People v. Alvidrez

Illinois Official Reports

Appellate Court

People v. Alvidrez, 2014 IL App (1st) 121740

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption JOSE ALVIDREZ, Defendant-Appellant.

District & No. First District, Third Division

Docket No. 1-12-1740

Filed October 15, 2014

Rehearing denied November 25, 2014

Modified upon

denial of rehearing December 3, 2014

Held The appellate court affirmed defendant’s conviction and sentence for

(Note: This syllabus the first degree murder of his 18-month-old son, who suffered a severe

constitutes no part of the head injury while in the care of defendant, since the trial court did not

opinion of the court but err in barring defendant’s expert from offering testimony with respect

has been prepared by the to the force necessary to bring about the type of injuries suffered by

Reporter of Decisions the victim and the closing and rebuttal arguments of the prosecution

for the convenience of did not prejudice the jury by improperly disparaging the character of

the reader.) defendant and his expert; however, the clerk of the circuit court was

directed to correct the mittimus and defendant’s fines and costs to

reflect the correct amount of presentence custody credit and the proper

fines and costs.

Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-3880; the

Review Hon. Mary Margaret Brosnahan, Judge, presiding.

Judgment Affirmed; mittimus corrected; fines and fees order corrected.

Counsel on Michael J. Pelletier, Alan D. Goldberg, and Emily E. Filpi, all of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Mary P. Needham, and Marci Jacobs, Assistant State’s Attorneys, of

counsel), for the People.

Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.

Justices Hyman and Mason concurred in the judgment and opinion.

OPINION

¶1 Defendant Jose Alvidrez was tried and found guilty by a jury of the first degree murder of

his 18-month-old son, Joshua Alvidrez, who died as a result of a severe head injury suffered at

home while under defendant’s care. Defendant was sentenced to 25 years’ imprisonment and

now appeals, contending the trial court erred when it precluded his expert from testifying about

the amount of force required to cause Joshua’s brain injuries. Defendant also contends that the

State engaged in prosecutorial misconduct during its closing and rebuttal arguments by

disparaging his character and that of his expert, thereby prejudicing the jury. Lastly, defendant

contends that he is entitled to additional days of presentence credit and that the trial court

improperly levied various fines, fees and costs against him. We affirm.

¶2 BACKGROUND

¶3 Defendant was charged with first degree murder after his son Joshua perished due to a

severe head injury. Defendant maintained that the child fell off an adult bed from about a

knee-high distance to the bedroom floor, but the State presented evidence demonstrating that

the extent of bruising, brain damage and retinal trauma Joshua suffered would only be

attributable to severe physical abuse and would not occur during the type of fall described by

defendant. The State’s case rested on circumstantial evidence that defendant shook and/or beat

his child to death within a one-hour time span when no other individuals were present. That

circumstantial evidence was coupled with the testimony of several treating physicians who

opined that Joshua was the victim of severe abuse that could not have possibly occurred in a

simple fall from a bed onto a carpeted hardwood floor.

¶4 Summarized at some length, testimony at trial revealed the following. Benita Jorge was

Joshua’s mother and defendant’s girlfriend. On January 10, 2008, as was her then-current

routine, she left Joshua in defendant’s care and went to work for the Cook County Youth

Outreach Services, where she oversaw screening cases coming into the system through the

child abuse hotline. Up until about October 2007, Joshua had a babysitter, but thereafter

defendant and Corina Gonzalez (girlfriend of defendant’s cousin) became his caretakers. Other

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than a small bruise on the innermost corner of Joshua’s left eye, Joshua appeared a happy and

healthy baby on January 10. On that date, Corina left for the library, leaving defendant alone in

the apartment with Joshua for about an hour. According to defendant, it was at that time that he

placed Joshua on an adult bed for a nap, propping him on pillows and covering him with a

comforter. Defendant then went across the hall to shave for some 15 minutes. Although he did

not hear anything, upon returning, he found Joshua on the floor, facedown with the blanket

covering his lower legs, but his feet still on the bed. Believing Joshua was simply “knocked

out,” defendant patted his cheeks and called his name. Joshua was unresponsive, but breathing.

