People v. Pollock

21 N.E.3d 11

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Tabitha POLLOCK, Defendant–Appellant.

No. 3–12–0773.

Appellate Court of Illinois, Third District.

Oct. 15, 2014.

Rehearing Denied Nov. 17, 2014.

Jane E. Raley, of Northwestern University Legal Clinic, and Karen L. Daniel, of Bluhm Legal Clinic, both of Chicago, and Lawrence C. Marshall (argued), of Stanford Law School, of Stanford, California, for appellant.

Terence M. Patton, State's Attorney, of Cambridge (Richard T. Leonard (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 A Henry County jury convicted defendant, Tabitha Pollock, of aggravated battery and felony murder of her 3 ½-year-old daughter. This court affirmed. People v. Pollock, 309 Ill.App.3d 400, 242 Ill.Dec. 662, 721 N.E.2d 1193 (1999). A divided panel of our supreme court found “insufficient evidence to support the inference that, prior to [the daughter's] death, [defendant] knew [her paramour] was abusing her children.” People v. Pollock, 202 Ill.2d 189, 220, 269 Ill.Dec. 197, 780 N.E.2d 669 (2002). As such, the court reversed Pollock's conviction without remand. Id. at 224, 269 Ill.Dec. 197, 780 N.E.2d 669.

¶ 2 Following the reversal, Pollock filed a petition for a certificate of innocence pursuant to section 2–702 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2–702 (West 2008) ). The matter proceeded to a hearing, after which the circuit court denied Pollock's petition. She appeals. We affirm.

¶ 3 BACKGROUND

¶ 4 Evidence adduced at Pollock's trial indicated that in the early morning hours of October 10, 1995, emergency personnel responded to a call from the home in which Pollock lived with her boyfriend, Scott English. Also residing in the home were Pollock's three children, English's parents, the girlfriend of English's brother and the girlfriend's child. Upon arrival, emergency personnel found Pollock's 3 ½-year-old daughter lying unresponsive on the floor in a bedroom with Pollock attempting to perform cardiopulmonary resuscitation.

¶ 5 Efforts to revive the child proved unsuccessful. The treating physician, who informed Pollock that her daughter was dead, testified at trial. He noted that he had sutured a laceration on the daughter's head a few days before her death. He did not suspect foul play at the time of the sutures, but when the daughter was brought in unresponsive, he did suspect inappropriate behavior and instructed the nurse to document the victim's injuries.

¶ 6 The attending nurse testified that she noted 11 injuries, 10 of which could indicate abuse. The nurse noted numerous bruises on the victim. The forensic pathologist who conducted the child's autopsy determined the cause of death to be blunt force trauma and asphyxiation. The pathologist observed over 100 bruises in various stages of healing on the victim's body. The oldest injury appeared to be, at most, two weeks old and the freshest made minutes or hours before her death.

¶ 7 The pathologist found 13 distinct hemorrhagic injuries on the child's skull. Eight of these injuries were three to four days old. An internal examination revealed more extensive bruising of the victim's chest, abdomen and head.

¶ 8 When questioned by the police, Pollock denied ever striking the victim or knowing about any abuse the victim may have previously suffered. She stated that she had noticed injuries to her children in the weeks preceding the victim's death. She noticed marks on her son's neck; her son told her that the marks were the result of English choking him. She stated, however, English informed her that he had mistakenly grabbed the boy around the neck when the boy began to fall.

¶ 9 Pollock described a similar incident to the police where English informed her that her daughter attempted to get into the bathtub with another child. During this incident, English pushed the daughter, causing the daughter to slip and fall and resulting in the daughter being bruised.

¶ 10 Pollock described other incidents where she found bruising on the victim's face that she attributed to falls. English told Pollock that her daughter had been injured when she fell down the stairs and into a chair at the bottom. Days before the victim's death, Pollock returned home to find that the victim had supposedly fallen off a stool while trying to reach the toothpaste on the bathroom counter. That fall resulted in stitches to the child's head. Pollock stated that her daughter described English as mean.

¶ 11 Pollock acknowledged bathing the victim on October 9, 1995, the day before the paramedics were called to the residence. When asked if she observed any of the 100 injuries described by the pathologist, Pollock stated, “I wouldn't say she had a lot of injuries. She had a few different things here and there.”

