*1 arrest individual does not arise from merely particular the existence of cause arrest another probable person of that individual. company Creach,
As to defendant we reverse the portion court his which reversed con- appellate judgment viction, and affirm the circuit court. judgment As to defendant court Ruppert, appellate judg- ment, his conviction for re- reversing remanding trial, is affirmed. court
Appellate part affirmed and reversed in circuit part; court in part. affirmed (No. 51214.
THE PEOPLE OF ILLINOIS, THE STATE OF Appellee, GREER,
v. ALAN Appellant. Opinion February Rehearing 1980. denied filed March 1980. *4 MORAN, concurring part dissenting JJ., CLARK and part. Reid, H. Defender, and Robert E. Deputy
John Davison, First Defender, Assistant Office Defender, State Vernon, of Mount Appellate for appel- lant. Scott,
William General, of Attorney Springfield, J. and Donald Lowery, State’s Attorney, Metropolis Noel, B. Melbourne A. (Donald Mackay, Sandra L. Jr., Devine, Notkoff, Rotert, B. L. Carolyn Mark and Casimir Bartnik, General, Assistant Attorneys Chicago, J. for the counsel), People. *5 Defender, Public Doherty, Chicago (Robert
James J. Isaacson, Moran, P. Aaron L. and Thomas Meyers John Defenders, Public amicus Assistant curiae. counsel), delivered
MR. UNDERWOOD opinion JUSTICE of the court: Greer, in defendant,
The Alan was charged separate her with the murders of Sharon Moss and informations was of both fetus. He found murders guilty 8½-month-old in the court of Massac and was County circuit jury direct to death. The case is before on sentenced us appeal. VI, art. sec. Const. 4(b). defendant at from the mental condition of the Apart are not dis- of the facts this case time killings, in record indicates that Alan Greer enlisted puted. and was soon hospitalized, Army diagnosed and, half a after year approximately schizophrenic enlistment, time he has was Since his discharged. Veterans been treated several Administration hospitals, disability, receives pension complete government and been doses has taking relatively large psycho- Thorazine, Valium and Artane pre- tropic drugs that defendant would also indicated scription. Testimony he drank while drugs. become “wild” when taking much of On spent January At and beer. tavern in whiskey day Joppa drinking and he left the tavern to home go p.m. approximately however, he tavern, feed Before his leaving pigs. “beat the hell he was home to said that allegedly going out of oldmy lady.” his he and fed
After defendant arrived home pigs Moss, had been his who with Sharon argued girlfriend, fists, kicked He then beat her with his with him. living feet, broom her and struck her with with his repeatedly broke the course stick during beating. which Moss Sharon does not establish when clearly evidence he knew had her injured severely died. Defendant her that but the next tried to care for morning evening, he dead. A when summoned she was pathologist help He also died as a of the testified that she result beating. carried fetus she testified gestational age 8½ died from months, the fetus approximately death occurred its effects beating, of, before, a few hours or at the death either within Moss. Sharon trial defense
At counsel attempted prove *6 at the defendant was insane the time of but objec- killing, to the of clinical tions proffered opinions psychologists the trial were sustained Instructions were by judge. given defenses, however, the on and intoxication jury insanity and defense counsel as to both. extensively argued decided to the death and the
The State seek penalty, defendant elected a At the without jury. proceed that the the trial concluded sentencing hearing judge a that the State had reasonable doubt proved beyond defendant had taken intent to kill two lives with the Rev. Stat. ch. The court par. (Ill. 1(b)(3)). 9 — also decided that the defendant’s three misdemeanor prior that did not have a convictions Greer precluded finding of criminal Rev. Stat. significant history prior activity (Ill. Further, ch. the court con par. 1(c)(1)). 9 — that defendant cluded not under the influence was or he extreme mental emotional disturbance when com the murders mitted Rev. Stat. par. found that had an State Having proved 1(c)(2)). 9 — factor doubt and that reasonable beyond aggravating factors none were statutory mitigating present, the trial the death sentence. judge imposed in of conten-
