FIFTH DIVISION May 18, 2007
No. 1-04-2704
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) ) LATONYA STARNES, ) Honorable ) Lawrence P. Fox, Defendant-Appellant. ) Judge Presiding.
JUSTICE O’MARA FROSSARD delivered the opinion of the court:
Latonya Starnes was convicted following a jury trial of the first-degree murder of her
infant son, Bryant, and sentenced to 50 years in prison. Defendant raises five issues on appeal.
Defendant argues she was denied a fair trial because the prosecutor during rebuttal argument said
the defense theory of the case amounted to an accusation of conspiracy against the State’s
witnesses. The defendant contends the jury was improperly instructed on the law as to her
eligibility for an extended-term sentence and her 50-year sentence was excessive. She also seeks
correction of her mittimus to reflect credit for an additional 60 days of time served. Finally,
defendant argues that the required extraction of her blood and storage of her DNA profile violates
her fourth amendment rights. For the reasons set forth below, we affirm.
BACKGROUND
Shortly after 8:30 p.m. on December 29, 2001, paramedics were called to a home at 5800 1-04-2704
S. Wolcott Avenue in Chicago to treat 11-month-old Bryant Starnes. When they arrived, Bryant
was unconscious and not breathing. He was rushed by ambulance to Holy Cross Hospital, and
paramedics administered CPR. Their efforts were unsuccessful, however, and Bryant was
pronounced dead later that night at the hospital.
Shortly after Bryant was pronounced dead, around 9:20 p.m., Chicago police officer
Rachel Krass received a call to report to Holy Cross Hospital regarding a death investigation. At
the hospital, Officer Krass spoke to defendant Latonya Starnes, who told Krass that her baby had
been crying, shaking, and acting strangely all evening. She told Officer Krass that she was
dressing the baby in a snowsuit and preparing to take him outside when she discovered he had
stopped breathing.
The following day, Dr. Kendall Crowns of the Cook County medical examiner’s office
performed an autopsy on the child and determined that Bryant had died from blunt trauma to the
abdomen, causing laceration of the liver and hemoperiteneum, or blood in the abdominal cavity.
Dr. Crowns ruled the death a homicide, and he would later testify during defendant’s criminal trial
that Bryant’s liver laceration was the largest he had ever seen in a child.
On the morning of January 1, 2002, Chicago police detective Michael Adams was
assigned to investigate Bryant’s death. Adams and his partner went to the home at 5800 S.
Wolcott Avenue, where they asked defendant and her mother, Allean Eurby, to come to Area One
police headquarters for questioning. When the women arrived at Area One headquarters, they
were placed in separate rooms and given their Miranda warnings. During questioning, defendant
told police that around 6 p.m. on December 29, 2001, she went to McDonald’s to pick up dinner,
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leaving Bryant alone with defendant’s boyfriend, Antwon McBride (McBride). After defendant
returned home 15 to 20 minutes later, she ate her dinner and went into her bedroom, where
Bryant was sleeping. She noticed that Bryant was acting strangely, and she called an ambulance.
She then began dressing Bryant in a snowsuit in preparation for taking him to the hospital.
Defendant remained at Area One headquarters while police left to question McBride.
When the officers returned and informed defendant that her boyfriend had not corroborated her
account, she changed her story. Defendant on videotape stated that during the evening of
December 29, 2001, she was alone with Bryant in McBride’s bedroom (defendant, Bryant,
McBride, McBride’s mother, and several members of his family all lived together in the house on
Wolcott). McBride had left the house earlier to go to a party, and the defendant was depressed
and frustrated that she had to watch the baby and could not accompany him to the party.
Defendant then went to McDonald’s to pick up dinner for herself, McBride’s mother, and some
other relatives, and she returned 15 to 20 minutes later. After eating her dinner, defendant
returned to McBride’s room, where Bryant was sleeping. She watched television and once again
began feeling depressed. She thought about taking her own life, but then thought it would be
better to end Bryant’s life. She then straddled the baby, put her hands on his right abdomen, and
pushed down three times, increasing the pressure each time until, by the third time, she was
pushing with all of her body weight during her videotaped statement, which was played for the
jury at trial, defendant demonstrated on a doll how she pushed on Bryant’s abdomen. The baby
began moaning and, after a few minutes, his lips began changing color, and the defendant said in
her statement that she knew he was in pain.
