No. 3--04--0551

_____________________________________________________________________ 

Filed November 6, 2006. 

 

IN THE APPELLATE COURT OF ILLINOIS 

 THIRD DISTRICT 

 A.D., 2006 

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court 

) of the 10th Judicial Circuit, 

Plaintiff-Appellee, ) Peoria County, Illinois 

) 

v. ) No. 99-CF-91 

) 

DONNELL L. SANDERS, ) Honorable 

) Michael Brandt, 

Defendant-Appellant. ) Judge, Presiding. 

______________________________________________________________________ 

JUSTICE CARTER delivered the OPINION of the court: 

_____________________________________________________________________ 

After a jury trial, the defendant was convicted of first-degree murder (720 ILCS 5/9-

1(a)(2) West 1999)) and sentenced to 75 years= imprisonment. On direct appeal, the 

conviction was reversed and the case was remanded for a new trial. After a second jury 

trial, the defendant was again convicted of first degree murder and again sentenced to 75 

years= imprisonment. The defendant appeals a second time. In this, the direct appeal from 

the defendant=s second jury-trial conviction, the defendant argues: (1) that the trial court 

committed plain error in providing an inadequate and misleading response to a jury 

question; (2) that defense counsel provided ineffective assistance of counsel in regards to 

the jury question; and (3) that the trial court erred in admitting the prior testimony of one of 

the plaintiff=s expert opinion witnesses who had testified at the first trial but had died before 

the second trial. We affirm. 
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FACTS 

In February of 1999, the defendant was charged with the first degree murder of 

twenty-three month old Kareena Davis (the victim). The indictment alleged that the 

defendant violently shook the victim and struck the victim=s head, knowing that such acts 

created a strong probability of great bodily harm to the victim and thereby causing the 

death of the victim. The case proceeded to a jury trial in August of 2000. The defendant 

was found guilty and was subsequently sentenced to 75 years= imprisonment. The 

conviction was reversed on direct appeal and the case was remanded for a new trial. A 

second jury trial was held in May of 2004. 

The evidence presented at the second jury trial showed that the victim was fatally 

injured while her mother was at work and the defendant was watching her. The defendant 

did not call 911 immediately. The autopsy showed that the victim had marks of bruising 

around her chin and her arms, an impact site on the back of her head, swelling of the brain, 

a subdural hemorrhage that matched the impact site, and massive retinal hemorrhages. 

The pathologist that conducted the autopsy concluded that the victim died from blunt force 

injuries to the head. The State presented the testimony of the emergency room doctor that 

treated the victim, the pathologist that conducted the autopsy, and two expert opinion 

witnesses to support its theory of the case--that the victim died as a result of shaken impact 

syndrome.1

 That is, that the defendant had shaken the victim and that during the shaking, 

the victim=s head had impacted an object causing the victim=s death. 

 1

The testimony of one of the State=s expert opinion witnesses was presented in rebuttal. 
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Over the defendant=s objection, the testimony of one of the State=s expert opinion 

witnesses, Dr. Robert Kirschener, was presented to the jury in the form of a deposition.2

 

Kirschener had testified for the State at the defendant=s first jury trial but had died before 

the second trial. During his testimony in the first trial, Kirschener was cross-examined by 

defense counsel about the existence of an opinion in the medical community contrary to his 

own. Kirschener acknowledged that such an opinion existed and stated that Dr. John 

Plunkett was one of those people that held a contrary opinion to his own. 

The defense=s theory of the case was that the victim died, not as a result of shaken 

impact syndrome, but as the result of an accident from falling down the stairs. The 

defendant testified at the second trial that he found the victim at the bottom of the stairs 

after hearing what he described as a thump sound. The defendant denied that he had 

shaken or struck the victim. Defense counsel presented the testimony of an expert opinion 

witness, Dr. Plunkett, who testified in support of the defense=s theory of accidental death. 

Dr. Plunkett had published an article entitled, AFatal Pediatric Head Injuries Caused By 

Short Distance Falls@ in the American Journal of Forensic & Medical Pathology in 2001 

(after the first jury trial but before the second jury trial). 

Prior to deliberating, the jury was instructed on the law, including the elements of 

first degree murder. That instruction provided as follows: 

 2

The testimony of Dr. Kirschener from the first trial was redacted to exclude a comment 

that this court found to be improper in the first direct appeal and to exclude comments regarding 

an expert witness who was not going to testify in the second trial. 