¶5 Defendant testified that he then called Benita. Benita testified that defendant reported he

had “found Joshua on the floor” and “he’s not waking up.” Benita told defendant to splash

water on Joshua because “it works in the movies.” Defendant did so, taking him into the

shower, where Joshua apparently had a bowel movement, something defendant claimed to

have not noticed until days later when he again reviewed the scene. Joshua opened his eyes,

moaned, and then started to cry, according to defendant. Benita subsequently heard Joshua say

“mom” after some whimpers. At that point, she believed Joshua was not harmed. Defendant

testified that Joshua “looked fine.” Reading from the Mayo Clinic website, Benita nonetheless

instructed defendant to prevent Joshua from falling asleep in the event he had a concussion.

Defendant again placed Joshua on the bed, propping him up with pillows. Defendant testified

Joshua at that time could point to his nose, chin, and eyes. Corina, who had been gone for about

an hour, returned from the library and entered the bedroom to ask defendant to look over a

resume. As defendant was doing so, Corina gave Joshua a sippy cup, from which he drank.

¶6 Some 30 minutes later, Benita called to check on Joshua. Defendant testified that he went

to retrieve the phone and on his return to the bedroom found Joshua with eyes rolled back in his

head and stiff like a board. Defendant picked Joshua up from under his arms and shook him,

repeatedly calling his name. Defendant denied severely shaking, throwing or shoving Joshua at

that or any other time. Joshua then began to claw at his own face with one finger reaching

under his eyelid and was grinding his teeth. Defendant testified that he held Joshua’s arms to

prevent the clawing. Defendant then took Joshua into the shower again, to no beneficial effect.

At this time, Benita talked with her doctor, who instructed her to call 911. Benita called

defendant back and told him to call 911, which he did.

¶7 Joshua was unresponsive when the ambulance arrived minutes later. He was placed in a

cervical collar, securing his head and neck and transported to Cook County Stroger Hospital

(Stroger), where diagnostic testing revealed, among other traumas, an extensive subdural

hematoma (bleeding from the brain under the dura, inside the skull) requiring a craniotomy to

relieve intracranial pressure. Despite the best efforts of medical personnel, on January 18,

2008, Joshua was pronounced dead. The authorities and defendant then did a “walk-through”

at the house, with defendant describing the events of the incident. Thereafter, defendant was

arrested and charged with the present offense.

¶8 On the crucial issue of the cause of the child’s injuries and death, defendant’s trial was

mostly a quintessential battle of experts, with several treating physicians testifying that

Joshua’s injuries could not have been anything but intentionally caused, and defendant’s

retained medical pathology expert stating the injuries could have resulted from an accidental

fall as described by defendant. In particular, the State presented the testimony of Dr. Amanda

Fingarson, then a fellow doing specialty training in child abuse pediatrics at Stroger, who

examined Joshua following his craniotomy. The State also presented the testimony of

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Dr. Abayomi Akintorin, Joshua’s attending physician who for 22 years had worked as a

pediatric intensive care specialist and anesthesiologist. When Dr. Akintorin saw Joshua, the

child was in a medically induced coma and near death. Both physicians observed bruises on

Joshua’s body, arms, and chin. As part of the child’s care, Dr. Fingarson interviewed

defendant, who appeared devoid of much emotion, which she found atypical, and

Dr. Fingarson remained convinced that “the bruises were certainly not explained and were a

concerning finding in and of themselves.” That is, they were not located in places where

toddlers would naturally incur bruises.

¶9 Even though defendant claimed to have found Joshua facedown on the floor, potentially

indicative of an accidental fall, Dr. Fingarson noted that chest bruising was actually rare in

accidental trauma. She also testified that the torn vessels and extensive subdural hematoma on

Joshua’s brain were quite consistent with major trauma to the head, while being markedly

inconsistent with a shortfall (defined as a fall from a caregiver’s arms or changing table). She

explained that a child falling facedown would instinctively extend his arms to prevent a head

injury. In fact, a study of over 1 million children concluded that the likelihood of death from a

shortfall in children was less than 1 in 1 million. Dr. Fingarson opined that Joshua’s injuries

resulted from physical abuse, and in particular, abusive head trauma from shaking the child or

slamming the child against something, since there were elements of blunt impact trauma and

intracranial evidence of acceleration and deceleration injury. Dr. Akintorin likewise testified

that many of the children he encountered with traumatic brain injury suffered so because of

shaken baby syndrome. Dr. Akintorin referred the case to an ophthalmologist because he

found the reports that Joshua had fallen from a knee-high level were inconsistent with the

degree of “massive” injuries Dr. Akintorin observed. This led him to also suspect a

“non-accidental” injury or child abuse in the form of shaken baby syndrome.

