State's attorney: Grandparents did not aid prosecution in beating case

News-DemocratJanuary 17, 2014 

Grandparents Carla and Antone Stewart of Swansea now have legal custody of their grandson, Gabriel, who was seriously injured by his father in July. The then-five month old child suffered brain damage, a broken arm, and bites on his face.

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The grandparents of a baby so severely beaten by his father that doctors gave the child less than 24 hours to live say justice was not done when a judge sentenced the father to 8 years in prison.

St. Clair County State's Attorney Brendan Kelly on Friday said prosecutors sought a sentence of 30 years in prison and the grandparents declined to aid in the investigation and prosecution on multiple occasions.

Randall Penn, 21, was sentenced Wednesday after pleading guilty to one count of felony aggravated battery of a child. He originally faced seven felonies related to the July beating his then 5-month-old son, Gabriel.

Gabriel suffered numerous injuries, including three skull fractures, a broken arm and bite marks to his face.

Gabriel's grandparents, Antone and Carla Stewart of Swansea, now have custody of the 11-month-old. The Stewarts say prosecutors did not ask them to testify on behalf of Gabriel during the sentencing hearing.

Penn, his father and brother pleaded for leniency saying Penn was immature and lost control under the influence of marijuana.

"We wanted the (judge) to understand this child has a voice. We are connected to this child," Antone Stewart said. "They (the prosecutor) couldn't adequately represent him or speak for him as his family could. We're the ones up in the middle of the night when he is having different issues. We're the ones meeting his day-to-day needs. Justice was not served."

Kelly said the Stewarts did not cooperate, possibly because his office has filed a petition for abuse and neglect against Gabriel's mother to remove the child from custody. The petition is set for trial.

"The Stewarts undoubtedly love their grandchild very much, but they also love their daughter and that clearly impacted their ability to assist this case," Kelly said. "The Stewarts were not fully cooperative with the police investigation so there was little to have them testify about. They declined on multiple occasions to cooperate and assist in the investigation."

The severity of injuries endured by Gabriel justified a harsher sentence, according to the Stewarts. The injuries to Gabriel's brain likely caused long-term disabilities.

The beating left Gabriel with psychological scars as well, Carla Stewart said. Gabriel will cover his face in a defensive posture when an adult makes some motions other children perceive as playful.

"They say babies don't remember but that's not true," Carla Stewart said. "When he gets aggravated ... he balls his hands up and hits himself in the head. I've never seen children do that. He gets up in the middle of the night, not for a bottle, but to make sure someone is there. We cannot leave out of his sight. No matter where we're at one of us needs to be visible to him. It's like he had no security."

The Stewarts believe Circuit Judge Zina Cruse, who sentenced Penn, had her hands tied because the prosecution dropped six of the seven charges against Penn.

"If you drop six charges, how do you expect to get a maximum sentence? That was shocking," Antone Stewart said. "We are talking about his dad who stole his innocence. This was his dad who is suppose to nurture and raise him. He literally attempted to kill his own son."

Kelly said some of the charges were reduced because they duplicated each other.

"We chose the strongest charge with the highest sentence, which is a class X felony, 6 to 30 years, specifically that the defendant caused multiple skull fractures to the child, to which the defendant plead guilty," Kelly said. "Also, because the mother and the family members of the mothercould not or would not provide us with crucial information regarding the timeline ofwho was caring for the child, we ultimately could notestablish the time or circumstances underwhich some different injuries occurred.

"However, the defendant's counsel agreed that the court was able to consider the facts of those other charges in sentencing and agreed on the recordthat the prosecution would provide evidence in trial of thechild's injuries including severe brain injury, skull fractures, a fractured arm bone, healing broken rib bones, and multiple bruises. That's why it was right for us to seek a maximum sentence with or without the cooperation of the family."

Kelly said sometimesprosecutors are the only clear voice for a victim and someone has to be that voice.

"We haveall kinds of casesincluding drug cases, gun cases, murders, domestics, where witnesses may have conflicts or may be reluctant to assistin prosecuting. Every witness must decide within their conscience what they are willing to do, but we move foward with what we've got, and we put up the best fight we can," Kelly said.

Carla Stewart said the "choir boy" portrait painted of Penn by his family members in the hearing ignored Penn's history of violence. She said the sentencing hearing brought back memories of the days spent in the hospital with Gabriel crying out in pain because his young age kept doctors from administering pain medicine.

"It hurt a whole lot. I relived everything. I just couldn't get that out of my head. It felt like they were letting (Penn) go," Carla Stewart said.

The Stewarts said they fought for two months after the beating for full custody of Gabriel and will continue fighting for custody should Penn seek custody upon his release from prison.

"There may be a custody battle that (Penn) will lose. This child will have a voice. We are going to do everything humanly possible to protect him," Antone Stewart said. "He has demonstrated he doesn't want to be a dad to this child."

Gabriel's recovery is miraculous, Carla Stewart said.

"They thought he was going to have disabilities the rest of his life and be on a feeding tube the rest of his life," Carla Stewart said. "We are devout Christians and we believe God can heal. We prayed and we prayed, around the clock. It was me and his Godmother around the clock just there praying over him believing God was going to heal him, and he did.

"The head neurologist said he was going to have lifelong injuries. He wouldn't be able to speak well, run like normal kids, play like normal kids. I just sat there and cried because all this could have been prevented."

Antone Stewart said Gabriel's addition to their life has been a blessing.

"He showed me prayer does work. He has made me self-conscience of how beautiful life is itself," Antone Stewart said. "A lot of stuff doesn't matter anymore. This guy is a miracle baby. ... If I wake up in the morning, my back hurting and had woke up four times in the night, it's worth it just to see him smile."

Contact reporter Daniel Kelley at dkelley@bnd.com or 618-239-2501.

Contact reporter Daniel Kelley at dkelley@bnd.com or 618-239-2501.