Defendant raises a multitude appeal tions of which need considered: only following whether of a fetus constitute murder may killing (1) law; Illinois whether the death was penalty (2) case; the facts in this whether properly imposed, given (3) the death of the the introduction evidence concerning error; reversible whether State’s constituted (4) error committed reversible Attorney mentioning enter statement defendant’s his attempt opening at whether State’s plea arraignment; guilty (5) the substance failure defense counsel with provide reversal; the defendant an oral statement requires received effective assist- whether the defendant (6) on these ance of counsel trial. Our decisions questions the defendant’s other contentions moot. render unborn constitute of an fetus may Whether killing in Illinois. murder first question impression Ryan this court held in People 9 Ill. Although delicti corpus in that for infanticide alive, that that child was born holding cludes proof Ryan the acts does not this case dispose the birth constituted homicide followed allegedly had been child. The defendant contended infant dead the acts stillborn and therefore when already had the burden were so State performed the child had been alive when the proving however, case, acted. In instant pathologist’s Greer when the fetus was alive indicates testimony *7 Moss, and Greer does not attacked question Sharon issue, therefore, is whether commission The point. before its birth in the death of a fetus acts which result constitute murder. may to that proper
The answer depends upon question the homicide statute. Section construction 1(a) 9 — 38, 1977, ch. Code of 1961 Rev. Stat. the Criminal (Ill. kills an who provides person par. 1(a)) “[a] 9 — commits murder without lawful individual justification rather than use the word “individual” ***.” The is not victim significant; designate “person” merely drafters two words are synonomous, the other one used designate perpetrator to avoid confusion. the victim in order (Ill. designate Comments, 1, at Stat., Committee Ann. ch. par. 9 —
111 17 comments, committee (Smith-Hurd 1979).) however, also indicate section codifies 1(a) 9— and the common law decisions of this court. prior Stat., Comments, Ann. Committee par. 9— 17 Since this court has not (Smith-Hurd 1979).) us, considered now before we previously question must turn to the an common law to determine whether unborn fetus is an “individual” within the of our meaning homicide statute.
At common law of a fetus was not murder killing unless the child was born alive and then as a result expired Coke, injuries sustained. previously Institutes (3 *50; Blackstone, *129-30; 1 Hale, Commentaries 1 Pleas of the Crown 433 This rule may (1800).) produce ap- results on the parently incongruous depending precise time when If the fetus survives expires. long to be born and take a breath, the defendant enough single If, committed however, homicide. the fetus expires during birth, or before, just homicide has not occurred. Some States have avoided this anomaly by expressly including fetus within definition victims of homicide or by feticide statute. passing separate Penal e.g., Cal. (See, Code sec. 187 Mich. (Deering Laws Ann. 1971); Comp. sec. In the 750.322 absence such (1968).) legislative enactment, however, no court of last resort this country has held that of a fetus is murder killing unless fetus is born alive and then See, Keeler v. e.g., expires. Superior Court Cal. 3d 470 87 (1970), P.2d 481; Cal. State v. Rptr. Gyles 799; 313 So. (La. 1975), 2d v. State Brown 916; (La. 378 So. 1979), State Dickinson Ohio St. 599; 275 N.E.2d v. State Morgan 148 Tenn. 433; S.W. State v. Larsen (Utah 1978), P.2d 1280. contends, however, State the born-alive
rule in the common developed law reflected the simply medical Given inadequacies contemporary knowledge. infant rates in the mortality 18th high prevalent *8 112 and the lack of medical judges
century knowledge, the common law were unwilling who formulated of a rationalized consider fetus murder killing a the fetus would that result by creating presumption Cal. Superior die in childbirth. Court 2 (Keeler 619, 643, 617, 633, 470 497 87 Cal. Rptr. P.2d Birth, and Atkinson, Life, J., citing (Burke, dissenting), Live-birth, Rev. 134 L.Q. Although (1904).) law, fetus was homicide common killing of a child as a abortion was punished “great quickened *50; Coke, Blackstone, Com Institutes misprision.” (3 law also mentaries The common protected *129-30.) of the child in a of other ways. unborn variety rights take devise and The unborn child could property succession, and the a life intestate child was considered Rule Perpetuities. being purposes Against Abortion, and the Practice Medicine (Louisell, Law, Process L. Rev. Due 16 U.C.L.A. Moreover, maintained Blackstone (1969).) *** ife begins contemplation
general proposition “[l] in the mother’s as an infant is able stir of law as soon Blackstone, The State Commentaries womb.” *129.) (1 law’s re the medical for the common basis argues no of a fetus luctance as murder the killing punish reached the A fetus which has stage exists today. longer to be about months six viability, thought generally of survival has upon premature high probability age, the fetus as a distinct birth. Modem medicine regards which it has a circulatory system individual since separate the mother’s. The State concludes does not intermix with of via therefore that a fetus which has reached age statute. homicide should protected bility the advances in medical its To illustrate argument viable the last 100 years require knowledge