¶ 10 Dr. Phillip Dray was the aforementioned ophthalmologist who examined Joshua and

confirmed that he discovered various “flame shaped” retinal hemorrhages in Joshua’s eye.

Dr. Dray opined that, given the degree of severity in the retinal hemorrhages, the cause was

either abusive head trauma or leukemia, but the latter was medically ruled out in Joshua’s case.

In his 30 years of experience, he had never seen a fall from less than 10 feet cause such an

injury, but he had seen a two-story fall cause it. He testified it would be impossible for a fall

from five feet to cause the injury and that falls off a bed or even down a short flight of stairs

would not be a competent cause for the type of bleeding inside the eye and disruption of tissue

seen in Joshua. Dr. Dray acknowledged that a very small minority, said to be roughly six

doctors, believed shortfalls could cause retinal hemorrhaging. Dr. Akintorin testified that the

traumatic head injury, together with the retinal hemorrhages, were typically present when a

child was violently shaken.

¶ 11 Dr. Mitra Kalelkar was the medical examiner for Joshua. After reviewing all the medical

records and ancillary studies and performing the autopsy, she opined that Joshua died as a

result of blunt head trauma and that the manner of death was a homicide.

¶ 12 The State rested, and the defense called Dr. John Plunkett, an expert in general pathology

and forensic pathology with some 33 years of experience. Dr. Plunkett had testified in court as

an expert over 200 times and specifically on the mechanics of infant head injury at least 75

times. While he had testified for both the prosecution and the defense as a paid expert,

Dr. Plunkett acknowledged that he primarily served as an expert for the defense. Although he

published numerous articles relating to children or infants, he had never specialized in

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pediatrics and had not treated children since 1978. In particular, he had never diagnosed a child

with shaken baby syndrome. In terms of his professional publication, there was considerable

time spent discussing a 2004 article entitled, “Biomechanical Analysis of Causes of Traumatic

Brain Injury,” which he co-authored with a biomechanical engineer. Dr. Plunkett

acknowledged that while he understood biomechanics as they related to injury evaluation, he

was not a biomechanical engineer and was not formally educated as a biomechanical engineer.

Shortly after publication of this article, Dr. Plunkett became a full-time consultant on forensic

matters in various states.

¶ 13 Dr. Plunkett testified there was no definitive way to determine whether Joshua fell from the

bed or sustained an impact injury from another individual or mechanism. In other words, the

injuries themselves could not be used to determine the cause. Nonetheless, after reviewing

Joshua’s full medical records, Dr. Plunkett opined that if Joshua had been standing on the bed

and had fallen, striking the nightstand or the floor, that could have caused the subdural

hematoma and brain swelling. This, in turn, could have led to the retinal hemorrhaging. In

support, Dr. Plunkett cited an article he wrote in 2001, wherein he conducted a study of 18

shortfalls on playground equipment (heights between about 2 feet and 8 feet) leading to

fatalities. This data was from three files from the United States Consumer Product Safety

Commission. Four out of the six children who were checked for retinal hemorrhaging had

them. Dr. Plunkett also cited several other anecdotal studies to support his opinion. He opined

that intracranial pressure from the brain swelling caused the retinal hemorrhaging. In sharp

contrast to the State’s witnesses, he opined there was no difference in how intracranial pressure

would affect a child of Joshua’s age versus an adult. Dr. Plunkett concluded that given

Joshua’s weight of 26 pounds and Dr. Plunkett’s knowledge of shaken baby syndrome, it

would not have been possible for shaking to cause Joshua’s injuries. He went so far as to testify

that Joshua would have been “decapitated” before anyone shaking the child could cause the

type of brain injury Joshua sustained.

