Appeal from the Circuit Court of Lee County; the Hon. James E.
Bales, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After trial by jury defendant, Christine Weeks, was found guilty of involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9-3(a)) and was sentenced to a term of three years' imprisonment. She appeals, contending the evidence was insufficient to establish her guilt beyond a reasonable doubt and that the trial court arbitrarily denied a sentence of probation and abused its discretion in the sentence it did impose.
The information upon which defendant was tried charged that she committed involuntary manslaughter in that she
"acting in a reckless manner, performed an act likely to cause death or great bodily harm to some individual, in that said defendant did give live birth to a female child and then cover and wrap said female child in sheets and blankets and leave said female child on the floor of defendant's apartment from 7:30 p.m. January 9, 1981, until 11:00 a.m. January 10, 1981, and then place said female child and said wrappings in garbage bags until 6:00 p.m. January 11, 1981, and then place said female child, wrappings and garbage bag outside at the curb on W. 2nd Street just east of Monroe Avenue, Dixon, Lee County, Illinois, thereby causing the death of Baby Girl Weeks, in violation of Section 9-3(a), Chapter 38, Illinois Revised Statutes."
At trial, defendant testified she was 20 years old, single and lived alone in a one-room apartment which had no telephone or water supply; the bathroom was downstairs in the house. On Friday, January 9, 1981, her mother gave her a ride home from defendant's employment and she arrived at her apartment shortly after 4 p.m. She had not been feeling well throughout the day and believed she might be coming down with the flu. Defendant was about seven months pregnant, but did not yet show it, and no one other than her former boyfriend was aware of the pregnancy. She fell asleep on her bed at about 5 p.m., but awoke two hours later in pain and feeling pressure. She pulled bedclothes to the floor and lay down; the pressure increased, her water broke, and the baby started to come. The room was dark and the only light was from a street light through the window. After the birth defendant lay on the floor in pain and felt weak; she was bleeding and it increased when she pulled out the afterbirth. Defendant testified she lay there for five to 10 minutes trying to figure if it had really happened. She heard the baby whimper, then crawled a few feet to a corner of the room and passed out. Defendant regained consciousness early the next morning and found the baby was dead. She testified she covered it at that time.
On cross-examination defendant testified she screamed during the birth but did not call out for help or attempt to get medical attention after the birth because she was too embarrassed; that she realized the baby needed help, but did not assist the child because of her pain and weakness. Defendant acknowledged she had told police officers that she had covered the child after its birth rather than on the following morning and also that she had later placed the body at the curb with the garbage to conceal the fact she had given birth.
Dale Chandler testified he was out on the evening of Sunday, January 13 looking for clothes and junk at the curb which he would repair and give to the needy. He found a garbage bag in which there was a box containing the body of an infant and its placenta and also a bloody blanket and clothing. Chandler called the police who located a paycheck stub in the bag which they traced to defendant.
Officers Harry Ulferts and Robert Short talked to defendant later that night at the police station. Ulferts testified she first denied giving birth, then admitted she had delivered the child. She stated it had moved a little bit after birth and she had later covered it with a blanket. Defendant said the baby had not cried after birth, but had whimpered. When asked how long that occurred defendant said she did not know and when requested to set a minimum and maximum period in which the baby whimpered, she responded she was not sure but fixed the period from 10 minutes to 30 minutes. Ulferts further testified defendant said she had remained on the floor after the birth until the next day and on the following evening placed the body and bloody clothes in a garbage bag on the curb. Defendant said she was too embarrassed to ask for help because it was an unwanted pregnancy and the child's father had become her sister's boyfriend.
Officer Short testified that defendant said she had covered the child completely after its birth and had then lain on the floor until the next day. She told him the baby had come too fast for her to call for help.
Dr. Grant Johnson, a pathologist, testified he conducted an autopsy but was unable to determine the cause of the child's death. He stated that no medical or traumatic cause of death was found and that no medical findings led to a diagnosis of asphyxia. The doctor also testified that the most probable cause of death was lack of postpartum care, probably with an element of asphyxia. He stated an infant requires care immediately after birth, warmth, feeding to avoid dehydration and clearing of the respiratory passages of foreign material which might gain access during birth. Dr. Johnson determined the baby had been born alive and, although premature, was capable of surviving. On cross-examination Dr. Johnson testified there were no anatomical findings in his examination leading to a diagnosis of asphyxia as a possible or contributing cause of death and that his conclusion relating to asphyxia was based entirely upon information supplied to him by police officers.
Dr. Kathleen Gibbons, called by defendant, testified that it would be normal for a woman to suffer a perineal tear giving birth for the first time, as did defendant, and become very fatigued from loss of blood. Dr. Gibbons further testified that a new-born infant begins to breathe within a minute and normally gives out a very husky, loud cry. If, however, an infant is whimpering, but not crying, there could be a problem, such as asphyxia during the birth.
No medical evidence was presented as to how long the infant lived after birth. Defendant testified the child was dead when she saw it early the following morning.
• 1 The State was required to prove beyond a reasonable doubt each of the essential elements of the offense of involuntary manslaughter: (1) that defendant did an act; (2) which caused the death of another; (3) and the act, which was such that it was likely to cause death or great bodily harm; (4) was performed recklessly. (People v. York (1978), 57 Ill. App.3d 243, 247, 373 N.E.2d 90, 93; Ill. Rev. Stat. 1981, ch. 38, par. 9-3(a).) Section 4-6 of the Criminal Code of 1961 defines recklessness as a conscious disregard of a substantial and unjustifiable risk, which disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. (Ill. Rev. Stat. 1981, ch. 38, par. 4-6.) Section 2-2 of the Criminal Code of 1961 provides that an "`act' includes a failure or omission to take action" (Ill. Rev. Stat. 1981, ch. 38, par. 2-2) and must be read in pari materia with section 4-1 of the Criminal Code of 1961, which provides:
"A material element of every offense is a voluntary act, which includes an omission to perform a duty which the law imposes on the offender and which he is physically capable of performing." ...