APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE LEO HOLT, JUDGE PRESIDING.
The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Buckley, J., concur.
The opinion of the court was delivered by: Wolfson
The Honorable Justice WOLFSON delivered the opinion of the court:
The indictment against Clinton Gillespie contained three counts. The first two charged the defendant with intentional homicide of an unborn child. The third charged him with aggravated battery. In a bench trial, he was convicted of all three charges. He was sentenced to 30 years' imprisonment on the first count. The other counts merged with count I.
We find the State failed to prove an essential element of the charge of intentional homicide of an unborn fetus. For that reason, the convictions on that charge will be reversed. We affirm the conviction for aggravated battery and remand the case to the trial court for resentencing.
On May 24, 1990, Chicago police officer Thomas Burg responded to a call. He drove to Tracy Cook's apartment at 3054 East Cheltenham Place. When Officer Burg arrived, he saw Cook walk to his police car, taking "baby steps." He noted she was bent over and clutching her stomach. She was grimacing in pain and sobbing. He helped her to the car, then drove her to the emergency room at South Shore Hospital.
At the hospital, Cook was given an ultrasound to determine the status of the child she had been carrying. Dr. Chang Bock Rhee, a diagnostic radiologist, observed the results of the ultrasound test. It revealed a normally-developed fetus with a gestational age of 27.6 weeks, by head measurement. No heartbeat could be detected.
Cook was transferred to South Chicago Hospital, where she was attended by Dr. Kennedy. Dr. Kennedy examined Cook and noted that she had several external abrasions on her neck, thorax, and lower abdomen. Cook told him that her boyfriend had beaten her and that she had been kicked in the abdomen at least four times. Based on this patient information and the results of the ultrasound done at South Shore Hospital, Dr. Kennedy's diagnosis was fetal demise due to trauma. He ordered that labor be induced. At 6:57 p.m. on May 25, 1990, Cook delivered a stillborn female fetus.
The fetus showed no apparent pathology. Cause of death was not readily determinable, although Dr. Kennedy hypothesized that death was due to trauma which caused the placenta to dislodge. Cook signed papers agreeing to have an autopsy performed on the fetus.
On June 6, 1990, Gillespie was arrested. On June 7, 1990, Cook appeared before the grand jury.
On June 26, 1990, the grand jury returned an indictment against Gillespie, charging him with two counts of intentional homicide of an unborn fetus and one count of aggravated battery.
Trial was set to begin on February 22, 1993. Cook failed to appear. On February 23, 1993, the court issued a warrant for her arrest. On February 24, 1993, Cook appeared in court, represented by an attorney. She admitted that she had testified before the grand jury, had signed a sworn complaint against Gillespie, and had given a signed statement to police. Now, however, she stated that it was her intention to refuse to testify in exercise of her fifth amendment right.
The court held a hearing to determine whether there was a proper basis for Cook to exercise her fifth amendment right. Finding no valid basis, the court directed Cook to testify or be found in contempt of court.
A bench trial began. Testimony was taken from Dr. Rhee, Dr. Kennedy, and Officer Burg. They related the events as stated above. In addition, Dr. Wadi Bardawil, the Chief of Surgical Pathology at Hoffman Estates Medical Center, was called on to render an opinion as to the cause of death of the fetus. Bardawil, who specializes in obstetrical and gynecological pathology, reviewed Cook's medical reports, the reports of the autopsy, as well as slides and photographs of the placenta and umbilical cord. He testified that the slides and photos showed hemorrhaging within the placenta, consistent with trauma to the mother. He further noted that the autopsy of the fetus showed that it was developmentally normal and without disease. The early stages of decomposition could be detected, indicating that the fetus had been dead for less than 48 hours.
When Tracy Cook was called on to testify, she was unwilling. She admitted that she had known Gillespie for seven years and that he was the father of her son, Avery. She neither confirmed nor denied that Gillespie was the father of the child that was born stillborn on May 25, 1990. Instead, on cross-examination she testified that, prior to May 24, 1990, she had broken up with Gillespie and had been seeing other men.
When asked how far into her pregnancy she was on May 24, 1990, Cook stated that she could not remember but she thought it was only 5 months. She then portrayed a different picture of the events on May 24, 1990.
She testified that she woke up feeling sick that morning. When Gillespie arrived at her apartment, she was angry with him and slammed the door in his face. Gillespie then kicked the door in and she was struck by the door in "the vaginal area." She implied that her actions had provoked Gillespie into kicking the door and that the door accidently hit her.
Cook further testified that she grabbed a brass watering can (used to water plants) and hit Gillespie with it. Gillespie, in turn, pushed her, she fell against a radiator, lost her balance, and fell. Cook admitted that Gillespie kicked her in the legs as she lay on the ground. Cook added, however, that she kept trying to kick him ...