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FIRST DIVISION
November 18, 2002

This case comes before us for a second time. In the firsttrial a jury found defendant, Elizabeth Ehlert, guilty ofmurdering her newborn child. We reversed the conviction becausethe prosecution presented irrelevant and highly prejudicialevidence that defendant had two abortions. People v. Ehlert, 274 Ill. App. 3d 1026 (1995). On remanddefendant chose a benchtrial. The trial court found defendant guilty of murder. Onthis appeal, defendant argues that the prosecution failed toprove that the child was born alive, that defendant performed anyact after the birth to cause the death, or that defendant had themental state necessary for murder. Because we find the evidenceinsufficient to prove live birth, we reverse the conviction.

On August 21, 1990, defendant gave birth in her bedroom, inthe home she shared with her two sons, her father, and herfiancé, Steven King. Two days later employees of the Salt CreekPark District discovered the baby's corpse in a nearby lake. Acreek that ran behind defendant's house fed into the lake.

Police contacted King on September 6, 1990. King told thepolice he thought he heard a baby cry in defendant's bedroom forone or two seconds on August 21, 1990, while defendant was givingbirth. Police talked with defendant on numerous occasions overthe next few weeks. Defendant made contradictory statementsconcerning the birth. A grand jury indicted defendant for themurder of her baby.

On retrial, as at the original trial, the prosecutionpresented several witnesses who testified that between April andmid-August 1990, defendant repeatedly told them she was notpregnant. She told the witnesses, including King, that she had acancerous tumor and she had seen several doctors about it. OnAugust 17, 1990, defendant told King that a doctor discovered shewas pregnant, but the fetus was dead, and the doctor gave her ashot 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. onAugust 21, 1990, defendant woke King up and told him she was inlabor. She screamed in pain. King began pacing the hallway. About 30 minutes later, while defendant was still screaming, Kingsaid he would call for an ambulance. Defendant told him not tocall because the labor was almost over. A few minutes laterdefendant asked King to get a plastic bag. King testified thathe heard a baby cry for two seconds as he went to get the plasticbag. He admitted on cross-examination that he told police onlythat he thought he heard a baby cry.

King testified that he went to the bedroom door to givedefendant the bag. Defendant then crossed the hallway to thebathroom, carrying nothing. After five minutes defendantreturned to the bedroom. She came out carrying the plastic bag bythe top. King swore that he heard nothing from the bedroomduring the five minutes the newborn was alone in there. He sawno signs of motion in the bag when defendant took the bag fromthe house. When defendant returned, she said she put the bag inthe 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 15weeks old and flushed it down her toilet. Police told her theyhad talked to King. She said she threw the miscarriage in thegarbage, then she said King threw it in the garbage. When theysaid King told them a different story, she said she did notremember what happened, but King's account was probably truebecause "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 thebirth, when she fell while trying to retrieve her son's toy froma tree in her yard. She put the fetus in a garbage bag and leftthe bag by a tree near the bank of the creek out back. When theyasked if she threw the bag into the creek, she said, "No, unlessyou want me to say I did it, then I did it." She asked to havethe baby buried next to defendant's mother. In another interviewdefendant told police that her ex-husband, not King, fathered thebaby late in 1989. She admitted that she had sexual relationswith her ex-husband frequently in November 1989.

A few days later defendant called the police and said shecould not live with herself, and she wanted to tell them thetruth. She asked them to assure her King would take care of herchildren if she went to jail. Later she told them that when shewent to the bathroom after delivering the dead fetus, King wentto the bedroom, picked up the bloody towels and the baby andthrew them out.

Dr. Mitra Kalelkar, assistant chief medical examiner forCook County, admitted that when she completed the autopsy shecould not determine to a reasonable degree of medical certaintythat the baby had been born alive. She found no unusual cause ofdeath, so her "suspicion was that the baby drowned." Theprosecutor asked Dr. Kalelkar directly whether, at the completionof the autopsy, she "form[ed] an opinion within a reasonabledegree of medical certainty as to whether or not the baby wasborn alive?" Dr. Kalelkar answered:

"[A]t that time I had a suspicion that this babywas born alive and that the cause of death would bedrowning; and pursuant to that suspicion, which Irelated to the police officers, I instructed them toinvestigate further."

She later reiterated that after the autopsy she told police she"could not tell for sure whether it had been born alive."

After police advised her of their investigation, sheconcluded in December 1990 that the baby had been born alive andit had drowned. She relied on evidence that defendant had liedto several persons about her pregnancy and her visits withdoctors, and, most particularly, she relied on King's statementto police that he thought he heard a baby cry.

