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Appellate Court Date: 2018.03.29
13:10:49 -05'00'
Burrell v. Village of Sauk Village, 2017 IL App (1st) 163392
Appellate Court BARRY J. BURRELL, Plaintiff-Appellant, v. THE VILLAGE OF
Caption SAUK VILLAGE and TIMOTHY HOLEVIS and ROBERT
GROSSMAN, Police Officers for the Village of Sauk Village,
Defendants-Appellees.
District & No. First District, Third Division
Docket No. 1-16-3392
Filed December 13, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 14-L-8700; the
Review Hon. John Callahan, Judge, presiding.
Judgment Affirmed.
Counsel on James M. Baranyk, of Second City Law, P.C., of Chicago, for
Appeal appellant.
Brian P. Gainer and Garrett L. Boehm, Jr., of Johnson & Bell, Ltd.,
and Jennifer T. Turiello, of Peterson, Johnson & Murray-Chicago
LLC, both of Chicago, for appellees.
Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Cobbs and Justices Howse concurred in the
judgment and opinion.
OPINION
¶1 This appeal arises from the Cook County circuit court’s order granting summary
judgment in a malicious prosecution action to defendants Sauk Village and Sauk Village
police Detectives Timothy Holevis and Robert Grossman. On appeal, plaintiff Barry J.
Burrell contends that the trial court erroneously granted defendants’ motion for summary
judgment because defendants did not have probable cause to charge defendant with first
degree murder. We affirm.
¶2 BACKGROUND
¶3 This case arises from the arrest and prosecution of plaintiff for the murder of his
one-month-old niece Kailie. Plaintiff filed the underlying action on August 19, 2014, after a
jury found him not guilty of first degree murder. The complaint alleged malicious
prosecution and intentional infliction of emotional distress, claiming that defendants
commenced the criminal proceedings without probable cause and with knowledge that
plaintiff was innocent of the crime charged.
¶4 Several depositions were taken during discovery. Plaintiff testified that on August 22,
2006, he was the primary caregiver for his infant niece Kailie, as well as his other three
nieces, two nephews, and son. Sharon McCary, plaintiff’s mother, was working and did not
return home until the evening, while Antoine Burrell, plaintiff’s brother, left for work in the
afternoon. Plaintiff recalled that he saw Kailie three times that day: in the morning when she
was sleeping in her bassinet, in the afternoon lying on the bed with her two sisters Kenita and
Kendra, and in the evening when Kendra brought Kailie to plaintiff exclaiming, “the baby is
not breathing.” Plaintiff patted Kailie on the back, and her “head rolled and her arm fell off
of Kendra’s shoulder.” Plaintiff then told Kendra that Kailie was fine and to put her to sleep
in her bassinet. The next morning plaintiff awoke to McCary screaming that something was
wrong with Kailie, whom plaintiff observed to be stiff. After the paramedics arrived, a
responding officer from the Sauk Village police department asked plaintiff a few questions
about what happened to Kailie. Plaintiff stated that he “didn’t know.” Kendra allegedly told
plaintiff that “the bed fell on the baby,” but plaintiff did not mention this fact to his family,
the paramedics, or police officers.
¶5 The following day, Sauk Village police department officers transported plaintiff to the
Chicago Heights police department to be interviewed by Detectives Holevis and Grossman.
During the interview, Detective Grossman mentioned the possibility that Kendra killed
Kailie, but plaintiff did not mention Kendra’s admission about the bed falling on Kailie.
Instead, plaintiff told the detectives that he was holding Kailie and passed out, which resulted
in his shoulder landing on Kailie’s chest. Plaintiff later admitted that this statement was
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false.1 Plaintiff further testified that toward the end of the interview, Cook County Assistant
State’s Attorney (ASA) Nick D’Angelo questioned plaintiff and accused him of torturing
Kailie. Plaintiff was then transferred and held in county jail until his trial date.
¶6 Kendra testified that on the day of the incident she tripped on some high-heeled shoes
when she was carrying Kailie and fell on the carpeted floor. Kendra then placed Kailie back
in her bassinet, which immediately fell on top of Kailie. Kendra did not recall shaking Kailie
violently, squeezing her tightly, or telling the police or the Department of Child and Family
Services (DCFS) about the above incident. McCary also testified that Kendra confessed to
dropping Kailie, but McCary never reported this to law enforcement officials.
