendant timely appeals.

ANALYSIS

The Interrogations

The defendant's first contention is that the statements he

gave during each of his interrogations following his arrest for

aggravated battery are presumptively inadmissible under section

103-2.1. Section 103-2.1(b) provides that any statement of an

accused made during a custodial interrogation at a police station

"shall be presumed to be inadmissible as evidence against the

accused in any criminal proceeding brought under Section 9-1 ***

of the Criminal Code of 1961 *** unless: (1) an electronic

recording is made of the custodial interrogation; and (2) the

recording is substantially accurate and not intentionally

altered." 725 ILCS 5/103-2.1(b) (West 2006). While the

defendant was initially arrested for aggravated battery to a

child, his bench trial proceeded with charges under section 9-1

of the Criminal Code.

The defendant contends that because his first and second

interrogations were not electronically recorded, but were

24
No. 1-08-0901

required to be recorded under section 103-2.1, "then any

statements made by the defendant during or following that non-

recorded custodial interrogation, even if otherwise in compliance

with this Section, are presumed inadmissible." (Emphasis added.)

725 ILCS 5/103-2.1(d) (West 2006). According to the defendant,

the clear aim of subsection (d) is to eliminate a test run of the

defendant's interrogation (not electronically recorded) before a

properly recorded interrogation (essentially the same as the

preceding interrogation) is conducted. The defendant points to

Detective Auguste's testimony that the defendant's confession

during the third interrogation was "substantially the same" as

the inculpatory statements the defendant made during his second

interrogation. Before an electronically recorded interrogation

may be deemed presumptively inadmissible, however, there must be

a judicial finding, supported by a preponderance of the evidence,

that the preceding interrogation was conducted in violation of

section 103-2.1. 725 ILCS 5/103-2.1(d) (West 2006).

Section 103-2.1 is subject to numerous exceptions set out in

subsection (e) that preclude a finding of a violation. Only one

of the listed exceptions is pertinent here: "Nothing in this

Section precludes the admission *** (viii) of a statement given

at a time when the interrogators are unaware that a death has in

fact occurred." 725 ILCS 5/103-2.1(e)(viii) (West 2006). The

25
No. 1-08-0901

trial court found this exception to apply, a ruling we determine

presents a question of law, subject to de novo review. See

People v. Hansen, 327 Ill. App. 3d 1012, 1016, 765 N.E.2d 1033

(2002) (de novo review applies where issue raises a question of

statutory interpretation or other question of law).

The defendant's argument that exception (viii) does not

apply in this case is grounded on his claim that "death" equates

with a determination that CJ was brain dead. He argues, "It is

well-settled that a person who is brain dead is legally dead,"

citing People v. Lara, 289 Ill. App. 3d 675, 681, 683 N.E.2d 480

(1997), and In re Haymer, 115 Ill. App. 3d 349, 355, 450 N.E.2d

940 (1983). The defendant asserts, "[T]he legislature

undoubtedly intended 'death' to include brain dead."

He contends that the interrogators' awareness that CJ was

brain dead turns on the information the detectives received from

the hospital personnel beginning with CJ's hospitalization.

During the suppression hearing on the admissibility of his

statements under section 103-2.1, the defendant made offers of

proof claiming to show that CJ was brain dead on the morning of

July 27, 2006, and was likely brain dead on July 26, 2006.

According to the defendant, the hospital personnel were

subpoenaed to testify regarding CJ's brain activity during this

period, findings of which he contends were conveyed to the

26
No. 1-08-0901

investigating detectives prior the defendant's first and second

interrogations. If the detectives were in fact aware that CJ was

brain dead prior to the first interrogation, then the statements

from the first and second interrogations would be presumptively

inadmissible under section 103-2.1(b).

