{ "id": 349609, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TABITHA POLLOCK, Defendant-Appellant", "name_abbreviation": "People v. Pollock", "decision_date": "1999-12-10", "docket_number": "No. 3\u201496\u20141077", "first_page": "400", "last_page": "408", "citations": [ { "type": "official", "cite": "309 Ill. App. 3d 400" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "186 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243853 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-2d/186/0001-01" ] }, { "cite": "508 N.E.2d 687", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "116 Ill. 2d 425", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543305 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/116/0425-01" ] }, { "cite": "692 N.E.2d 1109", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "181 Ill. 2d 297", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821396 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-2d/181/0297-01" ] }, { "cite": "683 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "188" } ], "opinion_index": 0 }, { "cite": "291 Ill. App. 3d 145", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456208 ], "year": 1997, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0145-01" ] }, { "cite": "626 N.E.2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "157 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778576 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-2d/157/0401-01" ] }, { "cite": "637 N.E.2d 992", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "159 Ill. 2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781338 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/159/0272-01" ] }, { "cite": "478 N.E.2d 291", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "106 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3139376 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/106/0373-01" ] }, { "cite": "521 N.E.2d 38", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "121 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201150 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-2d/121/0401-01" ] }, { "cite": "568 N.E.2d 755", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "142 Ill. 2d 410", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236771 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/142/0410-01" ] }, { "cite": "497 N.E.2d 1183", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 360", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3605530 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0360-01" ] }, { "cite": "604 N.E.2d 1009", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "237 Ill. App. 3d 503", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5164515 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0503-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "606 N.E.2d 1201", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "153 Ill. 2d 218", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738071 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-2d/153/0218-01" ] } ], "analysis": { "cardinality": 854, "char_count": 18519, "ocr_confidence": 0.764, "pagerank": { "raw": 4.666970501906556e-08, "percentile": 0.2921618210173643 }, "sha256": "33bf593d24e5adb6d9c029e137f6eca2ed15b01bc269217c0c9e52405083af9b", "simhash": "1:fea6d36de36e87b0", "word_count": 3061 }, "last_updated": "2023-07-14T20:36:09.526568+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TABITHA POLLOCK, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOMER\ndelivered the opinion of the court:\nThe defendant, Tabitha Pollock, was convicted of first degree murder (720 ILCS 5/9 \u2014 1 (West 1996)) and sentenced to 36 years in prison. On appeal, she contends: (1) the State failed to prove beyond a reasonable doubt that she knew that her boyfriend was beating her daughter; (2) the State deprived her of a fair trial when, during closing arguments, it vouched for the credibility of one of its witnesses and misstated the law on accountability; (3) the trial court erred in giving nonpattern jury instructions on accountability; (4) the trial court erred in admitting evidence of the defendant\u2019s prior bad acts; and (5) the truth-in-sentencing law is unconstitutional. We modify the defendant\u2019s sentence to allow her to receive day-for-day good-time credit and in all other respects affirm the judgment of the circuit court.\nFACTS\nIn the early morning hours of October 10, 1995, emergency medical personnel responded to a call from the home in which the defendant lived with her boyfriend, Scott English. Also residing in the home were her three children, English\u2019s parents, the girlfriend of English\u2019s brother and the girlfriend\u2019s child. When the emergency crew arrived at the home, they found the victim, the defendant\u2019s 3^-year-old daughter, lying on the floor of an upstairs bedroom. The defendant was attempting to perform cardio-pulmonary resuscitation. The crew transported the child and the defendant to the hospital.\nAt the hospital, medical personnel attempted for an hour to revive the victim. When their efforts proved fruitless, the treating physician informed the defendant that her daughter was dead. The treating physician testified at the defendant\u2019s trial that he had sutured a laceration on the victim\u2019s head a few days before her death. At that time, he did not suspect child abuse because injuries of that nature are not uncommon in small children. However, when the victim was brought in on the morning of her death, the doctor suspected foul play and instructed the attending nurse to document the victim\u2019s injuries.