¶7 Detectives Holevis and Grossman testified that the totality of the investigation led them
to believe that plaintiff was responsible for Kailie’s death. Detective Holevis attended the
autopsy, where the medical examiner, Dr. Michelle Jordan, ruled Kailie’s death a homicide
and specifically told Detective Holevis that Kailie’s femur fracture could only have been
caused by an adult. Interviews with McCary and Antoine revealed that plaintiff was the only
adult present at the approximate time of Kailie’s death. The detectives also noted that
throughout the course of his interview, plaintiff claimed that he unintentionally injured Kailie
when he blacked out and fell on her. Neither detective interviewed Kendra or reviewed
interviews conducted by other law enforcement agencies. The detectives were first informed
of Kendra’s alleged statements when the ASA showed Detective Holevis a DCFS report
before trial. Detective Grossman received an anonymous call from someone claiming that
Kendra dropped Kailie, but Detective Grossman did not believe this was relevant because Dr.
Jordan “categorically denied” that dropping Kailie would have caused the fatal injuries.
¶8 Dr. Jordan confirmed her finding of death as homicide by multiple injuries due to blunt
force trauma. During her testimony, she referenced her autopsy report noting that Kailie had
external injuries consisting of “scattered petechial hemorrhages” on her lower gum line and
“a pinpoint red abrasion” on the midline chest. Kailie’s internal injuries consisted of a “skull
fracture” that had “significant brain swelling,” as well as “a pronounced sub scalp and
subgaleal hemorrhage involving the scalp.” Further, “[t]here [were] bilateral rib fractures”
and “optic nerve sheath hemorrhages.” There was also “a contusion or bruise involving the
left diaphragm *** lung contusions *** a liver laceration *** a transverse fracture involving
the left femur or thigh bone, and *** hemorrhage of the soft tissue that encase[d] the bowel.”
Dr. Jordan deduced that all of these injuries were caused by “blunt force trauma,” which
“would be force applied to the body.” For instance, it “would be a punch. It could be a kick.
It could be being struck with an object or the object falling against another object.” When
directly asked if there was “any reason to suspect that a child had caused these significant
injuries that [she] saw and documented,” Dr. Jordan responded, “I would say no, based on
the information that I had at the time.” Additionally, Dr. Jordan received a call from a
woman claiming to be Kailie’s mother, saying “it’s an accident because the child fell out of
the bassinet and the bassinet fell over the child.” Dr. Jordan then requested the bassinet be
brought into the office for examination and was “steadfast in her opinion” that Kailie’s
injuries were not consistent with Kailie falling out of the bassinet. Furthermore, Dr. Jordan
did not believe that “a child carrying the baby who’s approximately four feet, six inches tall,
1
We note that on the interview video recordings plaintiff changed his story regarding the events
pertaining to Kailie’s death several times.
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stumbling and falling, and in the process falling on her knees, dropping the baby on the
carpeted floor” or “a baby landing on high-heeled shoes” could have caused Kailie’s injuries.
Given the severity of Kailie’s injuries, Dr. Jordan did not believe it was probable that a child
was the perpetrator.
¶9 Additionally, testimony from ASAs Mary-Beth Kent-Duffy and Kathryn M. Morrissey
revealed the following. ASA Duffy was involved in the case during pretrial motions, while
ASA Morrissey tried the case to a not guilty verdict. Both ASAs stated that they felt there
was probable cause to prosecute plaintiff, as the felony review division of the Cook County
State’s Attorney’s office approved the charge of murder against plaintiff. The case then went
before a grand jury, which returned a true bill indicting plaintiff of first degree murder.
Thereafter, plaintiff filed a motion to quash his arrest for lack of probable cause, but the trial
court denied the motion after reviewing the evidence.
¶ 10 Neither ASA changed her position on probable cause when the defense presented the
theory that Kendra caused Kailie’s injuries. ASA Duffy recalled that she did not believe a
child was capable of committing the injuries because it “would take an inordinate amount of
strength to be able to break a one-month-old’s bone[s] like that.” ASA Morrissey called the
defense theory “ridiculous” and said that the new Cook County medical examiner, Dr.
Stephen Cina, believed Kendra’s statement of what happened was inconsistent with Kailie’s
injuries. After interviewing Kendra, ASA Morrissey believed that Kendra was “being fed a
story” because her answers were inconsistent with her original statement.
¶ 11 Following discovery, defendants filed a motion for summary judgment arguing that
probable cause existed to charge plaintiff with murder, thus vitiating plaintiff’s malicious
prosecution claim. Defendants’ motion also argued that plaintiff’s intentional infliction of
emotional distress claim was barred by the applicable one-year statute of limitations. After
hearing arguments, the trial court concluded that there was “no genuine issue of material fact
regarding the existence of probable cause” to arrest and prosecute plaintiff. In addition, the
trial court ruled that the intentional infliction of emotional distress claim was indeed filed
“beyond the statute of limitations.” Plaintiff then filed a timely appeal, challenging only the
summary judgment ruling on probable cause in the malicious prosecution claim.