The defendant argues that because the first two

interrogations were not electronically recorded, but should have

been, the defendant's statements from the third interrogation,

which was electronically recorded, would also be deemed

presumptively inadmissible under subsection (d). According to

the defendant, under the circumstances present in this case,

excusing the police's failure to record all of the defendant's

interrogations would violate the spirit and purpose of the

statute. Based on this argument, it follows that the trial court

erred in quashing the subpoenas to the hospital personnel to

testify at the suppression hearing.

The trial court ruled that exception (viii) applied because

the detectives were not made aware of CJ's death until after the

second interrogation was completed. In the language of the

subsection, during the second interrogation, the detectives were

"unaware that a death [had] in fact occurred." 725 ILCS 5/103-

2.1(e)(viii) (West 2006). According to the trial court's

finding, the investigators were unaware that CJ was dead until

27
No. 1-08-0901

Detective Auguste received a telephone call from Ms. Kuntz at

5:32 p.m. on July 27, 2006, a half hour after the second

interrogation concluded. Based on this finding, the State met

its burden of proving, by a preponderance of the evidence, that

exception (viii) applied. 725 ILCS 5/103-2.1(e)(viii) (West

2006).

The plain and clear language of exception (viii) requires

two factual determinations before the exception is triggered: (1)

a death has occurred; and (2) the interrogators are aware of the

death. The defendant focuses primarily on the latter factual

determination to support his claim that the exception does not

apply. We conclude that the former must first be determined

before context can be given to the latter.

The defendant argues that beginning with CJ's bottom score

on the Glasgow Coma Scale upon admission to the hospital, and the

brain death exams repeatedly conducted on CJ, including one at 5

p.m. on July 26, 2006, CJ was "legally dead" before the first,

nonrecorded custodial interrogation of the defendant. Implicit

in this argument is that the trial court's finding of when death

came to CJ is not controlled by the medical declaration of brain

death. We disagree.

"Although the courts have refused to

establish criteria for determining brain

28
No. 1-08-0901

death because the advent of new research and

technologies continues to change the tests

used for determining cessation of brain

function, they have required that a diagnosis

of brain death be made in accordance with the

'usual and customary standards of medical

practice.' [Citation.] Therefore, expert

medical opinion is necessary to a

determination of brain death. [Citation.]"

Lara, 289 Ill. App. 3d at 681, quoting Janus

v. Tarasewicz, 135 Ill. App. 3d 936, 941, 482

N.E.2d 418 (1985).

Brain death is a medical finding based on the prevailing

standards of medical practice. We look to expert medical opinion

for that determination. We reject the defendant's contention

that whether CJ was brain dead at any point prior to 4:15 p.m. on

July 27, 2006, is a legal determination that may be made

irrespective of the medical declaration that brain death occurred

at a specified time. That courts look to the medical declaration

of death is in line with the holding in Haymer. "In this regard,

we find it significant that the legislature's definition of death

under the Uniform Anatomical Gift Act conforms to the consensus

of the medical community that total brain death is the death of

29
No. 1-08-0901

the person, and that adoption of that definition of death in the

present case will conform the legal definition of death in

Illinois to current medical standards." Haymer, 115 Ill. App. 3d

at 354. The legal finding of death is inextricably linked to the

medical diagnosis of death. In Haymer, we held that when the

heart stopped functioning did not mark when death occurred.

Rather, death occurred when "irreversible cessation of total

brain function, according to usual and customary standards of

medical practice," occurred. Haymer, 115 Ill. App. 3d at 356-57.

In other words, we determined that the person was legally dead as

of the date he was diagnosed as brain dead. Haymer, 115 Ill.

App. 3d at 356-57.

The defendant's contention here challenging the reliance on

the medical determination of when CJ was brain dead is not unlike

the defendant's contention in Lara that death was caused not by

the blunt force he applied to the decedent's head, but to the

"premature termination of life support measures at the hospital."