¶ 14 Dr. Plunkett was of the opinion that the bruises on Joshua’s chin and the back of his head

were not trauma from any domestic incident, but had likely been caused by the cervical collar

placed on Joshua by the emergency responders. He also testified the bruising on Joshua’s chest

could have resulted from medical devices utilized during surgery. Dr. Plunkett opined that

given Joshua’s medical state some hours after being admitted to the hospital, he would have

been more prone to bruising. He related that Joshua’s mother had a history of easy bruising;

Benita in fact had told the medical staff that Joshua bruised easily. The bruise on Joshua’s arm

also was most likely caused by the blood pressure cuff, in Dr. Plunkett’s judgment.

¶ 15 In its rebuttal case, the State called Dr. Michelle Lorand, the attending physician at Stroger

in the department of pediatrics who was chair of the division of child protective services and

who had supervised Dr. Fingarson’s care of Joshua. She had treated “tens of thousands” of

children during her career at Stroger, including children who had fallen off beds. Dr. Lorand

specifically disagreed with Dr. Plunkett’s opinions on the etiology of Joshua’s bruising.

Contrarily, she opined the brain injuries, including torn cortical matter, were “indicative of

significant trauma.” Torn cortical matter, together with the bruises, subdural hemorrhage, and

torn and bleeding vessels, could not, in her medical opinion, have resulted simply from falling

off of a bed, even accounting for the defense theory, espoused by Dr. Plunkett, that Joshua had

been standing and may have hit his head on a piece of furniture while falling to the floor.

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¶ 16 Instead, Dr. Lorand testified, the injuries were a consequence of shaking and impact. She

testified the defense theory in fact was contrary to the literature and cited studies that analyzed

thousands of children with reported falls, without a single child suffering injuries similar to

Joshua’s. One study analyzed 800 infants with falls in the nursery/delivery room, while

another involved more than 500 children who fell out of cribs in hospitals, with none receiving

“deep brain injuries” or a subdural hemorrhage like Joshua’s. Dr. Lorand explained that while

Dr. Plunkett’s published anecdotal case report was noteworthy, the sample of children

reviewed was not statistically significant in a manner that could affect clinical

decision-making. Dr. Lorand also disagreed that intracranial pressure could cause retinal

hemorrhages because that particular medical phenomenon (Terson’s syndrome) was known to

only affect adults. Dr. Lorand further disagreed with Dr. Plunkett’s assertion regarding

decapitation. She explained that Dr. Plunkett was relying on biomechanical calculations, but

nobody had been able to credibly simulate such an experiment.

¶ 17 Following evidence and argument, the jury found defendant guilty of murder. Defendant

filed a posttrial motion challenging the verdict, which the court denied, and he was sentenced

to 25 years’ imprisonment. This timely appeal followed.

¶ 18 ANALYSIS

¶ 19 Defendant first contends the trial court impermissibly infringed on his constitutional right

to present a defense by limiting the testimony of his defense expert, Dr. Plunkett, thus

warranting reversal of defendant’s conviction and a new trial. Defendant argues this limitation

occurred when defense counsel was asking whether, in the context of this child being shaken to

the extent of causing the injuries actually inflicted, “[W]ould you expect to find any other

injuries on him?” Dr. Plunkett responded, “Well, if someone is able to hold a 26 pound baby in

front of him or her and shake him hard enough to cause brain injury, it would require you to be

able to shake him at approximately 10 or 12 cycles per second, 10 or 12–” At this point, the

State successfully objected to the clearly nonresponsive answer. The capable defense attorney

next asked, “[W]hat other injuries would you expect to find in Josh?” As alluded to above,

Dr. Plunkett testified he would expect Joshua to be “decapitated” before causing such brain

damage.

¶ 20 Despite the fact that this specific medical theory was uttered in testimony, defendant now

argues that the trial court’s ruling on the nonresponsive answer amounted to an impermissible

and prejudicial “limitation” on his expert’s testimony which deprived the jury of the chance to

consider the very theory that the witness testified about in open court. Specifically, it is urged

in this court that the witness would have offered testimony about the amount of “g forces” that

would be required to inflict this level of trauma. Notably, the State had earlier noted an

objection to Dr. Plunkett testifying about biomechanical engineering matters beyond his

medical training. More to the point, defense counsel did not attempt to ask a specific question

on that subject after the court sustained the State’s objection, and the record reveals that

defendant never made an offer of proof that could be referenced to determine in what way this

examination was hindered.