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Defendant then called her mother, called a friend from church, and told members of the
McBride family who were at the apartment that something was wrong with her baby, though she
did not tell them that she had pushed on his abdomen. She then began dressing Bryant in a snow
suit and prepared to take him to the hospital. Eventually, an ambulance was called, and Bryant
was rushed to the hospital, where he was pronounced dead.
PROSECUTOR’S REMARKS DURING REBUTTAL ARGUMENT DID NOT DENY DEFENDANT A FAIR TRIAL
Defendant argues she was denied a fair trial because the prosecutor stated during rebuttal
argument that the defense theory of the case amounted to an accusation of a conspiracy by the
police, medical personnel and the McBride family. Defendant contends such argument “shifted
the burden of proof to Starnes to disprove the existence of such a conspiracy by showing that the
police officers, medical personnel, and the McBride family had lied.”
Prosecutors must demonstrate respect and due regard for a defendant’s constitutional
right to a fair and impartial trial. People v. Clark, 114 Ill. App. 3d 252, 256 (1983). Prosecutors
are, however, allowed great latitude in closing argument, and improper comments generally do
not require reversal unless they result in substantial prejudice to the accused. People v. Sutton,
316 Ill. App. 3d 874, 893 (2000). While a prosecutor may not make arguments or assumptions
that have no basis in evidence, improper comments or remarks are not reversible error unless they
are a material factor in the conviction or cause substantial prejudice to the accused. People v.
Tipton, 207 Ill. App. 3d 688, 699-700 (1990).
“In determining whether a prosecutor’s closing comments are prejudicial, reference must
be made to the content of the language used, its relation to the evidence, and the effect of the
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argument on the rights of the accused to a fair and impartial trial.” People v. Brown, 113 Ill.
App. 3d 625, 630-31 (1983). Where there are allegations of prosecutorial misconduct, the
arguments of both the prosecutor and the defense attorney must be reviewed in their entirety so
that the prosecutor’s statements can be put in their proper context. Sutton, 316 Ill. App. 3d at
893. Finally, where the challenged comments are part of rebuttal closing argument, “they will not
be held improper if they appear to have been provoked or invited by the defense counsel’s
argument.” People v. Crowder, 256 Ill. App. 3d 91, 100 (1993).
In the instant case, regarding the prosecution’s theory of the case, defense counsel stated
during various points in closing argument as follows:
“They had a theory and that theory was Latonya. They didn’t talk
to her until 10:30.
The purpose of going into that room was to get a statement
out of her in order to get the medical examiner to make some kind
of ruling and they had a theory. Even the medical examiner now
has gone in with this theory.
***
So they keep trying to fit this theory, like there’s something
wrong with her putting her child in a snow suit.
What you know - - Think about that tape. I know the tape
was hard for each and every one of you to watch. But the thing is
those are things that were fed to her. She never hurt that baby.
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She tried to get help. She went out there, they laughed at her; well,
you don’t know anything about babies. Not one of them called an
ambulance. They had a car there. One of the people there had a
car - -
Laceration to a liver. You know the baby bled out. But
what the medical examiner says as far as how it happened does not
match his report. What they have her say in the video does not
match his report. And what that shows you is that you do not
know beyond a reasonable doubt whether the baby’s death, the
laceration was caused intentionally by human hand or by an
accident. You don’t know that.”
During rebuttal closing argument, the prosecutor responded to defense counsel’s
argument that various witnesses, including police officers and medical personnel, conspired to
frame defendant for the death of her son. The prosecutor began the rebuttal as follows:
“What are they asking you to believe happened here? What
happened here? What are they asking you to believe? That she is
the victim of a conspiracy? That somehow the police officers, the
detectives, Adams and Lewis, the medical examiner, the paramedic,
Jim Stohl, the police officer, Officer Krass, they all got together,
and they got together with the McBride family and they decided,
hey, you know what we’re going to do, we’ve got a dead baby and
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we’re going to put it on her. Maybe they met in a coffee shop,
maybe right before the murder, hey, you know, we’re going to pin
this case on her, we got a dead baby, we’re going to put it on
someone, we’ll put it on her.