Lara, 289 Ill. App. 3d at 681. We rejected the contention in

Lara that death only occurred with the termination of life

support measures. Rather, we held death occurred when the

medical "diagnosis of death was made according to usual and

customary standards of medical practice." Lara, 289 Ill. App. 3d

at 681. So too here. Death did not come to CJ until he was

30
No. 1-08-0901

medically declared dead at 4:15 p.m. on July 27, 2006, after all

confirmatory brain death exams required by usual and customary

standards of medical practice were conducted. We note, no

contrary expert medical opinion regarding the time of brain death

was presented at trial. See Lara, 289 Ill. App. 3d at 681

("expert medical opinion is necessary to a determination of brain

death").

Because it is uncontested that the interrogating detectives

were not informed of the medical diagnosis of brain death until

after the second interrogation had concluded, we can reach no

other legal conclusion than exception (viii) of section 103-

2.1(e) applies. Under the facts of this case, it follows that

only the third interrogation was required to be electronically

recorded pursuant to section 103-2.1. Because section 103-2.1

was not violated in this case, no error occurred in admitting the

defendant's statements from all three interrogations.

Subpoenas to Hospital Personnel

Our determination that exception (viii) of section 103-

2.1(e) applies because the detectives were not aware of CJ's

death until they were informed that CJ died at 4:15 p.m. on July

27, 2006, grounds our conclusion that no error occurred in the

quashing of the defendant's subpoenas to the hospital personnel.

The offers of proof do not challenge the medical determination as

31
No. 1-08-0901

to the time of CJ's death. We also note that Dr. Glick, one of

the hospital personnel subpoenaed for the suppress hearing,

testified at trial that she came to no conclusion as to the brain

death of CJ at odds with the official pronouncement of death.

Obviously, having come to no differing opinion, Dr. Glick could

not have passed information to the detectives suggesting that CJ

was brain dead before the medical diagnosis was made.

We note that even if the defendant is correct that his

statements given at the three interrogations are presumptively

inadmissible under section 103-2.1, this entitles him to no

relief unless the trial court erred in its ruling that his

statements were voluntarily given. "The presumption of

inadmissibility of a statement *** may be overcome by a

preponderance of the evidence that the statement was voluntarily

given and is reliable ***." 725 ILCS 5/103-2.1(f) (West 2006).

Subsection (f) is a fail-safe provision providing for the

admission of statements elicited in violation of subsection (b)

where the error is rendered harmless by a showing, based on the

preponderance of the evidence, that the presumptively

inadmissible statements were given voluntarily and are reliable.

We turn to the defendant's voluntariness issue.

Voluntariness of Statements

In determining whether a defendant's statements are

32
No. 1-08-0901

voluntarily made, a court must look to the totality of the

circumstances surrounding the making of the statements. People

v. Brown, 169 Ill. 2d 132, 144, 661 N.E.2d 287 (1996). The court

considers the defendant's age, education, background, experience,

mental capacity, and intelligence, as well as the defendant's

physical and emotional condition at the time of questioning, the

duration of the questioning, and whether the defendant was

subjected to physical or mental abuse by the police. People v.

Mitchell, 366 Ill. App. 3d 1044, 1049, 853 N.E.2d 900 (2006). A

lower court's ultimate ruling that the defendant's statement was

voluntary is subject to de novo review. People v. Sanchez, 362

Ill. App. 3d 1093, 841 N.E.2d 478 (2005). Where the defendant

challenges the admissibility of his confession through a motion

to suppress, the State bears the burden of proving by a

preponderance of the evidence that the confession was voluntary.

People v. Braggs, 209 Ill. 2d 492, 505, 810 N.E.2d 472 (2003).

The defendant contends several factors weigh heavily against

the trial court's finding that his inculpatory statements were

voluntarily made. Relying on People v. Richardson, 376 Ill. App.

3d 537, 542, 875 N.E.2d 1202 (2007), the defendant argues that

because he was only 17 years old at the time and, therefore, a

33
No. 1-08-0901

purported "minor,"1 careful scrutiny of the circumstances of his

interrogation is required to ensure his statements were not

coerced. The defendant further points to his lack of experience

with the criminal justice system, to the absence of an adult

present during his questioning, to his lack of a criminal

history, and to the absence of any gang affiliation, as factors

weighing against a finding that his statements were voluntarily

made to the police. The defendant also argues his physical,

mental, and emotional conditions at the time of the

interrogations weigh against the admissibility of his statements.

