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People v. Bolar





Appeal from the Circuit Court of Winnebago County; the Hon. Philip G. Reinhard, Judge, presiding.


The defendant, Terry Lee Bolar, was charged by information with the crime of reckless homicide (Ill. Rev. Stat. 1979, ch. 38, par. 9-3). He was convicted of this offense having waived his right to trial by jury and proceeding to trial before the trial court. He maintains on appeal that his conviction should be reversed because it was not proved beyond a reasonable doubt (1) that the victim was an individual within the contemplation of the statute; (2) that he was intoxicated at the time of the offense; or, (3) that his intoxication was the cause of the accident which served as the basis of the conviction. We affirm.

In the early morning hours of May 3, 1980, Timothy and Kelly Oswald were driving to their home in Rockford, Illinois. Timothy was driving and Kelly was seated in the front passenger seat. At that time Kelly Oswald was somewhat more than eight months pregnant.

When the Oswald's vehicle entered the intersection of 20th Street and 12th Avenue, it was struck on the driver's side. The defendant, Terry Bolar, failed to stop for a stop sign located at 12th Avenue. His vehicle struck the Oswald's vehicle at a speed in excess of 30 miles per hour.

Kelly suffered some minor lacerations and abrasions and experienced abdominal pain. She and her husband were taken to Rockford Memorial Hospital.

The Rockford police arrived at the intersection shortly after the accident. At trial Officer Miller testified that he had noted "a very strong odor of alcoholic beverage" on the defendant. He also testified that the defendant was "staggering," and made several unsolicited statements to the effect that he had had only "a couple of beers." The defendant had fallen asleep while in the squad car and again during the bonding procedures at the police station. Officer Kaske testified to substantially the same observations and that the defendant's speech was slurred and eyes watery and bloodshot. Both testified that in their opinion defendant was intoxicated.

In the meantime Kelly Oswald was treated in the emergency room at Rockford Memorial Hospital. Monitoring the fetal heart disclosed that the baby's heartbeat was strong. Kelly Oswald at that time was released by the emergency room staff and joined her husband who was being treated in another room. Some time later, the record being unclear as to the exact time, Mrs. Oswald's abdominal pains worsened. While walking with her parents in the hospital she commenced to bleed vaginally and was placed under the hospital's care again. She was placed in the high risk obstetrical ward at about 4:30 a.m. The fetal heart monitor at that time registered a fetal heart rate of 140 beats per minute which was considered normal.

Dr. McHugh, Kelly Oswald's physician who was ministering to her obstetrically, was summoned to the hospital. He testified that upon his arrival at the hospital at approximately 5 a.m. the fetus' heartbeat was 140 beats per minute. By 6:45 a.m. the fetus' heartbeat had fallen to 115 beats per minute and Dr. McHugh called in a consultant. While the consultant was examining Kelly Oswald the baby's heart rate dropped off "even more dramatically."

Kelly Oswald's condition was diagnosed as placenta abruptio, i.e., the separation of the placenta from the uterine wall. When the placenta is separated from the uterine wall prematurely the fetus' oxygen supply is cut off. Dr. McHugh testified that a fetus would expire if placental separation were complete enough.

Approximately 7:50 a.m. the doctors performed a cesarean section on Kelly Oswald. At 8 a.m. the fetus was removed from her uterus. At this time the baby was handed to Nurse Sally Craig by Dr. McHugh. Dr. McHugh was acting as the pediatrician attending the baby at that time. Nurse Craig had previously been instructed by Dr. McHugh to determine the heartbeat to see if they should proceed with resuscitation measures. Nurse Craig at that point measured the heartbeat and based upon a timing over a 15-second period established that there was a rate of about 50 heartbeats per minute, and they were "regular and faint." She advised Dr. McHugh of the heartbeat and to go ahead with resuscitation measures at that time. The infant was flaccid, did not move and made no apparent effort to breathe. Oxygen was administered and the doctors attempted to "resuscitate" the infant. After two minutes, Nurse Craig again measured the heart rate. She heard "two beats slow and then three little like a flutter beat, and then it stopped." Dr. McHugh continued to resuscitate while Nurse Craig passed the stethoscope to another nurse standing there who stated she could hear "nothing." The stethoscope was then passed to Dr. McHugh, and at that time resuscitation efforts were stopped. The infant was pronounced dead shortly after 8 a.m.

Several physicians offered expert testimony at trial. Dr. McHugh based his opinion upon his knowledge of Kelly Oswald's pregnancy, the circumstances of the collision, and his observation during the cesarean section, and stated that the placental separation could have been caused by the impact. He also testified that in his opinion the infant, Misty Oswald, had been "born alive" as that term is defined by the Vital Records Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 73-1 et seq.) and that he certified the birth accordingly. He testified that he had operated under the definition of live birth as set forth in said act for years. He further testified that he would have registered the infant as a live birth had there been but a single heartbeat.

Dr. McHugh testified that based upon the "Apgar Scale" he assessed Misty's condition as a one. He testified that the "Apgar Scale" is an assessment procedure used by physicians to gauge the vitality of newborn infants. Dr. McHugh explained that within one minute of birth an attending physician observes the color, pulse, respiration, temperature and muscle tone of a newborn, and, based upon these indications, assigns an "Apgar Scale" score on a scale of one through 10. An "Apgar Scale" of 10 would indicate good health, while a rating of eight or nine would be applied to an infant who is "very blue but pulling well." An "Apgar" score or five of six is associated with compromised respiration and signals "serious trouble." In the case of Misty Oswald, the only hint of life was a slow, faint pulse, and consequently Dr. McHugh had assigned her an "Apgar" of one.

During cross-examination, Dr. McHugh noted that a fetus' heartbeat could continue after partial separation of the placenta from the uterine wall. He also testified that upon physical separation from the mother a newborn supports its separate circulatory system through respiration. Dr. McHugh also indicated that a heartbeat could occur in the absence of any brain activity. He further testified that, in his opinion, this baby's brain was irreversibly damaged at the time of her birth.

Dr. William Rouse, the pathologist who performed the autopsy, also testified for the State. He stated that he found no evidence of internal or external abnormalities in the infant's physical development. He concluded that the cause of death was hypoxia, a deficiency of oxygen. In Dr. Rouse's opinion, this condition was caused by the accident.

Testimony was adduced concerning the medical standard which defines death as a demonstrable absence of brain activity as set forth under the Uniform Anatomical Gift Act (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 302). Dr. Rouse testified that a heartbeat may exist in a newborn despite the absence of brain activity. He also testified that the presence or absence of brain activity could not be deduced from the fact that the infant exhibited some heart action. However, had the infant demonstrated both a heartbeat and any one of the other "Apgar" factors, Dr. Rouse testified that he would have concluded that she had demonstrated "brain life."

Dr. Seward, the coroner of Winnebago County, testified. He testified he was a general practitioner of some years experience having delivered over 600 children. In response to a hypothetical question he testified, based upon what he understood to be commonly accepted and contemporary medical standards, that the baby was born alive. Further, when inquired of as to the criteria of the Vital Records Act his testimony was that "since there was a noted heartbeat, that would be defined as a live birth." ...

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