\nThe attending nurse testified that she noted 11 injuries, 10 of which could have indicated child abuse. The victim had bruises on her back, her left elbow, her left buttock, her left ribcage and her right hip.\nThe forensic pathologist who conducted the autopsy on the victim determined the cause of death to be blunt force trauma and asphyxiation. The doctor observed over 100 bruises in various stages of healing on the victim\u2019s body, including bruises on her chest and abdomen which would have been inflicted in the hours before her death. The doctor also noted curved claw marks on the victim\u2019s chest that exactly matched the victim\u2019s left fingernails. He testified that these wounds are typically found when a victim has been strangled and, in the moments preceding death, has used her fingernails to claw at the object that is strangling her. The doctor found small ruptures of the blood vessels in the victim\u2019s face, which suggested that something had been held over the victim\u2019s nose and mouth.\nWhen the doctor conducted her internal examination of the victim, she found 13 distinct hemorrhagic injuries to the victim\u2019s skull. Eight of these injuries were three to four days old. The internal examination also revealed more extensive bruising of the victim\u2019s chest, abdomen and head.\nThe defendant\u2019s boyfriend gave a statement to police in which he admitted striking the victim in the head shortly before she was found dead. He told the police that the victim had recently begun winding herself up in her blanket as she slept. On that night, the boyfriend found the victim asleep with her blanket wound around her. He struck her in the back of the head to make her stop winding herself in the blanket. When he checked on the victim a little while later, he noticed that she was not breathing and carried her into the room he shared with the defendant.\nWhen she was questioned by police, the defendant denied ever striking the victim and denied knowing about any abuse of the victim. She did tell the police that she had noticed injuries to the children in the weeks preceding the victim\u2019s, death. She noticed marks on her son\u2019s neck, and her son told her that her boyfriend had choked him. The boy also told her that he had been injured when playing with friends. Her boyfriend said he mistakenly grabbed the boy around the neck when the boy began to fall while in the bathtub. The defendant also told the police about a similar incident in the bathtub which resulted in injuries to the victim. According to the defendant, her boyfriend told her that the victim attempted to get into the bathtub and stepped on the youngest child. When the boyfriend pushed the victim off the youngest child, the victim slipped and fell and was bruised.\nThe defendant told police of other incidents when she found bruises on the victim\u2019s face and believed they were caused by falls from the bed. Once, her boyfriend told her that the victim had been injured when she \u201cfell\u201d down the stairs and into a chair at the bottom. Days before the victim\u2019s death, the defendant returned home to find that the victim had supposedly fallen off a stool while trying to reach the toothpaste on the bathroom counter. Her fall on that occasion resulted in stitches to her head.\nIn her statement, the defendant said that she and her boyfriend split the task of disciplining the children evenly. She knew that the victim believed that her boyfriend was \u201cmean,\u201d and she knew that her boyfriend thought that the victim was a \u201cmomma\u2019s girl.\u201d\nAccording to the defendant, her boyfriend had arrived home at 12:40 a.m. on the morning of the victim\u2019s death. The children were in bed. Her boyfriend checked on the children once and returned to tell the defendant that the victim had been wrapped up in her blankets but he had fixed them. Later, her boyfriend checked on the children again. Finally, around 5 a.m., her boyfriend brought the victim into their bedroom, telling the defendant that something was wrong with the victim.\nThe defendant\u2019s mother and sister testified that they had seen bruises on the defendant\u2019s children after the defendant moved in with her boyfriend. The children told stories about the defendant\u2019s boyfriend choking them, but the adults dismissed the stories. Neither the defendant\u2019s mother nor sister suspected that the defendant\u2019s boyfriend was abusing the victim.\nA friend of the defendant, and a babysitter for the children, testified that she had observed bruises on the victim after the defendant moved in with her boyfriend. On one occasion, the victim told the babysitter that the defendant\u2019s boyfriend had choked her. The victim illustrated her claim by placing her hands around her throat. The defendant was there and saw and heard the victim\u2019s claim. However, the defendant dismissed the allegations because of the victim\u2019s age.\nSeveral witnesses for the State testified that the defendant did not keep her children, or their clothes, clean. Some of the witnesses had reported the defendant to the Department of Children and Family Services (Department) for this reason. The Department, however, had never found any evidence of abuse regarding the defendant\u2019s children.\nOne witness testified that on one occasion the defendant instructed her two oldest children, the victim and her older brother, to walk alone along the Mississippi River late at night in order to retrieve an item that had been left on the bank. This witness further testified that the defendant had allowed the victim to climb a bookcase which nearly fell over on top of the victim. Someone other than the defendant had to rescue the victim before she was hurt.