1
The defendant offers no authority for his suggestion that

at 17 years old, he was subject to additional protection as a

juvenile. The Juvenile Court Act of 1987 in effect at the time

of the defendant's arrest provides that "no minor who was under

17 years of age at the time of the alleged offense may be

prosecuted under the criminal laws of this State." (Emphasis

added.) 705 ILCS 405/5-120 (West 2006). Moreover, certain

classes of defendants are excluded under the Act, regardless of

whether they are under the age of 17, based on the crime they are

charged with committing, including first degree murder. 705 ILCS

405/5-125, 5-130, 5-805, 5-810 (West 2006).

34
No. 1-08-0901

The defendant contends he had not eaten, was sleep deprived, and

was distraught over his son's injuries at the time of his

interrogations.

In finding the defendant's statements were voluntary, the

trial court specifically addressed each of the factors the

defendant now argues weigh against the admissibility of his

statements, finding the evidence did not support the defendant's

contentions. We are unpersuaded that the trial court's findings

of fact are against the manifest weight of the evidence. In re

G.O., 191 Ill. 2d 37, 50, 727 N.E.2d 1003 (2000). Based on our

de novo review of the ultimate decision by the trial court that

the statements were voluntary, on the record before us we reach

the same conclusion. G.O., 191 Ill. 2d at 50.

The trial court properly concluded that the State proved, by

a preponderance of the evidence, that the defendant's statements

to the detectives were voluntarily made and reliable. Therefore,

the trial court properly denied the defendant's motion to

suppress.

Frye Hearing

Finally, the defendant argues that under the guidance of

People v. McKown, 226 Ill. 2d 245, 875 N.E.2d 1029 (2007), the

trial court erred in taking judicial notice that the "highly

controversial" diagnosis of Shaken Baby Syndrome is generally

35
No. 1-08-0901

accepted without first holding a hearing under Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923). In his motion for a Frye

hearing, the defendant requested a ruling as to the admissibility

of the expert testimony under the particular facts of this case,

among other requested rulings. Based on the broad requests for

rulings, the trial court concluded that "the determinations

sought by the Defense essentially go well beyond what Frye

contemplates." As the trial court noted, "Frye determines

general acceptance of a given methodology or principle, not its

application to the case at hand."

The "general acceptance" test set forth in Frye provides

that scientific evidence is admissible at trial only if the

methodology or scientific principle upon which the opinion is

based is " ' "sufficiently established to have gained general

acceptance in the particular field in which it belongs." ' "

McKown, 226 Ill. 2d at 254, quoting In re Commitment of Simons,

213 Ill. 2d 523, 530, 821 N.E.2d 1184 (2004), quoting Frye, 293

F. at 1014. The trial court may determine whether the scientific

principle or methodology meets the general acceptance test in

either of two ways: (1) based on the results of a Frye hearing;

or (2) by taking judicial notice of unequivocal and undisputed

prior judicial decisions or technical writings on the subject.

McKown, 226 Ill. 2d at 254.

36
No. 1-08-0901

Here, the trial court took judicial notice that Shaken Baby

Syndrome is generally accepted in the relevant scientific field

based on prior judicial decisions and, therefore, admissible as

scientific evidence at trial. See, e.g., People v. Rader, 272

Ill. App. 3d 796, 651 N.E.2d 258 (1995); State v. McClory, 207

Conn. 233, 541 A.2d 96 (1988) (listing six other states that have

found Shaken Baby Syndrome generally accepted medical theory);

People v. Swart, 369 Ill. App. 3d 614, 631, 860 N.E.2d 1142

(2006) (Shaken Baby Syndrome theory challenged as " 'highly

controversial' and 'hotly contested,' " but under Frye, "general

acceptance does not require that the methodology be accepted by

unanimity, consensus, or even a majority of experts"). The

defendant argues it was improper for the court to do so based on

our supreme court's decision in McKown.

