Appeal from the Circuit Court of Cook County Honorable Karen Thompson Tobin, Judge Presiding.
The opinion of the court was delivered by: Justice McNULTY
This case comes before us for a second time. In the first trial a jury found defendant, Elizabeth Ehlert, guilty of murdering her newborn child. We reversed the conviction because the prosecution presented irrelevant and highly prejudicial evidence that defendant had two abortions. People v. Ehlert, 274 Ill. App. 3d 1026 (1995). On remand defendant chose a bench trial. The trial court found defendant guilty of murder. On this appeal, defendant argues that the prosecution failed to prove that the child was born alive, that defendant performed any act after the birth to cause the death, or that defendant had the mental state necessary for murder. Because we find the evidence insufficient to prove live birth, we reverse the conviction.
On August 21, 1990, defendant gave birth in her bedroom, in the home she shared with her two sons, her father, and her fiancé, Steven King. Two days later employees of the Salt Creek Park District discovered the baby's corpse in a nearby lake. A creek that ran behind defendant's house fed into the lake.
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. Police talked with defendant on numerous occasions over the next few weeks. Defendant made contradictory statements concerning the birth. A grand jury indicted defendant for the murder of her baby.
On retrial, as at the original trial, the prosecution presented several witnesses who testified that between April and mid-August 1990, defendant repeatedly told them she was not pregnant. She told the witnesses, including King, that she had a cancerous tumor and she had seen several doctors about it. On August 17, 1990, defendant told King that a doctor discovered she was pregnant, but the fetus was dead, and the doctor gave her a shot to induce an abortion.
King testified that he first met defendant in January 1990, and he moved in with her shortly thereafter. 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. King testified that he heard a baby cry for two seconds as he went to get the plastic bag. He admitted on cross-examination that he told police only that he thought he heard a baby cry.
King testified that 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 swore that he heard nothing from the bedroom during the five minutes the newborn was alone in there. He saw no signs of motion in the bag when defendant took the bag from the house. When defendant returned, she said she put the bag in the creek to let the fetus go back to nature.
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 to King. 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 put the fetus in a garbage bag and left the bag by a tree near the bank of the creek out back. When they asked if she threw the bag into the creek, she said, "No, unless you want me to say I did it, then I did it." She asked to have the baby buried next to defendant's mother. In another interview defendant told police that her ex-husband, not King, fathered the baby late in 1989. She admitted that she had sexual relations with her ex-husband frequently in November 1989.
A few days later defendant called the police and said she could not live with herself, and she wanted to tell them the truth. She asked them to assure her King would take care of her children if she went to jail. Later she told them that when she went to the bathroom after delivering the dead fetus, King went to the bedroom, picked up the bloody towels and the baby and threw them out.
Dr. Mitra Kalelkar, assistant chief medical examiner for Cook County, admitted that when she completed the autopsy she could not determine to a reasonable degree of medical certainty that the baby had been born alive. She found no unusual cause of death, so her "suspicion was that the baby drowned." The prosecutor asked Dr. Kalelkar directly whether, at the completion of the autopsy, she "form[ed] an opinion within a reasonable degree of medical certainty as to whether or not the baby was born alive?" Dr. Kalelkar answered:
"[A]t that time I had a suspicion that this baby was born alive and that the cause of death would be drowning; and pursuant to that suspicion, which I related to the police officers, I instructed them to investigate further."
She later reiterated that after the autopsy she told police she "could not tell for sure ...