¶ 12 Both Pollock's mother and sister testified at trial. They noticed bruises on all of Pollock's children after she moved in with English. They relayed stories the children would tell about Pollock's boyfriend choking them. Pollock's mother testified that the victim took off her shoe and sock to display a bruise on her foot. The victim told her it was from English squeezing her foot too tightly. Pollock's mother acknowledged confronting Pollock with the victim's version of the events that led to the injured foot. Pollock dismissed the accusations as “made up,” yet Pollock's mother stated during the exchange that “I don't think she made this up.”

¶ 13 Pollock's friend, Leslie Huber, testified that a couple of weeks before the victim's death, she was riding in a car with Pollock and the victim. The victim specifically told Pollock, “Scott choked me.” Huber asked Pollock if she had heard what the victim said. Pollock responded in the affirmative, but stated that the victim was likely “making it up.”

¶ 14 Huber and Huber's mother testified that approximately five days before the victim's death, they observed large bruises across the victim's forehead. When discussing the bruises with Pollock, she claimed the victim obtained the bruises by getting her head stuck in a bed's headboard.

¶ 15 The State adduced additional evidence at Pollock's trial suggesting that Pollock had a history of failing to protect her children from abuse. In August of 1994, Pollock brought the victim to a medical clinic in Galva, Illinois, for immunization. When the nurse-practitioner attempted to examine the victim, Pollock became upset. The nurse-practitioner noted a red, swollen area around the right eye of the victim, as well as a dark purple contusion on her upper ear. The victim also had a bruise the size of an adult thumb on her left arm.

¶ 16 When questioned, Pollock explained away these injuries as insect bites. The nurse-practitioner did not believe insect bites could cause such injuries so she reported the incident to the Department of Children and Family Services (DCFS), which subsequently found the report to be “indicated.” DCFS notified Pollock that an indicated report had been filed due to environmental neglect, medical neglect and risk of harm due to cuts, bruises and welts.

¶ 17 Belinda Garvin testified that in March or April of 1995, Garvin observed Pollock striking the victim in the head and kicking the victim in the back. Another witness, Angela Nordstrom, testified that she, too, observed Pollock strike the victim in the head. This occurred in May of 1995. Nordstrom told Pollock she should not strike the victim in such a manner.

¶ 18 In April of 1995, approximately six months prior to the victim's death, Rachel Wiegand reported Pollock to DCFS for bruises she observed on the victim. Wiegand offered to keep and care for the victim, but Pollock declined the offer, stating that she would get into trouble with public aid. As a result of the report, a DCFS investigator went to Pollock's residence to find a padlock on the door. The next day, a police officer approached Pollock, who informed him that she would not be available to DCFS for at least four more days. Thereafter, Pollock informed DCFS that she would not cooperate with any investigation.

¶ 19 Regarding the night that the victim received her fatal injuries, English gave a statement to the police in which he admitted striking the victim in the head shortly before she was found dead. He informed the police that the victim had recently begun winding herself up in her blanket as she slept. That night, he found her asleep with her blanket wound around her. He claimed to have struck her in the back of the head to make her stop winding herself in the blanket. When he checked on the victim a while later, he noticed she was not breathing and carried her into the room he shared with Pollock.

¶ 20 According to Pollock, English arrived home at 12:40 a.m. that night. Sometime after his arrival, she noticed the kids “were a little restless.” She went to check on them and found English at the foot of their bed telling them to go back to sleep. She immediately left the bedroom and stood outside the door out of fear that the kids would wake up if they saw her. English went downstairs to get something to eat, which he brought back to their bedroom. After he ate, they each took a shower. Pollock noted when English returned after taking his shower, he informed her that he just checked on the children and they were fine.

¶ 21 The two watched television until 3 or 3:30 a.m., after which English, again, checked on the children. Upon returning, he informed Pollock that the victim had been wrapped in her blanket and he fixed it. Later, around 5 a.m., Pollock was awakened by English, who informed her that the victim was not breathing.

¶ 22 As noted above, a divided panel of our supreme court reversed Pollock's conviction without remand. Pollock, 202 Ill.2d at 224, 269 Ill.Dec. 197, 780 N.E.2d 669. Thereafter, she filed a certificate of innocence pursuant to section 2–702 of the Code. 735 ILCS 5/2–702 (We...