¶ 21 In the absence of an offer of proof, defendant instead leans on his posttrial motion and

Dr. Plunkett’s appended report, in which he stated, “[a] person ‘shaking’ a 26-pound toddler

would have to exert a force of 260 pounds to the chest or arms in order to accelerate the head at

10g’s, an acceleration well below any established threshold for SDH or traumatic brain

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damage.” (Emphasis in original.) Defendant argues this statement from his expert’s pretrial

report somehow constitutes an offer of proof and testimony rebutting that of Dr. Dray, who

opined that the alleged perpetrators of shaken baby syndrome are “sufficiently strong” to

produce the brain and eye injury.

¶ 22 Put bluntly, this legal construction is both disingenuous and nonsensical. First, as the State

asserts, defendant failed to timely and properly object to this so-called limitation of his expert’s

testimony because he did not contemporaneously complain of the alleged error, and he did not

request a side bar or submit a timely offer of proof. Instead, counsel proceeded in his

examination and nonetheless got the gravamen of his theory (minus the “g-force” statistics) in

front of the jury for its consideration. Were there any actual error, the trial court was deprived

of an opportunity to cure it, and this issue has been waived. See People v. Enoch, 122 Ill. 2d

176, 186 (1988) (requiring both an objection at trial and posttrial); see also People v. Andrews,

146 Ill. 2d 413, 421 (1992) (“The failure to make an adequate offer of proof results in a waiver

of the issue on appeal.”).

¶ 23 Even more damning to defendant’s argument is the fact that Dr. Plunkett acknowledged

that he was not a biomechanical engineer and had no formal education in biomechanical

engineering. His main familiarity with the subject came via his association with his co-author

(a trained biomechanical engineer) of the above-referenced published article that seems to

have launched his career as a forensic consultant. Thus, he was in no way qualified to render

the opinion that defense counsel never asked him for in open court, despite the fact that it may

have been in his written report. When the court qualified Dr. Plunkett as an expert in general

pathology and forensic pathology, defense counsel did not contest that characterization or seek

to further qualify his expert. Counsel thus again waived any complaint regarding limiting

Dr. Plunkett’s testimony on a subject matter in which Dr. Plunkett clearly held no expertise. It

is axiomatic that a trial court’s evidentiary rulings will not be disturbed absent a clear abuse of

discretion. People v. Wheeler, 226 Ill. 2d 92, 132 (2007). The subject matter here was couched

in biomechanical terms that he was clearly not qualified to render and would not have assisted

the jury in understanding the evidence or made the question of defendant’s guilt more or less

probable. See Wheeler, 226 Ill. 2d at 132 (noting rule); Thompson v. Gordon, 221 Ill. 2d 414,

429 (2006) (noting rule); see also People v. Enis, 139 Ill. 2d 264, 285 (1990) (noting the expert

testimony would not have contributed at trial).

¶ 24 This is because Dr. Plunkett testified that based on Joshua’s weight and his knowledge of

shaken baby syndrome, it would not have been possible for defendant to cause Joshua’s

injuries. To support this opinion, he cited reconstruction of real life events (as with the

automotive industry) and experimental studies, where the stretch of the brain was studied.

Significantly, he opined that to cause the injuries Joshua sustained, defendant would have had

to shake Joshua to such a degree that he would have been decapitated. Not to put too fine a

point on it, one struggles to imagine that the thought of decapitation was somehow insufficient

and that the omission of g-force statistics prevented this defendant from presenting his defense.

The jury considered this dramatic medical theory and apparently rejected it. Based on the

foregoing, we conclude there was no error and, as more fully explained below, no plain error in

this case.

¶ 25 Defendant next argues that the prosecutor made inaccurate and improper remarks during

the State’s closing argument and the cumulative effect of the remarks denied him a fair trial. At

the outset, we note that defendant failed to object to the issues he now raises. Objections to

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closing argument must be made at trial to be preserved for review. People v. Coulter, 230 Ill.