Dr. Kalelkar testified that she saw no evidence in thedecomposing corpse of any natural disease process. She found airin the lungs, hemorrhage on the skull, and some blood on theumbilical cord. She admitted that the air she found in the lungscould have resulted from decomposition rather than breathing. She also admitted that "[t]here is no specific way of tellingwhether that rip [of the umbilical cord] was ante mortem orpostmortem." Blood may remain in the umbilical cord after thebaby dies. While the hemorrhaging suggested that the baby wasalive when the head went through the vaginal canal, it did notshow that the baby survived the birthing process.

On cross-examination Dr. Kalelkar admitted that a baby coulddie due to partial placental abruption. The baby could go intoshock if it lost 60 milliliters of blood in the birthing process. Defendant presented two pathologists. Both agreed with Dr.Kalelkar that the autopsy findings could not support a finding toa reasonable degree of medical certainty that the baby was bornalive. Dr. John Pless testified that the hemorrhage on the skullcould occur even if the fetus had already died. If placentalabruption killed the fetus shortly before delivery, one wouldexpect findings like those present here. A fall from a treecould cause the placenta to detach from the uterine wall, and thedetachment could cause fetal death. The force of the fall neednot be great if the trauma occurred at a place that maximizedimpact on the placenta. The baby could also have died from bloodloss in the birthing process or obstruction of the airway. Waterand bacteria probably would have eliminated any mucus plugs thatmight have caused asphyxiation.

But Dr. Pless also agreed with Dr. Kalelkar that no marks onthe body showed disease or physical injury. Decompositionprobably would have eliminated any evidence the baby died frominfection. He also agreed that a newborn faces a greater risk ofdeath from asphyxiation or blood loss in an unattended home birththan in a hospital delivery.

Dr. Robert Kirschner found sufficient evidence to concludethat the baby was alive when labor began, but he found theevidence insufficient to show that the baby survived labor. Evenif the baby was alive at birth, it may have died from failure toclear its airways, blood loss or infection. He said that if achild had marked respiratory distress at the time of birth, itmight give a feeble cry, then die. He agreed with the prosecutorthat a cry would show live birth.

The court expressly found credible King's testimony that heheard a baby cry, and that testimony together with the medicaltestimony led the court to conclude that the baby was born alive. The court did not comment on the medical testimony that the babymay have died after a live birth from various noncriminal causes,and the court drew no conclusions about what acts caused thedeath. But the court found that defendant committed murder andsentenced her to 30 years in prison.

On appeal defendant argues that the evidence does notsupport a finding beyond a reasonable doubt that her baby wasborn alive. We review the evidence in the light most favorableto the prosecution to determine whether any reasonable trier offact could have found live birth beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985).

Our supreme court in People v. Greer, 79 Ill. 2d 103, 111(1980), clarified that Illinois has adopted common law standardsfor determining whether a baby was born alive. If the babyexpires during birth, it cannot be the victim of homicide. Greer, 79 Ill. 2d at 111. The prosecution must prove that themother completely delivered the baby alive and the babyestablished a separate and independent life. People v. Bolar,109 Ill. App. 3d 384, 390 (1982); see 410 ILCS 535/1(5) (West2000).

Here, the prosecution's medical expert agreed with defenseexperts that the physical findings alone did not prove live birthto a reasonable degree of medical certainty. Many difficultiesmay arise in the birthing process that could kill the baby priorto complete separation from the mother, and an unattended homebirth aggravates the possibility of such death. In reaching herconclusion that the baby was born alive, Dr. Kalelkar relied onKing's statement to police that he thought he heard a cry. Although Dr. Kalelkar also recited evidence that defendant didnot want the child and lied to neighbors about the pregnancy, shedid not explain why an unwanted child would have a better chanceof surviving the birth process or how that evidence in any wayshowed live birth.

But King testified that he heard the cry for about twoseconds, shortly after defendant told him the labor was almostover. He did not see the baby when he heard the cry. He heardno sound and saw no movement from the bedroom during the fiveminutes after birth when defendant left the baby alone in theroom, while she went to the bathroom to clean herself. Moreover,King admitted that he was less than certain when he first spoketo police, as he told them only that he thought he heard a cry.

In several cases courts applying the common law have found asingle cry insufficient to prove live birth beyond a reasonabledoubt, because the baby may breathe during the birth process,before completed delivery. Shedd v. State, 178 Ga. 653, 173 S.E.847 (1934); Morgan v. State, 148 Tenn. 417, 256 S.W. 433 (1923). In Shedd the pathologist testified that in his opinion the childbreathed. But the reviewing court found no evidence breathingtook place after separation from the mother, so the courtreversed the murder conviction.