Is that what they’re asking you to believe? What a joke.
How outrageous. That’s what they want you to believe, that this is
some sort of conspiracy, that some detectives, Adams and Lewis,
got together with the McBrides and said, okay, we’ll put - - we’re
going to murder the baby and then put it on her.
Well, let’s see we need some help. Hey, give Dr. Crowns a
call at the Medical Examiner’s Office. He’ll help us. You know,
we will need a police officer, paramedic. Let’s give Jim Stohl a
call. Let’s give - - We need some other people. Let’s get the
McBrides here. We’ll get Antwon involved in this.
Is that what happened here? What a joke. That’s not what
happened.
You know, with regard to this conspiracy, the conspiracy
they want you to believe that somehow everyone got together to
put it on her, why not put it on Antwon? Why not put the case on
Antwon? Why her? Out of the blue Detective Lewis, Detective
Adams, Dr. Crowns, they haven’t testified they know her and have
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anything against her, and they are going to conspire with the
McBride family to put this case on her for no reason and let the real
baby killer go and then force her to confess?
What they are asking you to believe is ridiculous. It’s
ridiculous and outrageous, that there is some sort of conspiracy
here against her.”
In addressing defendant’s argument that these comments by the prosecution deprived her
of a fair trial, we find People v. Jackson, 299 Ill. App. 3d 104 (1998), instructive. In Jackson the
defendant contended the prosecution in rebuttal argument shifted the burden of proof by
characterizing the defense theory as an accusation of conspiracy against the defendant by various
persons, including the prosecution, police, and the victim. In rejecting this argument, Jackson
found the prosecution’s argument was invited by defense counsel’s argument that the police
fabricated evidence and lied to defendant to obtain a confession. Jackson, 299 Ill. App. 3d at
109-10. The court in Jackson concluded as follows:
“The remarks made by the State regarding a conspiracy were in
response to the defense counsel’s remarks that the detectives
fabricated evidence and lied to defendant. Moreover, the State did
not tell the jury that it had to believe that all the State’s witnesses
were lying in order to acquit defendant. We find there was no
error.” Jackson, 299 Ill. App. 3d at 110.
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In the instant case, similar to Jackson, the prosecution in rebuttal was responding to
defense counsel’s arguments that the police had a theory, fed it to defendant, and had her say
things on the videotape that did not match the medical examiner’s report. The prosecution was
responding to defense counsel’s argument that “[e]ven the medical examiner now has gone in with
this theory” and what the police “have her say in the video does not match his report.” When
viewed in context of defense counsel’s argument that the police had a “theory,” the medical
examiner was in on it, and the police “fed” defendant the statements she made, the prosecutor’s
response was proper. Jackson, 299 Ill. App. 3d at 110. Indeed, the comments were clearly
invited by defense counsel’s argument and, as such, they are proper. People v. Crowder, 256 Ill.
App. 3d 91, 100 (1993) (remarks by prosecution in rebuttal argument are not improper if
provoked or invited by defense counsel’s argument).
However, even if the prosecutor’s comments were improper, the record does not reflect
the defendant was prejudiced or deprived of a fair trial. On the contrary, the trial judge instructed
the jurors that anything either of the attorneys said during closing arguments should not be
considered as evidence and any comments not based on the evidence should be disregarded. The
record reflects no reason to conclude that the jury disregarded these instructions. People v.
Illgen, 145 Ill. 2d 353, 376 (1991) (it is presumed the jury will follow the instructions).
Moreover, any error would be harmless beyond a reasonable doubt based on the strength of the
evidence demonstrating defendant’s guilt. People v. Cisewski, 118 Ill. 2d 163, 175 (1987);
People v. Wood, 341 Ill. App. 3d 599, 614-15 (2003). For the reasons previously discussed, we
reject defendant’s argument that the prosecution’s comments during rebuttal denied defendant a
fair trial.