ATo sustain the charge of First Degree Murder, the State must 
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prove the following propositions: (f)irst (p)roposition: (t)hat the 

defendant performed the acts which caused the death of 

Kareena Davis; and (s)econd (p)roposition: (t)hat when the 

defendant did so, he knew that his acts created a strong 

probability of death or great bodily harm to Kareena Davis. If 

you find from your consideration of all the evidence that each 

one of these propositions has been proved beyond a 

reasonable doubt, you should find the defendant guilty. If you 

find from your consideration of all the evidence that any one of 

these propositions has not been proved beyond a reasonable 

doubt, you should find the defendant not guilty.@ 

During the course of deliberations, the jury sent the following question to the judge: 

AQuestion on the second proposition that when the defendant 

did so, is the basis for our decision whether he knew he could 

or did he have the intent to create a strong probability of death 

or great bodily harm...? Is intent required?@

After receiving the question, with the defendant present, the trial judge consulted 

with the attorneys for both sides. The following conversation ensued: 

A[THE COURT:] On the record in 99 CF 91, defendant Mr. Sanders 

present, all counsel present. The jury had a question, and it is in writing and 

the court has shared the question with counsel for both sides. Any input from 

the State? 

MS. MERMELSTEIN: Well the State believes that the answer 
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is intent is not required, not by the way it was charged or not by 

the issues instruction. 

THE COURT: And do you wish the Court to answer that 

accordingly? 

MS. MERMELSTEIN: Yes. 

THE COURT: Input from the defense? 

MR. FLANAGAN: I believe the instructions should remain as 

they are, your Honor. 

THE COURT: All right. They are--I don=t think anyone is 

suggesting any further instruction. The Court will answer the 

question. It is a simple question, is intent required, and the 

answer simply is no. But I=ll also add in there >please follow all 

jury instructions=. We=ll give this to the bailiff, and please tell 

the jury to retain this so it=s part of the record. As far as the 

hour, the Court is of the reasoning that the jury should be sent 

home, but we=ll let them digest this here at least. Give this to 

the foreperson. 

THE BAILIFF: Yes, sir.@

After discussing the matter with both parties, the trial court responded in writing to 

the jury question as follows: ANo, please follow all jury instructions.@

The defendant was subsequently found guilty of first degree murder. The defendant 

filed a motion for new trial alleging, among other things, that the trial court erred in its 

response to the jury=s question regarding Aintent@ and that the trial court erred in admitted 
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the prior testimony of Dr. Kirschener. The trial court denied the motion and again 

sentenced the defendant to 75 years= imprisonment. This appeal followed. 

ANALYSIS 

As his first point of contention on appeal, the defendant argues that the trial judge 

erred in his response to the jury question. The defendant characterizes the jury=s question 

as one concerning the mental state Aknowing@ and asserts that in response to the question, 

the trial court should have given the jury the pattern instruction defining knowledge (IPI 

Criminal No. 5.01B). The defendant argues further that the response that was given was 

inadequate and potentially misleading. 

Generally speaking, a jury need not be instructed on the term knowingly because 

that term has a plain meaning within the jury=s common knowledge. People v. Powell, 159 

Ill. App. 3d 1005, 1013, 512 N.E. 2d 1364, 1370 (1987). However, the trial court has a duty 

to instruct the jury further when clarification is requested, when the original instructions are 

insufficient or when the jurors are manifestly confused. People v. Reid, 136 Ill. 2d 27, 39, 

554 N.E. 2d 174, 179 (1990). In responding to a jury question, the trial court must do so 

with specificity and accuracy. People v. Shaw, 186 Ill. 2d 301, 320, 713 N.E. 2d 1161, 1172 

(1998). The trial court has discretion in determining how best to respond to a jury question. 

See Reid, 136 Ill. 2d at 38-39, 554 N.E. 2d at 179. We will review any such response for 

an abuse of discretion. See Reid, 136 Ill. 2d at 38-39, 554 N.E. 2d at 179. 

Before we reach the merits of this issue, we must first determine whether the issue 

has been waived. It is well settled that to preserve an issue for appeal, a defendant must 

object at trial and must include the issue in a post-trial motion. People v. Enoch, 122 Ill.2d 
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176, 186, 522 N.E.2d 1124, 1130 (1988). The defendant acknowledges that the issue was 

not properly preserved--defense counsel did not make a contemporaneous objection to the 

response and acquiesced in the giving of the response--but argues that we should reach 

the merits of this issue as plain error. 

The plain-error doctrine is a very narrow exception to the waiver rule and allows a 

reviewing court to reach a forfeited error in two limited circumstances: (1) where the 

evidence is close, regardless of the seriousness of the error, or (2) where the error is 

serious, regardless of the closeness of the evidence. People v. Herron, 215 Ill. 2d 167, 

177-187, 830 N.E. 2d 467, 474-479 (2005). Before the plain error doctrine may be applied, 

however, it must first be shown that an error has occurred. People v. Wade, 131 Ill.2d 370, 

376, 546 N.E.2d 553, 555 (1989). The burden is on the defendant. Herron, 215 Ill. 2d at 

187, 830 N.E. 2d at 480. 

