Appeal from the Circuit Court of Massac County, the Hon. D.D.
Bigler, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 28, 1980.
The defendant, Alan Greer, was charged in separate informations with the murders of Sharon Moss and her 8 1/2-month-old fetus. He was found guilty of both murders by a jury in the circuit court of Massac County and was sentenced to death. The case is before us on direct appeal. Ill. Const. 1970, art. VI, sec. 4(b).
Apart from the mental condition of the defendant at the time of the killings, the facts of this case are not disputed. The record indicates that Alan Greer enlisted in the Army in 1965 and was soon hospitalized, diagnosed as schizophrenic and, approximately half a year after his enlistment, was discharged. Since that time he has been treated at several Veterans Administration hospitals, receives a government pension for complete disability, and has been taking relatively large doses of the psychotropic drugs Thorazine, Valium and Artane under prescription. Testimony also indicated that defendant would become "wild" when he drank while taking the drugs.
On January 21, 1978, defendant spent much of the day in a tavern in Joppa drinking whiskey and beer. At approximately 5 p.m. he left the tavern to go home and feed his pigs. Before leaving the tavern, however, he allegedly said that he was going home to "beat the hell out of my old lady."
After defendant arrived home and fed his pigs he argued with his girlfriend, Sharon Moss, who had been living with him. He then beat her with his fists, kicked her with his feet, and struck her repeatedly with a broomstick which broke during the course of the beating. The evidence does not establish clearly when Sharon Moss died. Defendant knew he had injured her severely and tried to care for her that evening, but by the next morning when he summoned help she was dead. A pathologist testified that she died as a result of the beating. He also testified that the gestational age of the fetus she carried was approximately 8 1/2 months, that the fetus died from the effects of the beating, and that its death occurred either within a few hours before, or at the death of, Sharon Moss.
At trial defense counsel attempted to prove that defendant was insane at the time of the killing, but objections to the proffered opinions of clinical psychologists were sustained by the trial judge. Instructions were given the jury on insanity and intoxication defenses, however, and defense counsel argued extensively as to both.
The State decided to seek the death penalty, and the defendant elected to proceed without a jury. At the sentencing hearing the trial judge concluded that the State had proved beyond a reasonable doubt that the defendant had taken two lives with the intent to kill (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(3)). The court also decided that the defendant's three prior misdemeanor convictions precluded a finding that Greer did not have a significant history of prior criminal activity (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(c)(1)). Further, the court concluded that defendant was not under the influence of extreme mental or emotional disturbance when he committed the murders (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(c)(2)). Having found that the State had proved an aggravating factor beyond a reasonable doubt and that none of the statutory mitigating factors were present, the trial judge imposed the death sentence.
Defendant raises in this appeal a multitude of contentions of which only the following need be considered: (1) whether the killing of a fetus may constitute murder under Illinois law; (2) whether the death penalty was properly imposed, given the facts in this case; (3) whether the introduction of evidence concerning the death of the fetus constituted reversible error; (4) whether the State's Attorney committed reversible error by mentioning in his opening statement the defendant's attempt to enter a guilty plea at arraignment; (5) whether the State's failure to provide defense counsel with the substance of an oral statement by the defendant requires reversal; and (6) whether the defendant received effective assistance of counsel at trial. Our decisions on these questions render the defendant's other contentions moot.
Whether the killing of an unborn fetus may constitute murder is a question of first impression in Illinois. Although this court held in People v. Ryan (1956), 9 Ill.2d 467, 471, that the corpus delicti for infanticide includes proof that the child was born alive, that holding does not dispose of this case for in Ryan the acts that allegedly constituted homicide followed the birth of the child. The defendant contended that the infant had been stillborn and therefore was already dead when the acts were performed so that the State had the burden of proving that the child had been alive when the defendant acted. In the instant case, however, the pathologist's testimony indicates that the fetus was alive when Greer attacked Sharon Moss, and Greer does not question that point. The issue, therefore, is whether the commission of acts which result in the death of a fetus before its birth may constitute murder.
The answer to that question depends upon the proper construction of the homicide statute. Section 9-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)) provides that "[a] person who kills an individual without lawful justification commits murder * * *." The use of the word "individual" rather than "person" to designate the victim is not significant; the two words are synonomous, and the drafters merely used one to designate the perpetrator and the other to designate the victim in order to avoid confusion. (Ill. Ann. Stat., ch. 38, par. 9-1, Committee Comments, at 17 (Smith-Hurd 1979).) The committee comments, however, also indicate that section 9-1(a) codifies the common law and the prior decisions of this court. (Ill. Ann. Stat., ch. 38, par. 9-1, Committee Comments, at 13, 17 (Smith-Hurd 1979).) Since this court has not considered previously the question now before us, we must turn to the common law to determine whether an unborn fetus is an "individual" within the meaning of our homicide statute.