¶ 12 ANALYSIS
¶ 13 Plaintiff contends that the trial court erroneously granted defendants’ motion for
summary judgment for malicious prosecution because there was no probable cause to
prosecute plaintiff for first degree murder. Summary judgment is proper where the pleadings,
admissions, depositions, and affidavits demonstrate there is no genuine issue as to any
material fact so that the movant is entitled to judgment as a matter of law. Ioerger v.
Halverson Construction Co., 232 Ill. 2d 196, 201 (2008); 735 ILCS 5/2-1005 (West 2016). In
determining whether a genuine issue of material fact exists, the court must consider such
items strictly against the movant and liberally in favor of its opponent. Williams v.
Manchester, 228 Ill. 2d 404, 417 (2008). We review the trial court’s order granting summary
judgment de novo. Weather-Tite, Inc. v. University of St. Francis, 233 Ill. 2d 385, 389 (2009).
¶ 14 We initially observe that plaintiff’s brief fails to comply with Illinois Supreme Court
Rule 341 (eff. Feb. 6, 2013). A party’s brief that fails to substantially conform to the
pertinent supreme court rules may justifiably be stricken. Hall v. Naper Gold Hospitality
LLC, 2012 IL App (2d) 111151, ¶ 7. The purpose of the rules is to require parties to present
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clear and orderly arguments, supported by citations of authority and the record, so that this
court can properly ascertain and dispose of the issues involved. Id. Striking a party’s brief, in
whole or in part, is a harsh sanction and is appropriate only when the violations hinder our
review. Gruby v. Department of Public Health, 2015 IL App (2d) 140790, ¶ 12.
¶ 15 We conclude that plaintiff’s glaring rule violation warrants striking his background facts
section. Rule 341(h)(6) requires an appellant’s brief to include a statement “contain[ing] the
facts necessary to an understanding of the case, stated accurately and fairly without argument
or comment, and with appropriate references to the pages of the record on appeal.” Ill. S. Ct.
R. 341(h)(6) (eff. Feb. 6, 2013). “Any statement that is argumentative or made without
reference to the record need not be considered by this court.” Bank of Chicago v. Park
National Bank, 277 Ill. App. 3d 167, 168 (1995). Here, plaintiff’s “statement of facts” is
regrettably but undeniably replete with salacious argument more befitting a dime-store novel
than an appellate brief. See Beitner v. Marzahl, 354 Ill. App. 3d 142, 145-46 (2004) (“[t]he
appellate court has held that argumentative language is inappropriate for a statement of facts
and against the mandate of the rule”). Thus, we disregard plaintiff’s background facts when
reviewing this matter and instead focus on the record on appeal, defendants’ background
facts, and the parties’ arguments.
¶ 16 In order to prevail on a claim of malicious prosecution, the plaintiff must establish each
of the following: (1) the commencement or continuance of an original criminal or civil
judicial proceeding by the defendant, (2) the termination of the proceeding in favor of the
plaintiff, (3) the absence of probable cause for such proceeding, (4) malice, and (5) damages.
Fabiano v. City of Palos Hills, 336 Ill. App. 3d 635, 641 (2002). Probable cause has been
defined as “a state of facts that would lead a person of ordinary caution and prudence to
believe, or entertain an honest and strong suspicion, that the person arrested committed the
offense charged.” (Internal quotation marks omitted.) Ross v. Mauro Chevrolet, 369 Ill. App.
3d 794, 801 (2006). The “existence of probable cause depends on the totality of the
circumstances at the time of the arrest.” Gauger v. Hendle, 2011 IL App (2d) 100316, ¶ 112.
It is not the actual facts of the case or the guilt or innocence of the accused that is at issue,
instead “it is the state of mind of the one commencing the prosecution.” (Internal quotation
marks omitted.) Johnson v. Target Stores, Inc., 341 Ill. App. 3d 56, 72 (2003). Only a mistake
or error of gross negligence will affect the question of probable cause when there is an honest
belief by the complainant that the accused is probably guilty of the offense. Id. “If it appears
that there was probable cause to institute the proceedings, such fact alone constitutes an
absolute bar to an action for malicious prosecution.” Turner v. City of Chicago, 91 Ill. App.
3d 931, 934-35 (1980) (citing Mangus v. Cock Robin Ice Cream Co., 52 Ill. App. 3d 110, 116
(1977)).
¶ 17 Based on the record before us, we cannot say that the trial court erred in determining that
there was probable cause to prosecute defendant, and in doing so, we find Sang Ken Kim v.