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JURY INSTRUCTIONS REGARDING ELIGIBILITY FOR AN EXTENDED-TERM SENTENCE
Defendant contends the jury was improperly instructed regarding her eligibility for an
extended-term sentence, thereby depriving her of a fair trial. In support of that argument,
defendant relies on the fact that instructions and verdict forms were defective because they
required the jury to determine unanimously that defendant’s conduct was not “brutal or heinous”
beyond a reasonable doubt.
Under the due process clause of the fifth amendment, as well as the notice and jury trial
guarantees of the sixth amendment, “ ‘any fact (other than [a] prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven
beyond a reasonable doubt.’ ” Apprendi v. New Jersey, 530 U.S. 466, 476, 147 L. Ed. 2d 435,
446, 120 S. Ct. 2348, 2355 (2000), quoting Jones v. United States, 526 U.S. 227, 243 n.6, 143 L.
Ed. 2d 311, 326 n.6, 119 S. Ct. 1215, 1224 n.6 (1999).
In Illinois, trial courts are responsible for making sure that the jury is properly instructed
on the elements of the charged offense (People v. Davis, 313 Ill. App. 3d 585, 589 (2000)), as
well as any factors that may increase the maximum penalty for an offense (Apprendi, 530 U.S. at
476, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355). A trial court need not rely on pattern jury
instructions, however, and may in its discretion use nonpattern jury instructions. People v.
Pollock, 202 Ill. 2d 189, 211 (2002) (decision to use nonpattern jury instructions reviewed for
abuse of discretion); People v. Hudson, 222 Ill. 2d 392, 407-08 (2006) (finding no reversible
error, even where a clearer and more concise instruction could have been given).
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In the instant case, because a finding by the jury that the defendant’s crime was
accompanied by “brutal or heinous behavior” was an aggravating factor that could potentially
increase the maximum penalty for the offense, that fact had to be submitted to the jury and proven
beyond a reasonable doubt. Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355.
Similarly, the fact that the victim was less than 12 years old was an aggravating factor that
subjected the defendant to potentially greater punishment and, as such, this fact had to be
submitted to the jury and proven beyond a reasonable doubt.
Defendant contends the instructions and verdict forms were defective because in order to
preclude consideration of the aggravating factor they required the jury to unanimously determine
beyond a reasonable doubt that the defendant’s conduct was not brutal or heinous. The jury in
the instant case was instructed as follows:
“We, the jury, find the fact does not exist, beyond a
reasonable doubt, that the offense of first degree murder was
accompanied by exceptionally brutal or heinous behavior indicative
of wanton cruelty and that the victim was under 12 years of age.”
[followed by lines for 12 signatures]
And
“We, the jury, find the fact does exist, beyond a reasonable
doubt, that the offense of first degree murder was accompanied by
exceptionally brutal or heinous behavior indicative of wanton
cruelty and that the victim was under 12 years of age.”
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Defendant, relying on People v. Ramey, 152 Ill. 2d 41, 77 (1992), contends the
instructions and verdict forms were “seriously flawed in requiring a unanimous decision that
Starnes’ conduct was not brutal and heinous.” In Ramey, the court resolved a similar challenge as
to whether a verdict against the death penalty need be unanimous and concluded that “the belief
by one juror that any one mitigating factor sufficient to preclude the death penalty exists is
sufficient to do so.” Ramey, 152 Ill. 2d at 77; see People v. Miller, 173 Ill. 2d 167, 196-98
(1996) (a verdict against the death penalty need not be unanimous).
Defendant argues the Illinois Pattern Jury Instructions, specifically, IPI Criminal 3d Nos.
7B.10 and 7B.12, used in first-stage death penalty hearings, are instructive. Illinois Pattern Jury
Instructions, Criminal, Nos. 7B.10, 7B.12 (3d ed. 1992). We agree that the format of those
instructions could be helpful in developing more clear instructions for the jury regarding the issues
raised by the State’s requirement to prove beyond a reasonable doubt any factor that qualifies a
defendant for an enhanced sentence.