At common law the killing of a fetus was not murder unless the child was born alive and then expired as a result of the injuries previously sustained. (3 Coke, Institutes *50; 1 Blackstone, Commentaries *129-30; 1 Hale, Pleas of the Crown 433 (1800).) This rule may produce apparently incongruous results depending on the precise time when the fetus expires. If the fetus survives long enough to be born and take a single breath, the defendant committed homicide. If, however, the fetus expires during birth, or just before, homicide has not occurred. Some States have avoided this anomaly by expressly including a fetus within the definition of victims of homicide or by passing a separate feticide statute. (See, e.g., Cal. Penal Code sec. 187 (Deering 1971); Mich. Comp. Laws Ann. sec. 750.322 (1968).) In the absence of such a legislative enactment, however, no court of last resort in this country has held that the killing of a fetus is murder unless the fetus is born alive and then expires. See, e.g., Keeler v. Superior Court (1970), 2 Cal.3d 619, 470 P.2d 617, 87 Cal.Rptr. 481; State v. Gyles (La. 1975), 313 So.2d 799; State v. Brown (La. 1979), 378 So.2d 916; State v. Dickinson (1971), 28 Ohio St.2d 65, 275 N.E.2d 599; Morgan v. State (1923), 148 Tenn. 417, 256 S.W. 433; State v. Larsen (Utah 1978), 578 P.2d 1280.
The State contends, however, that the born-alive rule developed in the common law simply reflected the inadequacies of contemporary medical knowledge. Given the high infant mortality rates prevalent in the 18th century and the lack of medical knowledge, the judges who formulated the common law were unwilling to consider the killing of a fetus murder and rationalized that result by creating a presumption that the fetus would die in childbirth. (Keeler v. Superior Court (1970), 2 Cal.3d 619, 643, 470 P.2d 617, 633, 87 Cal.Rptr. 481, 497 (Burke, J., dissenting), citing Atkinson, Life, Birth, and Live-birth, 20 L.Q. Rev. 134 (1904).) Although the killing of a fetus was not homicide at common law, the abortion of a quickened child was punished as a "great misprision." (3 Coke, Institutes *50; 1 Blackstone, Commentaries *129-30.) The common law also protected the rights of the unborn child in a variety of other ways. The unborn child could take property by devise and intestate succession, and the child was considered a life in being for purposes of the Rule Against Perpetuities. (Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U.C.L.A.L. Rev. 233, 235 (1969).) Moreover, Blackstone maintained that as a general proposition "[l]ife * * * begins in contemplation of law as soon as an infant is able to stir in the mother's womb." (1 Blackstone, Commentaries *129.) The State argues that the medical basis for the common law's reluctance to punish as murder the killing of a fetus no longer exists today. A fetus which has reached the stage of viability, generally thought to be about six months of age, has a high probability of survival upon premature birth. Modern medicine regards the fetus as a distinct individual since it has a separate circulatory system which does not intermix with the mother's. The State concludes therefore that a fetus which has reached the age of viability should be protected by the homicide statute.
To illustrate its argument that the advances in medical knowledge during the last 100 years require that a viable fetus be recognized as an independent human being, the State points to the development of tort law in this century. In the last century and during the greater part of the first half of this century American courts> uniformly refused either to allow a child to sue for injuries sustained before birth or to allow the survivors to maintain a wrongful death action based on the death of a fetus. (See, e.g., Dietrich v. Northampton (1884), 138 Mass. 14; Allaire v. St. Luke's Hospital (1900), 184 Ill. 359; see also W. Prosser, Torts sec. 55 (4th ed. 1971) and cases cited therein; Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U.C.L.A.L. Rev. 233, 240-43 (1969), and cases cited therein.) In Allaire, Mr. Justice Boggs, dissenting, marshaled the medical evidence for regarding a viable fetus as a human being (Allaire v. St. Luke's Hospital (1900), 184 Ill. 359, 368-74 (Boggs, J., dissenting)) and most of the States in the country, including this one, have subsequently adopted his reasoning. (See W. Prosser, Torts sec. 55 (4th ed. 1971) and cases cited therein.) This court in particular has allowed a child to sue for prenatal injuries (Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348), and, more importantly, has allowed a wrongful death action for the death of a fetus due to injuries sustained while the fetus was viable (Green v. Smith (1978), 71 Ill.2d 501; Chrisafogeorgis v. Brandenberg (1973), 55 Ill.2d 368). The State argues that the same problems which underlay the reluctance at the common law to consider the killing of a fetus ...