City of Chicago, 368 Ill. App. 3d 648 (2006), persuasive. In Kim, the plaintiff was charged
with first degree murder and aggravated criminal sexual assault for beating his pregnant
girlfriend and killing her unborn baby. Id. at 652. Based on the victim’s statement and the
plaintiff’s partial confession for pushing the victim, a grand jury indicted the plaintiff, who
was released three years later after the victim recanted. Id. at 653. The plaintiff then filed a
malicious prosecution suit contending that the police coerced his partial confession and did
not contact key individuals during the investigation. After examining the totality of the
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circumstances, this court determined that, independent of the plaintiff’s partial confession,
the defendants “had ample probable cause at the time of arrest to believe [the plaintiff] had
committed a crime.” Id. at 660. Specifically, the medical examiner who performed the baby’s
autopsy determined that the manner of death was homicide due to “blunt abdominal trauma.”
Id. at 656. Thus, “based on the above information, which was known to the detectives at the
time of the arrest, the detectives held an objectively reasonable belief that [the] plaintiff had
committed murder.” Id.
¶ 18 Similarly, in the case sub judice, the record suggests that the totality of the circumstances
gave detectives and the prosecution an objectively reasonable belief that plaintiff caused
Kailie’s death. Even independent of plaintiff’s confession to unintentionally injuring Kailie,
additional evidence existed to substantiate plaintiff’s guilt. Several witnesses, including
plaintiff, confirmed that he was the only adult present at the time of Kailie’s death. In
addition, Dr. Jordan ruled Kailie’s death a homicide and deduced that all of Kailie’s injuries
were caused by blunt force trauma. She specifically told Detective Holevis that Kailie’s
injuries could only have been caused by an adult and confirmed this conclusion during her
discovery deposition. Dr. Jordan also examined the bassinet and determined that Kailie’s
injuries were not consistent with Kailie falling out of the bassinet. Dr. Jordan observed that
Kendra’s alleged statement about tripping on high-heeled shoes and dropping Kailie on the
carpeted floor could not have caused Kailie’s injuries. Simply put, Dr. Jordan did not believe
it was probable that a child committed the offense.
¶ 19 Both Detectives Holevis and Grossman also testified that they did not interview Kendra
and were unaware of any statements she allegedly made about her involvement in Kailie’s
death until the eve of trial. Further, although ASAs Duffy and Morrissey knew about
Kendra’s alleged statements, they both believed probable cause existed to prosecute plaintiff
based on the circumstances and medical examiner’s determination. See Grundhoefer v. Sorin,
2014 IL App (1st) 131276, ¶ 13 (“[i]t is the state of mind of the one commencing the
prosecution, and not the actual facts of the case or the guilt or innocence of the accused, that
is at issue” (internal quotation marks omitted)). Furthermore, there were ample checks and
balances in place. For instance, the felony review process approved the charges of first
degree murder against plaintiff, and the grand jury returned an indictment after hearing all of
the evidence. In addition, after reviewing the evidence the trial court denied plaintiff’s
motion to quash his arrest and subsequent motion to reconsider. Thus, when the evidence as a
whole was taken into consideration, it was not unreasonable for defendants to have arrested
and prosecuted plaintiff for first degree murder. See Aboufariss v. City of DeKalb, 305 Ill.
App. 3d 1054, 1062 (1999) (in a malicious prosecution case, summary judgment was proper
on the question of probable cause where defendants held an objectively reasonable belief that
plaintiff had committed a crime); Knox County v. Midland Coal Co., 265 Ill. App. 3d 782,
787 (1994) (“probable cause has been defined in a malicious prosecution case involving
criminal proceedings as a state of facts that would lead a [person] of ordinary caution and
prudence to believe, or to entertain an honest and strong suspicion, that the person arrested
committed the offense charged” (internal quotation marks omitted)).
¶ 20 Moreover, plaintiff has forfeited his contention that defendants acted with malice, as
plaintiff’s brief lacks a thorough analysis applying the facts at issue to this area of law. See
Wilbourn v. Cavalenes, 398 Ill. App. 3d 837, 852 (2010) (“cursory argument does not meet
the standard of Illinois Supreme Court Rule 341(h)(7)”); Country Mutual Insurance Co. v.
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Styck’s Body Shop, Inc., 396 Ill. App. 3d 241, 254-55 (2009) (bare contentions in the absence
of argument or citation of authority do not merit consideration on appeal and are forfeited).
And despite plaintiff’s deficient argument, since we have already determined that there was
probable cause to prosecute plaintiff, his claim for malicious prosecution fails as a matter of
law. See Swick v. Liautaud, 169 Ill. 2d 504, 512 (1996) (the absence of any one of the
elements bars a plaintiff from pursuing a claim for malicious prosecution). Accordingly, the
trial court did not err in granting defendants’ motion for summary judgment.
¶ 21 CONCLUSION
¶ 22 Based on the foregoing, we affirm the judgment of the circuit court of Cook County.
¶ 23 Affirmed.
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