The facts of Lane v. Commonwealth, 219 Va. 509, 248 S.E.2d781 (1978), are distinctly similar to the facts at issue beforeus. In Lane the doctors found air in a newborn's lungs and nosigns of a cause of death, so they concluded that the baby haddrawn breath and that it had been born alive. When police foundthe baby's corpse in a garbage bag, the defendant, returning fromher honeymoon, initially denied knowing anything about the baby. Confronted with evidence tying her to the baby, she admitted thatshe gave birth but said the baby showed no signs of life. Thecourt, in reversing the manslaughter conviction, observed that noevidence showed the baby achieved a life separate from that ofthe mother. Lane, 219 Va. at 515, 248 S.E.2d at 784.

Courts applying the common law have reached differingconclusions about the use of confessions and abuse of the corpseas evidence of live birth. In People v. Hayner, 300 N.Y. 171, 90N.E.2d 23 (1949), the defendant admitted that he impregnated hisdaughter and he strangled the baby with the umbilical cord withinminutes of the birth. But the prosecution's witnesses, thebaby's mother and grandmother, swore they never saw the baby orheard it cry. The prosecution's medical expert found no signs oftrauma or disease sufficient to explain the death, and heconcluded from the expanded lungs that the baby had been bornalive. On appeal from the murder conviction, the court held thatthe medical testimony amounted to conjecture, because otherconditions could cause the lungs to expand. Hayner, 300 N.Y. at176, 90 N.E.2d at 25. Despite the confession, the court reversedthe conviction because the prosecution failed to prove livebirth.

The court in Morgan also reversed a conviction for murderinga baby found with a crushed skull because the evidence did notprove live birth. And the cut throat of the newborn in Berrymanv. State, 51 Tex. Crim. 192, 101 S.W. 225 (1907), did not sufficeto prove live birth.

But in State v. Collington, 259 S.C. 446, 192 S.E.2d 856(1972), the court affirmed a murder conviction, holding thatpaper stuffed into the newborn victim's mouth helped prove livebirth, because no one would stuff paper into the mouth of a babythat was already dead. A rag stuffed into the mouth of thenewborn victim in Heubner v. State, 131 Wis. 162, 111 N.W. 63(1907), also helped prove live birth.

Here the corpse bore no marks of violence or otherindications of human agency causing death. Even under thestandard of Collington and Heubner, the prosecution hadinsufficient evidence that the baby breathed after separationfrom defendant. The evidence of live birth is far weaker thanthe evidence found insufficient in Hayner and Berryman. Onecourt has rejected all of these cases, finding that live birthmay occur without complete separation from the mother, but thatcase expressly rejected the common law standards for determininglive birth. People v. Chavez, 77 Cal. App. 2d 621, 624-26, 176P.2d 92, 94-95 (1947).

The prosecution argues that Dr. Kirschner conceded that ifthe baby cried, then it was born alive. But Dr. Kirschner didnot testify that a cry proved the baby survived the entirebirthing process. He did not deny that babies may cry prior tocomplete separation from the mother. Dr. Kirschner apparentlywould consider a baby to be born alive if it breathed and criedwhile partially separate from the mother. But the common lawrequires proof of life after complete separation from the mother. Dr. Kirschner's testimony shows only that he applied a definitionof live birth different from the common law definition of livebirth.

The prosecution relies on defendant's incriminatingstatements as proof of live birth. Defendant told police thatKing threw out the bag holding the baby, and she suggested thatif he said he heard a cry, he must have heard it while throwingit out, when she could not hear it. She also asked to have thebaby buried next to defendant's mother.

We do not see how the burial request supports an inferenceof live birth. A woman may acknowledge her stillborn baby as apart of her family and wish to have it buried with her family.Defendant suggested the time at which King might have heard a cryin response to police officers telling her that King said heheard a cry. Neither then nor at any other time did defendantstate or even suggest that she ever heard a cry or saw the babymove.

That absence from defendant's statements sharplydistinguishes this case from People v. Ryan, 9 Ill. 2d 467(1956). In Ryan a nurse gave birth at home, wrapped the baby ina towel and left it in an overnight case for two days beforeburying it. The pathologist testified that in his opinion thechild had breathed. A jury found the defendant guilty ofinvoluntary manslaughter. Our supreme court affirmed, relying inpart on the defendant's statement that she heard the baby cry andsaw it move before she wrapped it in the towel. Ryan, 9 Ill. 2dat 473-74.

The record in this case includes no observation from anywitness and no statement from defendant that the baby ever movedor cried after completion of the birth process. All of thepathologists agreed that the physical evidence was consistentwith death during birth, just as it was consistent with livebirth. The prosecution's pathologist found that the baby hadbeen born alive because a witness thought he heard it cry for oneor two seconds. But the single, short cry the witness thought heheard, if it occurred, may have occurred before completeseparation from the mother, and therefore it is not sufficient toprove live birth. Because the evidence cannot support a findingbeyond a reasonable doubt of live birth, we must reverse theconviction.

Reversed.

GORDON, P.J. and COHEN, J., concurring.