In the instant case, the verdict forms could have provided as follows:
We, the jury, unanimously find beyond a reasonable doubt
that the defendant Latonya Starnes is eligible for an enhanced
sentence under the law. We unanimously find beyond a reasonable
doubt that the offense of first degree murder was accompanied by
exceptionally brutal or heinous behavior indicative of wanton
cruelty and that the victim was under 12 years of age.
[lines for 12 signatures follow]
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We, the jury, cannot unanimously find beyond a reasonable
doubt that the defendant Latonya Starnes is eligible for an enhanced
sentence under the law. We cannot unanimously find beyond a
reasonable doubt that the offense of first degree murder was
accompanied by exceptionally brutal or heinous behavior indicative
of wanton cruelty and that the victim was under 12 years of age.
The other instruction reflecting this issue could similarly have been modified. The above
language, unlike the language used in the instant case, cannot be argued to have shifted the
burden of proof to the defense.
In the instant case, the defendant recognizes that the trial court did not impose an
extended-term sentence based on the jury’s finding that defendant’s conduct was brutal or
heinous. However, defendant argues “it cannot be determined whether the trial court would have
sentenced Starnes to a term closer to the minimum (20 years), had the improper jury finding of an
aggravating factor not been made.” We recognize that the trial court sentenced defendant close
to an extended-term sentence and the trial court acknowledged that fact.
We note, the record does not reflect that the experienced trial judge in any way relied on
the brutal or heinous findings made by the jury in imposing sentence. Such findings would
become relevant if the sentencing judge was considering an extended-term sentence or a life
sentence. Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63; see People v.
Rovito, 327 Ill. App. 3d 164, 178 (2001). In resolving defendant’s motion for new trial, which
immediately preceded the sentencing hearing, the trial judge demonstrated an accurate
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understanding of the law as it related to the issue of enhancing defendant’s sentence based on
exceptionally brutal or heinous conduct as reflected by the following:
“THE COURT: And, of course, all of this stuff with respect
to brutal and heinous would only come into play if the defendant is
eventually sentenced to extended term in this case, and if she isn’t
sentenced to an extended term, then there isn’t any issue as far as
I’m concerned.”
The unenhanced sentencing range for first degree murder is 20 to 60 years. 730 ILCS
5/5-8-1(a)(1)(a) (West 2000). Defendant was sentenced to 50 years in the Illinois state
penitentiary. Had the judge relied on the jury’s findings that the victim was under age 12 and that
the offense was accompanied by exceptionally brutal or heinous behavior, indicative of wanton
cruelty, the defendant would have been eligible for an extended-range sentence of 60 years’ to
100 years’ imprisonment or natural life imprisonment. 730 ILCS 5/5-5-3.2(b)(2), (b)(4), 5-8-
2(a)(1) (West 2000). We are mindful that defendant challenges the instructions related to the
finding of brutal or heinous behavior by the jury, and further challenges the impact of that finding
on the 50-year sentence imposed by the trial judge. However, the record reflects that no
enhanced sentence was imposed and no comment by the judge suggested an enhanced sentence
was under consideration. As previously noted, the trial court acknowledged the 50-year sentence
was close to an extended-term sentence, but also correctly recognized that issues regarding
“brutal and heinous would only come into play if the defendant is eventually sentenced to
extended term in this case.”
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In determining whether a mistake or misunderstanding of the law by the trial judge
influenced the sentencing decision and deprived defendant of a fair sentencing hearing, we note
that reviewing courts “look to whether the trial court’s comments show that the court relied on
the mistaken belief or used the mistaken belief as a reference point in fashioning the sentence.”
People v. Hill, 294 Ill. App. 3d 962, 970 (1998). This is unlike the situation where the judge
imposes a sentence based on an incorrect understanding of the law or a faulty factual finding.
People v. Hausman, 287 Ill. App. 3d 1069, 1072 (1997) (and cases cited therein). Moreover, not
every misstatement or misunderstanding by the trial judge actually influences the sentencing
decision. People v. Beals, 162 Ill. 2d 497, 510-11 (1994) (finding no plain error existed where
the trial court improperly stated the maximum sentence was natural life and sentenced the
defendant to 80 years in prison). As previously discussed, the trial judge in the instant case was
not operating under any misunderstanding when he imposed the 50-year unenhanced sentence.