In McKown, the supreme court held that it was an error to

take judicial notice of the general acceptance of the Horizontal

Gaze Nystagmus (HGN) test as an indicator of alcohol impairment.

McKown, 226 Ill. 2d at 275. Based on the varying opinions

expressed in articles on the subject, the differing judicial

opinions, and the fact that a Frye hearing was never held on the

matter, the supreme court held that a Frye hearing was required

to determine whether the HGN test had been generally accepted as

a reliable indicator of alcohol impairment. McKown, 226 Ill. 2d

37
No. 1-08-0901

at 275.

The defendant argues that similar to the HGN test addressed

by McKown, Shaken Baby Syndrome, as a scientific theory, is

novel, despite the fact that it has been introduced in courts for

many years, because there is no reported decision in Illinois

finding general acceptance as a result of a Frye hearing. The

defendant contends the technical writings and other courts'

decisions on the diagnosis, particularly of late, do not present

an unequivocal viewpoint on the issue such that judicial notice

is proper. In his motion for reconsideration, the defendant

cited several articles by medical scholars that challenge the

validity of Shaken Baby Syndrome. At trial, Dr. Teas testified

the syndrome is the "most controversial diagnosis" in the medial

community.

The State argues the trial court properly permitted expert

witness Dr. Glick to testify concerning Shaken Baby Syndrome

without holding a Frye hearing. The State argues Shaken Baby

Syndrome is not a novel scientific principle as it has gained

acceptance in both the medical and legal communities. The State

contends a review of recent decisions from reviewing courts

across the country shows that Shaken Baby Syndrome has been

properly established under the Frye standard. The American

Academy of Pediatrics and the United States Centers for Disease

38
No. 1-08-0901

Control recognize that shaking a baby can result in death or

permanent neurological disability.

The State also argues that even if it was error to admit the

Shaken Baby Syndrome testimony without conducting a Frye hearing,

such an error was harmless as the cause of death was blunt force

trauma to CJ's skull; Shaken Baby Syndrome was offered to explain

the other injuries CJ sustained. Dr. Jones performed CJ's

autopsy and opined, without reference to Shaken Baby Syndrome,

that CJ's brain injuries resulted from blunt force impact

constituting child abuse. In his videotaped statement, the

defendant admitted he threw CJ to the floor twice. Based on this

evidence, the State contends that any error in the admission of

Dr. Glick's testimony concerning Shaken Baby Syndrome was at most

harmless.

The defendant maintains the admission of the evidence was

not harmless because the State's main witness, Dr. Glick, based

her entire diagnosis of CJ on Shaken Baby Syndrome. In contrast,

Dr. Teas, the defendant's expert, testified that CJ's injuries

were consistent with a short fall as the defendant originally

stated had happened. Based on the conflicting theories offered

by the experts, the defendant argues that without Dr. Glick's

testimony regarding Shaken Baby Syndrome, the defense's primary

theory that CJ's injuries were consistent with a short fall from

39
No. 1-08-0901

a bed would have been "bolstered significantly." We disagree.

This argument by the defendant is undermined by the trial

court's ruling on the defendant's motion to reconsider regarding

the Frye hearing request. The trial court noted that CJ's skull

fracture distinguished this case from the authorities cited by

the defendant because there was no direct evidence that CJ's

death was the result of Shaken Baby Syndrome, rather than blunt

head trauma. We also note that unlike the situation in McKown,

the defendant cites no conflicting Illinois judicial decision on

the admissibility of Shaken Baby Syndrome. McKown, 226 Ill. 2d

at 257-58 ("our own appellate court has issued divergent opinions

on the topic [of HGN]").