\nMany witnesses testified that the defendant was a caring mother who never abused her children. These witnesses testified that the children never showed signs of physical abuse.\nDuring closing arguments, the State asked the jury to remember how the defendant\u2019s friend and babysitter had looked when she took the witness stand. The State characterized the look as \u201capologetic\u201d and argued that the babysitter knew she would be getting the defendant into trouble with her testimony. The State further argued that the babysitter had no reason to come into court and lie about her friend. The State touched on the law of accountability in its argument as well. It noted that the law of accountability \u201chas expanded\u201d to include cases in which a parent fails to protect a child from an abuser.\nAt the conclusion of the trial, the court gave the standard accountability jury instruction. Illinois Pattern Jury Instructions, Criminal, No. 5.03 (3d ed. 1992) (hereafter IPI Criminal 3d). That instruction provides that \u201c[a] person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of the offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.\u201d IPI Criminal 3d No. 5.03.\nOver the defendant\u2019s objection, the trial judge also instructed the jury using three nonpattern instructions. These instructions were based upon the decision in People v. Stanciel, 153 Ill. 2d 218, 606 N.E.2d 1201 (1992). State\u2019s instruction No. 10 stated: \u201cA parent has a legal duty to aid a small child if the parent knows or should know about a danger to the child and the parent has the physical ability to protect the child. Criminal conduct may arise not only by overt acts, but by an omission to act where there is a legal duty to do so.\u201d State\u2019s instruction No. 11 read: \u201cActual presence at the commission of a crime is not a requirement of accountability.\u201d Finally, the court gave State\u2019s instruction No. 13: \u201cFor accountability, intent to promote or facilitate crime may be shown by evidence that the defendant shared a criminal intent of the principal or evidence that there was a common criminal design.\u201d\nThe jury deliberated and returned a verdict of \u201cguilty.\u201d After a sentencing hearing, the trial judge sentenced the defendant to 35 years in prison. Pursuant to the truth-in-sentencing law, the defendant was required to serve 100% of her sentence.\nANALYSIS\nReasonable Doubt\nThe defendant argues first on appeal that the State failed to prove beyond a reasonable doubt that she knew or should have known that her boyfriend was abusing her daughter. In support of her argument, she notes that many of the witnesses who testified at trial denied any knowledge of the abuse of the victim.\nIn assessing whether the defendant has been proven guilty beyond a reasonable doubt, the relevant question is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could; have found the essential elements beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267 (1985). The reviewing court may not substitute its judgment for that of the trier of fact with regard to the weight of the evidence and the credibility of the witnesses and should not reverse a conviction unless the evidence is so improbable, unreasonable or unsatisfactory as to justify a reasonable doubt concerning the defendant\u2019s guilt. People v. Singletary, 237 Ill. App. 3d 503, 604 N.E.2d 1009 (1992).\nHere, the defendant herself told the police that on many occasions when her boyfriend had been left with the children, she returned home to find them bruised. These injuries were always attributed to \u201caccidents.\u201d The defendant\u2019s boyfriend \u201caccidentally\u201d grabbed her son around the neck. He \u201caccidentally\u201d pushed the victim down in the bathtub. The victim \u201caccidentally\u201d fell down the stairs, in the bathroom while reaching for toothpaste, and off the bed. Moreover, the defendant acknowledged that both the victim and the victim\u2019s older brother had told the defendant that her boyfriend had choked them. The victim even illustrated her allegation by placing her hands on her throat. In this instance, the mysterious injuries to the children and their complaints against the defendant\u2019s boyfriend should have told the defendant that her boyfriend was abusing her children. She could not turn a blind eye and a deaf ear and then hope to avoid accountability when her boyfriend\u2019s abuse turned fatal. We hold that the evidence was not so improbable, unreasonable or unsatisfactory as to justify a reasonable doubt concerning the defendant\u2019s guilt.\nClosing Argument\nNext, the defendant maintains that the State deprived her of a fair trial when it vouched for the credibility of its witness and misstated the law of accountability in its closing argument.\nIt is well settled that the State has wide latitude in making its closing remarks. People v. Barkauskas, 147 Ill. App. 3d 360, 497 N.E.2d 1183 (1986). The State\u2019s argument must be examined in its entirety and the complained-of comments placed in their proper context. People v. Morgan, 142 Ill. 2d 410, 568 N.E.2d 755 (1991). Improper remarks will not merit reversal unless they result in substantial prejudice to the defendant. People v. Thompkins, 121 Ill. 2d 401, 521 N.E.2d 38 (1988). Such remarks must constitute a material factor in the defendant\u2019s conviction without which the jury might have reached a different result. People v. Lyles, 106 Ill. 2d 373, 478 N.E.2d 291 (1985). Moreover, improper comment by counsel may be cured by providing proper instructions of law. People v. Hobley, 159 Ill. 2d 272, 637 N.E.2d 992 (1994).