Appeal from the Circuit Court of Cook County. Honorable Charles Porcellino, Judge Presiding.
Petition for Leave to Appeal Denied December 6, 1995.
The Honorable Justice McNULTY delivered the opinion of the court: Cousins, P.j., and Gordon, J., concur.
The opinion of the court was delivered by: Mcnulty
JUSTICE McNULTY delivered the opinion of the court:
A jury found defendant, Elizabeth Ehlert, guilty of murder but not eligible for the death penalty. The trial court sentenced defendant to 58 years in the Illinois Department of Corrections. Defendant appeals from the conviction and the sentence. We reverse and remand for a new trial.
On August 21, 1990, defendant gave birth in her bedroom, in the home she shared with her two sons, her father, and her fiance, Steven King. Two days later employees of the Salt Creek Park District discovered the body of a newborn in a lake in a golf course. Police dubbed the corpse Baby Jane Doe. A creek which ran behind defendant's house fed into the lake. The medical examiner could not determine the cause of death because she could not tell whether Doe was born alive.
Following a tip from defendant's hairdresser, Joanne Ripp, police contacted King on September 6, 1990. King told the police he thought he heard a baby cry in defendant's bedroom for one or two seconds on August 21, 1990, while defendant was giving birth. Using this evidence in conjunction with her autopsy, the medical examiner determined that Doe drowned.
Police talked with defendant on numerous occasions over the next few weeks. Defendant made contradictory statements concerning the birth. Cellmark Diagnostics compared DNA from Doe's tissue with DNA from defendant's blood and found the DNA matched well enough for them to determine that defendant could have been Doe's mother. The grand jury returned an indictment which charged that defendant drowned Doe either with intent to kill or with knowledge that her acts created a strong probability of death.
Defendant moved to bar evidence that she had had two abortions in the 1980's. Despite defendant's admissions that she had borne two children and that she had medical care throughout those pregnancies, the court found the abortions relevant to determining whether defendant knew she was pregnant. Defendant asked the court to voir dire members of the venire concerning their attitudes regarding abortion.
The court read to the venire the document charging defendant with drowning her newborn. The court decided to ask each member of the venire whether she or he had "strong feelings *** relative to the issue of abortion," without asking what those feelings were. If the venire member admitted to having strong feelings the court asked whether the feelings would affect his or her ability to render a fair and impartial verdict in the case. The court denied defendant's request for questions which would give the venire member a context in which to decide whether his or her views on abortion would affect impartiality. In particular, the court refused to ask whether evidence that the defendant had prior abortions would affect the venire member's fairness.
Most members of the venire said they had no strong feelings on abortion. One member of the venire who had strong feelings about abortion said those feelings would not affect her fairness because the case did not deal with abortion; another said, "I know this is somewhat related, but it's not really an abortion, if I understand that it was a newborn child." The court denied defendant's repeated request for clarification to give the venire some context in which to determine whether evidence of prior abortions would affect impartiality.
Three venire members who admitted they had strong feelings about abortion became jurors, and three other jurors said they had opinions on the issue, but all said their opinions and feelings would not affect their ability to decide the case against defendant impartially.
Ripp testified that in April 1990 defendant said she had a cyst in her abdomen. In May, when Ripp noticed that defendant looked pregnant, defendant said she had a cancerous tumor, and she had been unable to get to the hospital to have it removed. King's parents also testified that defendant looked pregnant during the summer of 1990, but she said she had tumors.
Defense witnesses testified that in 1988, two years before this birth, defendant told them she had cancer. A doctor testified that he treated defendant for an ovarian cyst in 1985. The prosecution presented another doctor who testified that defendant had had two abortions.
King testified that in April 1990 defendant told him she had a cyst, and she had seen Dr. Haim Elrad about it. On July 18 she told King that Elrad found ovarian cancer. King told defendant to contact Dr. Philip Gardner or Dr. Josh Tunca. In early August defendant told King that Dr. Tunca told her she did not have cancer, but he wanted to remove the tumor.
A few days later she told King that in preadmission testing Dr. Tunca discovered that defendant was pregnant and the fetus, which was six to eight weeks old, had died. Defendant said Dr. Tunca gave her a shot to induce labor.
Dr. Tunca testified that he never spoke to or examined defendant, and he never had a patient named Elizabeth Ehlert. Dr. Elrad testified that he had not seen or treated defendant since 1988.
King testified that around 3 a.m. on August 21, 1990, defendant woke King up and told him she was in labor. She screamed in pain. King began pacing the hallway. About 30 minutes later, while defendant was still screaming, King said he would call for an ambulance. Defendant told him not to call because the labor was almost over. A few minutes later defendant asked King to get a plastic bag. As he went to get the bag he heard a baby cry for one or two seconds. He asked defendant what that was and she said he might have imagined it, or maybe he heard the dog. He went to the bedroom door to give defendant the bag. Defendant then crossed the hallway to the bathroom, carrying nothing. After five minutes defendant returned to the bedroom. She came out carrying the plastic bag by the top. King did not testify to hearing anything from the bedroom during the five minutes the newborn was alone in there, or to seeing the bag move. Defendant took the bag out back of the house. When she returned she said she put the bag in the creek to let the fetus go back to nature. A few minutes later she delivered the afterbirth on towels on the bed. King threw the towels in the trash. Defendant made a telephone call, telling King she was calling Dr. Tunca. After she finished she said the doctor told her to set up an appointment to see him the next day.
Dr. Richard Levy testified that he examined defendant on August 22, 1990. Defendant told him she had miscarried and flushed the miscarriage down the toilet. Dr. Levy found that defendant had a perineal tear, which was the kind of tear he often found following births of full-term babies. He determined that defendant's uterus was enlarged to approximately the size of a uterus 15 weeks into pregnancy. Immediately after delivery the uterus returns to the size it had at 15 to 20 weeks into the pregnancy, and it generally contracts to near its normal size over the next few days. Dr. Levy concluded that his findings from defendant's examination were consistent with findings he would expect from examining someone who had recently given birth to a full-term baby.
Police officers who questioned defendant on September 6, 1990, testified that she told them she had miscarried a fetus 15 weeks old and flushed it down her toilet. Police told her they had talked toKing. She said she threw the miscarriage in the garbage, then she said King threw it in the garbage. When they said King told them a different story, she said she did not remember what happened, but King's account was probably true because "he doesn't lie." She admitted that she lied to King, and she had not seen any doctors throughout her pregnancy.
Defendant told police her waters broke two days before the birth, when she fell while trying to retrieve her son's toy from a tree in her yard. She described the miscarriage as clots of blood, and she said she was "guilty of dumping or whatever." She first indicated that the fetus was about the size she could encircle between her thumbs and forefingers. She next said it was about the size of her purse, which was about 8 inches by 10 inches. When she said she had placed it on a bath towel, police brought a towel and asked her to fold it to the size of her fetus. She folded it to a length of 13 1/2 inches, which was approximately Doe's length in the fetal position.
Defendant said she put the garbage bag holding the fetus by a tree near the bank of the creek out back, and it might have slipped into the water. When they asked if she threw it into the creek, she said, "No, unless you want me to say I did it, then I ...