We further note that the decision to use a non-IPI jury instruction is within the discretion
of the trial court. People v. Pollock, 202 Ill. 2d 189, 211 (2002). At the point in time when this
case was tried, the IPI instructions had not been modified to comply with Apprendi. “Where
there is no IPI jury instruction on a subject on which the court determines the jury should be
instructed, the court has the discretion to give a non-IPI instruction.” Hudson, 222 Ill. 2d at 400.
While it would have been preferable to have used a more precise instruction and verdict form in
order to communicate to the jury that a single juror’s “no” vote would prevent an affirmative
verdict of brutal or heinous conduct, we find no abuse of discretion.
Moreover, the record reflects that any confusion or error was harmless beyond a
reasonable doubt and had no impact on the sentence imposed by the trial judge. People v. Rovito,
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327 Ill. App. 3d 164, 178 (2001) (Apprendi error was harmless where the trial court did not
impose an extended-term sentence). The trial judge did not impose either a natural life sentence
or an extended term; accordingly, Apprendi concerns were not implicated. The record reflects the
brutal or heinous finding by the jury was not a sentencing factor considered by the trial judge in
imposing the unenhanced 50-year sentence. For the reasons previously discussed, we reject
defendant’s argument that she was prejudiced by any instruction error.
TRIAL COURT DID NOT ABUSE ITS DISCRETION BY SENTENCING DEFENDANT TO 50 YEARS IN PRISON FOR THE FIRST-DEGREE MURDER OF HER INFANT SON
Defendant contends the trial court abused its discretion in sentencing her to 50 years in
prison for the first-degree murder of her infant son because the sentence gave inadequate
consideration to defendant’s youth, lack of criminal history, background, and potential for
rehabilitation.
A trial court’s imposition of sentence is entitled to great deference. People v. O’Neal, 125
Ill. 2d 291, 297 (1988). Although a reviewing court has the authority to reduce a sentence, the
court may only exercise this authority if the trial court abused its discretion in imposing the
sentence. 134 Ill. 2d R. 615(b)(4); People v. Porter, 277 Ill. App. 3d 194, 200 (1995). A
reviewing court should not, however, substitute its judgment for that of the trial court and reduce
an offender’s sentence merely because it would have weighed the factors differently and reached a
different result. People v. Streit, 142 Ill. 2d 13, 19 (1991). Generally, the trial court is in a better
position than a court of review to determine an appropriate sentence considering the particular
facts and circumstances of each individual case. People v. Perruquet, 68 Ill. 2d 149 (1977). The
trial court is the proper forum for the determination of a defendant’s sentence, and the trial
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court’s sentencing decisions are entitled to great deference and weight. Perruquet, 68 Ill. 2d at
154. If the sentence imposed is within the statutory range, it will not be deemed excessive unless
it is greatly at variance with the spirit and purpose of the law or is manifestly disproportionate to
the nature of the offense. People v. Fern,189 Ill. 2d 48, 54 (1999).
Under Illinois law, a defendant convicted of first-degree murder shall be sentenced to no
less than 20 and no more than 60 years in the Illinois state penitentiary. 730 ILCS 5/5-8-
1(a)(1)(a) (West 2000). In the instant case, a review of the record indicates the judge relied on
proper aggravating and mitigating factors in imposing sentence. The record reflects the trial court
was fully aware of the circumstances surrounding the crime and of defendant’s lack of criminal
history. Relevant factors in determining an appropriate sentence include the nature of the crime,
protection of the public, deterrence, and punishment, as well as the defendant’s rehabilitative
prospects and youth. People v. Whitehead, 171 Ill. App. 3d 900, 908 (1988). Additionally, the
sentencing judge may consider such factors as the defendant’s credibility, demeanor, general
moral character, mentality, social environment, habits, and age. Fern, 189 Ill. 2d at 53. The
weight attributed to each factor in aggravation and mitigation in imposing a sentence depends on
the particular circumstances in each case. People v. D’Arezzo, 229 Ill. App. 3d 428 (1992).