In the present case, the defendant has failed to show that an error occurred. In 

reaching that conclusion, we note that we do not agree with the characterization given to 

the jury question by the defendant on appeal. This is not such a case as People v. Lowry, 

354 Ill. App. 3d 760, 821 N.E. 2d 649 (2004), People v. Comage, 303 Ill. App. 3d 269, 709 

N.E. 2d 244 (1999), or People v. Brouder, 168 Ill. App. 3d 938, 523 N.E. 2d 100 (1988), all 

cited by the defendant, where the jury specifically requested further instruction on the word 

Aknowingly@. To the contrary, the jury=s question in the present case was clear. The jury 

wanted to know whether intent was required. The trial judge=s response--that intent was 

not required and that the jury should follow all of the instructions that they had already been 

given--was equally clear and went no further than the question that was posed. Based on 

the question that was asked, the trial judge had no duty to instruct the jury further on the 
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term Aknowingly@. The response that was given was appropriate and did not constitute an 

abuse of discretion. Because no error occurred, the plain error doctrine does not apply and 

we must conclude that the issue has been waived. 

As his second point of contention on appeal, the defendant argues that his trial 

counsel was ineffective for failing to offer the pattern jury instruction defining knowledge in 

response to the jury=s question and in acquiescing in the trial court=s response to the 

question. We review such claims de novo. See People v. Davis, 353 Ill. App. 3d 790, 794, 

819 N.E. 2d 1195, 1200 (2004). A claim of ineffective assistance of counsel is analyzed 

under the two-pronged, performance-prejudice test established in Strickland v. Washington, 

466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To prevail on an ineffectiveassistance claim, a defendant must show that: (1) counsel's performance was deficient, 

and (2) the deficient performance prejudiced the defendant such that he was deprived of a 

fair trial. People v. Patterson, 217 Ill. 2d 407, 438, 841 N.E. 2d 889, 907 (2005). The 

failure to satisfy either prong of the Strickland test precludes a finding of ineffective 

assistance of counsel. Patterson, 217 Ill. 2d at 438, 841 N.E. 2d at 907. Applying that 

standard in the present case, we find that defense counsel=s performance was not deficient. 

 As noted above, we have already determined that the jury=s question did not require the 

trial judge to provide the jury with a definition of the term Aknowingly@ and that the trial 

judge=s response to the question was appropriate. Defense counsel, therefore, was not 

deficient for acquiescing in that response or for failing to tender the pattern jury instruction 

defining knowledge. Having failed to establish deficient performance, defendant cannot 

show that his trial counsel was ineffective. 

As his final point of contention on appeal, the defendant argues that the trial court 
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erred in admitting the prior testimony of Dr. Kirschener. Citing Crawford v. Washington, 541 

U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the defendant asserts that the 

admission of Dr. Kirschener=s testimony violated the defendant=s rights under the 

confrontation clause because the defendant did not have the opportunity to cross examine 

Dr. Kirschener about recent scholarship, namely a paper by Dr. Plunkett (defendant=s 

expert opinion witness at trial) which was published after the first trial and was contrary to 

Dr. Kirschener=s opinion testimony. We review the trial court=s decision on the admissibility 

of evidence for an abuse of discretion. People v. Purcell, 364 Ill. App. 3d 283, 846 N.E. 2d 

203, 211-212 (2006). 

The sixth amendment's confrontation clause, which applies to both federal and state 

prosecutions, guarantees the accused the right to be confronted with the witnesses against 

him. Patterson, 217 Ill. 2d at 422-423, 841 N.E. 2d at 899. In Crawford, the Supreme 

Court reinterpreted the confrontation clause and held that the testimonial hearsay 

statements of a witness who is unavailable at trial may not be admitted against a criminal 

defendant unless the defendant had a prior opportunity for cross-examination. Patterson, 

217 Ill. 2d at 423, 841 N.E. 2d at 899 (citing Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 

124 S. Ct. at 1374). 

The present defendant acknowledges that he had the opportunity to cross examine 

Dr. Kirschener at the first trial when the statement was made but argues that he was not 

given an opportunity for full cross examination because the paper by Dr. Plunkett had not 

been published until after the first trial. Thus, the defendant could not cross examine Dr. 

Kirschener about the paper at the time the original statement was made. We find this 

argument to be unpersuasive. 
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When the prior statement was given, the defendant had a full opportunity to cross 

examine Dr. Kirschener about the contrary opinion of Dr. Plunkett--the same contrary 

opinion that was later published. Crawford guarantees nothing more than that. See

Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. If allowed to stand, the 

defendant=s argument would prevent the admission of a prior statement, which is otherwise 

admissible under Crawford, merely because there had been some further development 

after the prior statement had been made. We do not believe that that is what was intended 

by the Crawford court. Thus, we conclude that the prior statement of Dr. Kirschener was 

properly admitted. 

 For the foregoing reasons, we affirm the judgment of the circuit court of Peoria 

County convicting the defendant of first-degree murder. 

Affirmed. 

SCHMIDT, P. J. and SLATER, J. concurring.