App. 3d 209, 229 (1992). Raising some or all the issues in a posttrial motion is insufficient to

preserve them for appeal. See People v. Naylor, 229 Ill. 2d 584, 592 (2008) (both a trial

objection and a written posttrial motion raising the issue are required). Nonetheless, defendant

argues the alleged errors constitute plain error, mandating reversal. This narrow and limited

exception to the general rule of procedural default allows a reviewing court to consider

unpreserved error where the evidence is closely balanced, such that the error threatened to tip

the scales of justice against the defendant, or where the error is so serious that it challenged the

integrity of the judicial process. Id. at 593. “There can be no plain error if there was no error at

all ***.” People v. Wilson, 404 Ill. App. 3d 244, 247 (2010).

¶ 26 Turning to the substance of defendant’s claim, it is well settled that a prosecutor is allowed

a great deal of latitude in closing argument and has the right to comment upon the evidence

presented and upon reasonable inferences arising therefrom, even if such inferences are

unfavorable to the defendant. People v. Hudson, 157 Ill. 2d 401, 441 (1993). The prosecutor

may also respond to comments by defense counsel that clearly invite a response. People v.

Willis, 2013 IL App (1st) 110233, ¶ 102. However, a prosecutor must refrain from making

improper, prejudicial comments and arguments. Hudson, 157 Ill. 2d at 441. Even if a

prosecutor’s closing remarks are improper, they do not constitute reversible error unless they

result in substantial prejudice to the defendant such that absent those remarks the verdict would

have been different. Id. While it is not clear whether the appropriate standard of review for this

issue is de novo or abuse of discretion, we need not resolve the matter, because our holding in

this case would be the same under either standard. People v. Luna, 2013 IL App (1st) 072253,

¶ 125. That is, viewing the remarks in the context of the entire closing argument, as we must,

we conclude there was no reversible error committed here. See People v. Nicholas, 218 Ill. 2d

104, 122 (2005).

¶ 27 Defendant specifically contends the prosecutor erroneously accused defendant of

testifying falsely regarding which side of the bed his son fell from.1 There is some merit in this

suggestion. During trial, defendant testified his son fell off the right side of the bed, even

though the evidence technician had taken a photograph (which the State submitted into

evidence) of the left side of the bed. During closing, the prosecutor asked rhetorically whether

the evidence technician would have photographed the wrong side of the bed during the

walkthrough with defendant, then asserted “defendant can’t even keep what side of the bed [his

son fell off of] straight.” Contrary to the prosecutor’s assertion, during posttrial motion

proceedings, the parties stipulated that the evidence technician had in fact taken the

photograph three days before the walkthrough. There was no evidence that defendant had lied

in that regard. The trial court rejected defendant’s posttrial argument that the State

intentionally misled the jury, finding the prosecutor’s comment was a reasonable inference at

the time, that it was unintentional error, and that, regardless, the argument would not have

swayed the jury one way or the other.

1

Defendant contends he lodged a contemporaneous objection to this line of argument, and thus

preserved the issue, but we disagree. The record reveals that defense counsel objected to the

prosecutor’s demonstration of how defendant would have had to reach over Joshua. This demonstration

was not identified in the record. Defendant’s assertion is belied by the record.

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¶ 28 We note our disagreement with the trial court’s suggestion in this regard, insofar as the

argument was actually an unfair inference from the evidence. There was no testimony from the

police or evidence technicians regarding how defendant described the scene when Joshua

allegedly fell or regarding why the technician apparently chose only to photograph that

particular side of the bed. Thus, the argument was based on an assumption and not the trial

evidence. The posttrial proceedings later confirmed this.

¶ 29 Nonetheless, the prosecutor’s comment, while improper, does not constitute reversible

error for several reasons. First, rather than objecting, defendant waited and used the

opportunity to respond to the prosecutor’s misstatement in his own closing argument. One can

easily conclude that this was a strategic choice on the part of defense counsel, because he

masterfully wove it into his overall argument that the prosecution was inventing facts. See

People v. Beard, 356 Ill. App. 3d 236, 244 (2005) (the decision of whether to object to closing

argument is a matter of trial strategy). In this way, one could argue the misstatement by the

State was a rhetorical gift to a defense lawyer who had a difficult case to argue. Counsel

asserted to the jury that the “[S]tate’s [A]ttorney mischaracterized half the testimony” and was