We note that a trial court need not articulate the process by which it determines the
appropriateness of a given sentence. People v. Wright, 272 Ill. App. 3d 1033, 1045-46 (1995).
In the instant case, the experienced trial judge properly considered factors in aggravation and
mitigation and sentenced defendant within the statutory range. He concluded as follows:
“This was an absolutely senseless, selfish, and premeditated
act on the part of the defendant. And I believe that the evidence
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shows that her motive was basically that the child was cramping her
life-style and that she just wanted to get rid of it.
I’m also negatively impressed by her testimony at trial and
what she said when she testified and her lack of remorse that the
State has appropriately argued here.
But, I don’t think under the totality of the circumstances it’s
necessary to sentence her to an extended term sentence. I do,
however, think it’s necessary to sentence her to close to an
extended term sentence. And I have given this case a lot of
thought, and I have considered all of the factors in aggravation and
mitigation provided by statute that I’m required to consider, and I
think that the appropriate sentence based on the evidence that I
heard in this case and the history and character of the defendant is a
sentence of 50 years Illinois Department of Corrections.”
The trial court was informed of the defendant’s youth, her difficult background, her lack
of a criminal history, and her potential for rehabilitation. Defendant murdered her own
defenseless, infant son by pressing on his abdomen with such force that his liver was lacerated
nearly in half. She then watched for several minutes as the baby moaned and lost consciousness.
She did this, as reflected in her videotaped statement, because she wanted to attend a party with
her boyfriend and felt the baby was holding her back. When she addressed the court during
sentencing she expressed no remorse, but only articulated concern regarding what sentencing
credits she would receive.
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For the reasons previously discussed, we do not find that the sentence imposed in this case
is at odds with the purpose and spirit of the law or disproportionate to the nature of the offense.
Accordingly, we conclude the experienced trial judge considered the appropriate factors in
sentencing defendant. The sentence imposed was an appropriate exercise of discretion and the
50-year term was not excessive.
DEFENDANT’S MITTIMUS WILL BE CORRECTED TO REFLECT THAT SHE SERVED 943 DAYS PRIOR TO SENTENCING
Defendant’s fourth claim on appeal is that she was incarcerated for 943 days prior to
sentencing but received credit for only 883 days. She therefore asks this court to correct her
mittimus to reflect an additional 60 days of sentencing credit. The State concedes that defendant
is entitled to an additional 60 days of sentencing credit and notes that this court may correct the
mittimus itself and need not remand to the trial court. People v. McCray, 273 Ill. App. 3d 396,
403 (1995). Accordingly, we instruct the clerk of the circuit court to correct defendant’s
mittimus to reflect credit for 943 days defendant spent in custody prior to sentencing.
THE FORCED EXTRACTION OF DEFENDANT’S BLOOD AND STORAGE OF HER DNA PROFILE DO NOT VIOLATE DEFENDANT’S FOURTH AMENDMENT RIGHTS
Finally, defendant argues that the Illinois DNA databank statute (730 ILCS 5/5-4-3 (West
2004)), which provides that anyone found guilty of a qualifying felony must provide a blood,
saliva, or tissue sample to the Illinois Department of State Police for DNA analysis and
categorization into genetic marker groupings, violates the fourth amendment prohibition against
unreasonable searches and seizures. We reject this argument, however, because the Illinois
Supreme Court has recently held that the statute is constitutional. People v. Garvin, 219 Ill. 2d
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104, 125 (2006).
CONCLUSION
For the reasons previously discussed, we affirm defendant’s conviction and sentence. We
order the clerk of the circuit court to correct the mittimus to reflect credit for 943 days defendant
spent in custody prior to sentencing. We reject’s defendant’s argument that the DNA statute is
unconstitutional (730 ILCS 5/5-4-3 (West 2004)) and, accordingly, refuse to expunge her DNA
records from the DNA database.
Affirmed; mittimus ordered corrected.
O’BRIEN, P.J., and GALLAGHER, J., concur.