\nIn the instant case, the trial judge properly instructed the jury about its role in determining the credibility of the witnesses and the amount of weight to place upon closing arguments. The State\u2019s closing argument, viewed in its entirety, did not result in substantial prejudice to the defendant. Thus, we hold that the defendant was not deprived of a fair trial by the State\u2019s closing argument.\nJury Instructions\nThird, the defendant contends that the trial court erred in giving nonpattern jury instructions.\nIt is well settled that a trial judge has the discretion to give nonpattern jury instructions. People v. Hudson, 157 Ill. 2d 401, 626 N.E.2d 161 (1993). A pattern instruction is to be used, unless the court determines that it does not accurately state the law, in which case the instruction given on that subject should be simple brief, impartial, and free from argument. 134 Ill. 2d R. 451(a).\nHere, the trial court gave IPI Criminal 3d No. 5.03, the pattern accountability jury instruction. Over the defendant\u2019s objections, the court also gave three non-IPI instructions on accountability tendered by the State.\nWe have carefully examined the instructions given in this case. We conclude that, when considered together, the accountability instructions correctly state the law applicable to this case. See People v. Tracy, 291 Ill. App. 3d 145, 154, 683 N.E.2d 182, 188 (1997).\nThe trial court was justified in determining that IPI Criminal 3d No. 5.03 was inadequate to inform the jury of the defendant\u2019s legal duty, as a parent, to protect her child from preventable crimes. The terms \u201csolicits,\u201d \u201caids,\u201d \u201cabets,\u201d and \u201cagrees [or attempts] to aid\u201d do not naturally lend themselves to a determination of parental accountability as that concept was developed in Stanciel, 153 Ill. 2d 218, 606 N.E.2d 1201. On the other hand, the three non-IPI instructions given in this case and taken from the Stanciel decision, in conjunction with IPI Criminal 3d No. 5.03, accurately state the law of this case in a manner that is simple, brief, impartial and free from argument. Consequently, we hold that the trial court did not abuse its discretion in giving the nonpattern instructions.\nPrior Bad Acts\nFourth, the defendant argues that she was deprived of a fair trial when the judge allowed the State to introduce evidence of her prior bad acts. Specifically, she challenges the testimony with regard to her sending her children to retrieve an item left along the Mississippi River, failing to rescue the victim when she climbed on a bookcase and failing to keep the children and their clothes clean.\nInitially, we note that the defendant has waived this claim because she failed to raise it in a posttrial motion. See People v. Williams, 181 Ill. 2d 297, 692 N.E.2d 1109 (1998). Once an alleged error has been waived, we can review it only if the error constitutes plain error. 134 Ill. 2d R. 615(a). Plain error is error of such magnitude that it denied the defendant a fair trial or error in a trial where the evidence is closely balanced. People v. Whitehead, 116 Ill. 2d 425, 508 N.E.2d 687 (1987).\nIn the instant case, the evidence was not closely balanced nor was the defendant denied a fair trial. The defendant, by her own testimony, established that she should have known that her boyfriend was abusing her children, and the victim in particular. Moreover, she was allowed to call many other witnesses who testified that she was a caring mother who never abused her children. Accordingly, we hold that the defendant has waived her claims in this regard and the plain error rule does not apply.\nSentencing\nFinally, the defendant claims that the truth-in-sentencing law is unconstitutional.\nThe Illinois Supreme Court recently held that Public Act 89\u2014 404 (Pub. Act 89 \u2014 404, eff. August 20, 1995 (amending 730 ILCS 5/3\u2014 6 \u2014 3 (West 1994)), which contained the truth-in-sentencing law, was adopted in violation of the single-subject rule contained in the Illinois Constitution. People v. Reedy, 186 Ill. 2d 1 (1999). As a consequence, the court held that Public Act 89 \u2014 404 was unconstitutional in its entirety. In accordance with Reedy, therefore, we hold that the defendant is eligible to receive the good-conduct credit that she would have been eligible to receive prior to the enactment of Public Act 89 \u2014 404. We order all contrary references stricken from the sentencing order.\nConclusion\nFor the foregoing reasons, the judgment of the circuit court of Henry County is affirmed as modified.\nAffirmed as modified.\nHOLDRIDGE, EJ., and KOEHLER, J., concur.", "type": "majority", "author": "JUSTICE HOMER" } ], "attorneys": [ "Tracy McGonigle, of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Ted J. Hamer, State\u2019s Attorney, of Cambridge (John X. Breslin and Rita Kennedy Mertel, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TABITHA POLLOCK, Defendant-Appellant.\nThird District\nNo. 3\u201496\u20141077\nOpinion filed December 10, 1999.\nTracy McGonigle, of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nTed J. Hamer, State\u2019s Attorney, of Cambridge (John X. Breslin and Rita Kennedy Mertel, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0400-01", "first_page_order": 420, "last_page_order": 428 }