“playing” on the jury’s “sympathies.” This was combined with defense counsel’s argument

that much of the State’s case was “garbage,” which could add only reasonable doubt in the

jury’s deliberations. This error did not result in substantial prejudice to defendant. Rather,

defense counsel skillfully turned the remark to defendant’s advantage, demonstrating the

essence of good advocacy. Given defense counsel’s response, and the court’s instructions to

the jury immediately before and after closing that arguments are not evidence, we find that any

error was cured. See People v. Willis, 409 Ill. App. 3d 804, 814 (2011). Second, the

prosecutor’s comment was made in passing and on an undeniably collateral matter. As the trial

court noted, defendant testified at length, so the jury was able to evaluate his credibility.

Whether the child fell off the right or left side of the bed is of no moment when defendant

clearly and coherently testified that he was not even in the room when Joshua fell and that the

injuries resulted from the bed fall and not from his intentional beating or shaking.

Significantly, defendant’s theory of the case was that the child could have hit the nightstand on

his way to the floor. Since there were nightstands on either side of the bed, the State’s

inaccuracy could not have interrupted defendant’s theory. In short, the State’s improper

comment did not destroy defendant’s credibility before the jury or cause substantial prejudice

to warrant reversal.

¶ 30 Furthermore, we find the evidence was anything but closely balanced. Several qualified

witnesses testified for the State that the injuries Joshua sustained were a result of violent

shaking or shaking combined with blunt trauma. These physicians actually treated the child

before he died, and their expertise in dealing with this unfortunate sort of domestic trauma was

well established. Defendant was the only individual at home with Joshua before these

substantial injuries arose. One need not summon up a clever argument to describe the power of

circumstantial evidence in such a tragic circumstance. Here, the medical evidence proffered by

the State was more than compelling evidence of defendant’s guilt. While defendant proposed

an alternative theory via Dr. Plunkett’s testimony, by any fair measure it would appear to have

been insufficient in light of the State’s competent evidence to the contrary. The State’s

evidence was substantial.

¶ 31 Defendant next contends the prosecutor impermissibly disparaged the defense expert

Dr. Plunkett in rebuttal argument by referring to him as a “snake oil” salesman, a “hired gun”

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who was being paid a salary to serve as a “professional witness,” and repeatedly stating

Dr. Plunkett was “making things up” with regard to his expert opinion. Defendant argues these

comments “effectively charged defense counsel with fabricating a defense.” The credibility of

an expert witness is a proper subject for closing argument provided it is based on the evidence

or inferences drawn from it. Luna, 2013 IL App (1st) 072253, ¶ 132. While it is not improper to

call the defendant or a witness a “liar” if conflicts in the evidence provide for such an assertion,

it is impermissible to assert defense counsel is engaging in trickery or misrepresentation.

People v. Starks, 116 Ill. App. 3d 384, 394 (1983); see also People v. Beltran, 2011 IL App

(2d) 090856, ¶ 69 (“It is not inappropriate to call the defendant a liar if the record supports that

assertion.”).

¶ 32 We do not condone the general tone or sarcasm adopted by the prosecution. It merits

mention, however, that it was defense counsel who introduced the inflammatory term “hired

gun” about which defendant now complains. Cf. Klingelhoets v. Charlton-Perrin, 2013 IL App

(1st) 112412, ¶ 30 (when, during argument at trial, plaintiff’s lawyer referred to the retained

medical expert for the defense as a “ ‘hired gun,’ ” no error occurred where the remark was

grounded in evidence and the term was introduced by the witness himself). Notably,

Dr. Plunkett had made his living solely as a testifying consultant for many years, primarily for

the defense. The evidence suggests he was indeed a professional witness. The State honed in

on this during its principal and rebuttal arguments as reason to disbelieve Dr. Plunkett due to

bias. Thus, the prosecution’s use of the term “hired gun” in a larger sense was grounded in the

evidence and was not error. See Luna, 2013 IL App (1st) 072253, ¶ 133. We reach the same

conclusion regarding the other comments suggesting that Dr. Plunkett was “making things

up.” The evidence showed that Dr. Plunkett admittedly represented a minority position in the

medical community that short falls in children could cause the type of head and eye injuries

which Joshua sustained, and Dr. Plunkett’s position represented the direct opposite of the