To the extent questions remain as to acceptance in the

medical and legal communities of the scientific validity of

Shaken Baby Syndrome as a diagnosis, we conclude this is not the

case to provide an answer to whether the trial court's decision

to take judicial notice of the diagnosis constitutes reversible

error. See People v. Swart, 369 Ill. App. 3d 614, 632, 860

N.E.2d 1142 (2006) ("defendant has waived any challenge under

Frye to the scientific evidence" concerning shaken baby

syndrome). Based on our review of the record, the guilty verdict

did not turn on the admission of the evidence relating to the

syndrome. "When a defendant challenges the admission of

40
No. 1-08-0901

evidence, we may hold the admission to be harmless '[w]hen the

competent evidence in the record establishes the defendant's

guilt beyond a reasonable doubt and it can be concluded that

retrial without the erroneous admission of the challenged

evidence would produce no different result.' " McKown, 226 Ill.

2d at 276, quoting People v. Arman, 131 Ill. 2d 115, 124, 545

N.E.2d 658 (1989).

We find the evidence of CJ's cause of death of blunt force

trauma caused by the defendant's throwing CJ to the floor to be

overwhelming. In his videotaped statement, the defendant

confessed to throwing CJ to the floor twice. Dr. Jones testified

the cause of CJ's death was cranial cerebral injury due to blunt

head trauma from child abuse; she did not make a finding or offer

testimony regarding Shaken Baby Syndrome. While Dr. Glick

testified that certain injuries to CJ were consistent with Shaken

Baby Syndrome, she testified that CJ's skull fracture and

cerebral edema were consistent with CJ being thrown to the floor

twice, much as the defendant described doing in his videotaped

confession. Dr. Teas, the defendant's expert, also testified

that CJ died of cranial cerebral injuries caused by blunt trauma,

while contending that the injuries were consistent with a fall.

The physical evidence showed CJ suffered a skull fracture and it

was uncontested that the defendant was alone with CJ at the time

41
No. 1-08-0901

he suffered his injuries. It was for the trier of fact to

determine which of the differing opinions offered to explain CJ's

blunt trauma was credible. It was well within the role of the

trial court, as trier of fact, to reject Dr. Teas's medical

opinion as unsupported by the evidence.

In light of the overwhelming competent evidence in the

record, the defendant's guilt was established beyond a reasonable

doubt, and a retrial without the allegedly erroneous evidence

would not change the result.

CONCLUSION

The defendant's statements given during nonrecorded and

electronically recorded interrogations were properly admitted

because the presumptive inadmissibility of such statements under

section 103-2.1(b) was not triggered until the defendant's son

was medically declared dead, which did not occur until after the

two nonrecorded interrogations were concluded. Because the

medical declaration of death controls, the subpoenas issued to

hospital personnel were properly quashed, as no conflicting

expert testimony was offered to challenge the time of the

diagnosis of brain death. The defendant's custodial statements

were voluntarily given under the totality of the circumstances

standard. The failure to conduct a Frye hearing before the

admission of expert testimony on Shaken Baby Syndrome was at

42
No. 1-08-0901

worse harmless error. We affirm the judgment of the circuit

court of Cook County.

Affirmed.

HALL, P.J., and PATTI, J., concur.

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No. 1-08-0901

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

CARL ARMSTRONG,

Defendant-Appellant.

________________________________________________________________

No. 1-08-0901

Appellate Court of Illinois
First District, First Division

Filed: NOVEMBER 2, 2009
_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

HALL, P.J., and PATTI, J., concur.

_________________________________________________________________

Appeal from the Circuit Court of Cook County
Honorable Michael P. Toomin, Judge Presiding
_________________________________________________________________

For PLAINTIFF- James E. Fitzgerald
APPELLEE Alan J. Spellburg
Jon Walters
ANITA ALVAREZ, State's Attorney, County of Cook
Richard J. Daley Center–Room 309
Chicago, Illinois 60602

For DEFENDANT- J. Kevin McCall

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No. 1-08-0901

APPELLANT Kevin Case
JENNER & BLOCK, LLP
330 North Wabash Avenue
Chicago, Illinois 60611

45