State’s testifying experts. Unlike the State’s witnesses, Dr. Plunkett was not a treating

physician to children and had not treated Joshua. Moreover, the prosecution’s rebuttal witness

testified that Dr. Plunkett’s 2001 study, while noteworthy, was more anecdotal in nature and

not statistically significant so as to influence a doctor’s clinical decision. Again, it is not

necessarily improper to call an expert a liar or argue the invalidity of one expert’s opinion (see

Starks, 116 Ill. App. 3d at 394), and these comments were inferences arising from the evidence

adduced at trial (see Hudson, 157 Ill. 2d at 441). Nonetheless, we wish to emphasize the

undeniably caustic nature of these comments, especially the term “snake oil salesman,” which

were unnecessary to persuade the jury in this case. To the extent such comments flirted with

impropriety or constituted error, however, they were insufficient to disturb the jury verdict

because they did not cause substantial prejudice to defendant. Hudson, 157 Ill. 2d at 441. The

jury would have reached the same conclusion in the absence of the comments. Likewise, any

error or impropriety was cured by the court’s proper jury instructions, which carry more weight

than attorney argument, and also the court’s admonition that arguments are not evidence. See

Willis, 409 Ill. App. 3d at 814.

¶ 33 We likewise reject defendant’s argument that the prosecution improperly impugned his

character during closing. The prosecutor noted that defendant disappeared from Joshua’s life

several weeks after the child was born, missed Joshua’s first Christmas, and only reappeared

some months later. The prosecutor noted that defendant was married to another woman the

entire time, so he was not exactly “father of the year.” These facts were in evidence and related

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to defendant’s interest in caring for his child and thus his credibility. Again, even if they

constituted error, the error would not approach a level warranting reversal. Based on the

foregoing, the alleged errors do not constitute plain and reversible error. Defendant has failed

to show the cumulative effect of these errors warrants reversal. See Coulter, 230 Ill. App. 3d at

230.

¶ 34 Defendant lastly contends he is entitled to 48 additional days of presentence custody credit

because he was arrested on January 13, 2008, and sentenced on March 23, 2012. See 730 ILCS

5/5-4.5-100(b) (West 2012); People v. Williams, 239 Ill. 2d 503, 509 (2011). The State notes

the arrest report indicates defendant was arrested January 31, 2008. Defendant counters that

both the mittimus and indictment return sheet list his arrest date as January 13, 2008, and Cook

County records, of which we may take judicial notice (see People v. Jimerson, 404 Ill. App. 3d

621, 634 (2010)), indicate his bail was set three days later. In light of the discrepancy, we credit

defendant with the earlier date of January 13, 2008. He is entitled to 48 days of presentence

custody credit, excluding the day the mittimus issued, for a total of 1,531 days. We direct the

clerk of the circuit court to correct the mittimus accordingly. People v. Rivera, 378 Ill. App. 3d

896, 900 (2008).

¶ 35 Defendant also asserts he is entitled to certain fines, fees, and costs, including $100 for the

methamphetamine law enforcement fund, $25 for the drug traffic prevention fund, $5 for the

court system (violation of the Illinois Vehicle Code), $5 for electronic citation, $10 for the

mental health court, $5 youth diversion/peer court, $5 for the drug court, and $30 for the

children’s advocacy center. The State concedes these fines and fees were charged in error. The

State also concedes that the latter four charges may be offset by the $5-per-diem credit for time

spent in pretrial custody. See 725 ILCS 5/110-14 (West 2012); People v. Jones, 397 Ill. App.

3d 651, 663 (2009) (the credit applies only against a “fine,” not a fee); see also People v. Paige,

378 Ill. App. 3d 95, 102 (2007) (mental health court and the youth diversion/peer charges are

characterized as fines). Defendant’s fines, fees, and costs are adjusted to reflect a total

assessment of $850. We direct the clerk of the circuit court to correct the mittimus and fines

and fees order accordingly. Rivera, 378 Ill. App. 3d at 900.

¶ 36 CONCLUSION

¶ 37 Based on the foregoing, we affirm the judgment of the circuit court of Cook County.

¶ 38 Affirmed; mittimus corrected; fines and fees order corrected.

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