during human as an being, fetus be independent recognized in this tort law State development points In the last part century during greater century. *9 of the first half of this American courts century uniformly refused either to allow a child to sue for sustained injuries before birth or to allow the to maintain survivors a wrong ful death action based on the death of a fetus. e.g., (See, 14; Dietrich v. Northampton 138 Mass. Allaire (1884), v. 359; Luke’s Hospital St. 184 Ill. see also W. (1900), Prosser, Torts sec. 55 ed. and cases cited (4th 1971) therein; Abortion, Louisell, The Practice and Medicine of Law, Process Due 233, 16 U.C.L.A. L. Rev. 240-43 Allaire, and cases cited In Mr. (1969), therein.) Justice marshaled the medical evidence for Boggs, dissenting, a viable fetus as human v. regarding St. being (Allaire Luke’s Hospital 184 Ill. 368-74 (1900), J., (Boggs, and most of the States in the in dissenting)) country, one, have cluding his subsequently adopted Prosser, W. reasoning. Torts sec. 55 (See ed. (4th 1971) cited cases This court has therein.) particular allowed a child to sue for prenatal injuries (Renslow v. Mennonite Hospital and, 67 more (1977), 348), has allowed a importantly, death action for the wrongful death of a fetus due to sustained while the injuries fetus was viable v. 501; Smith 71 Ill. (Green Chrisafogeorgis 55 Brandenberg Ill. 2d 368). State the same argues which problems underlay reluctance the common law to consider the killing of a fetus as murder were also the basis a similar re luctance to extend tort remedies encompass prenatal Since this injuries. court has discounted those problems in the tort area and held has that a viable fetus is within the of the “person” Death Act meaning Wrongful Rev. Stat. ch. the State (Ill. pars. 2), argues that we should also that a viable is an recognize fetus “individual” under the homicide statute.
The State also contends that intended legislature viable fetuses under the protect homicide statute. The State’s First, twofold. reasoning many develop- ments in tort law fetus, viable as well as protecting advances, medical had occurred significant when the General enacted the Criminal Code of 1961 Assembly Rev. Stat. ch. 1 — 1 to (Ill. pars. 2). 43 — General must have been aware of these Assembly develop and, ments must have considered a viable consequently, a human the homicide being protected Second, statute. the General has declared Assembly section Illinois Abortion Law Rev. Stat. “the unborn child par. 21) 81 — is, is a human from the time being conception therefore, the unborn legal person purposes child’s to life and is entitled to the to life from right right the laws and Constitution this state.” conception *10 the advanced the have Although State arguments by merit, considerable we cannot concur in its conclusion. The extent to which the unborn child is to be accorded the of one status born is one of the most legal already time, of debated our and one to do which we questions not find consistent the As State any completely response. out, the of tort law have remedies points protections unborn, to include the to a sometimes expanded subject standard other not. viability times Doubtlessly unborn also substantial under law enjoy rights the other On hand the United States property. Supreme unborn, viable, Court has held that whether not are or not the fourteenth amendment to persons protected by Wade United States Constitution. (Roe 113, 158, 147, 180, 410 35 U.S. L. Ed. 93 S. Ct. Furthermore, a woman’s constitutional to right her the State from with privacy prevents interfering fetus, decision to abort even previable though v. Wade Roe decision results in its death. ordinarily 410 U.S. 35 L. Ed. 93 Ct. 705. S. these tendencies Equally significant, opposing in and not others some instances in protect have coexisted. law that common long protected certain fetus also declined property rights apply destroyed for homicide to one who the penalties ex- noted, which have earlier American courts fetus. As also, have tort to fetuses tended the benefits of law inclusive statutory language, absence specifically rule born-alive refused to change uniformly cases, criminal four of them within last 10 We years. law and do not tort between imply divergence law is criminal inconsistent. necessarily Differing objec- tives and considerations in tort and criminal law foster of different the same development principles governing Prosser, factual ed. situation. W. Torts sec. 2 (4th 1971); Scott, LaFave & A. 11-13 W. Criminal Law sec. (1972). indicated, as earlier
Although, State’s argument the intentional destruction aof viable fetus should in the included definition of murder well be might General the fact is that a con adopted Assembly, intent is manifest. The trary clearest of this intent example lies in 5 and sections the Illinois Law Abortion *** amended “An Act amend (as ***,” ‘Illinois Abortion Law 1975’ enacted October cited as 1979) (hereinafter Section Act). 6(2) “The provides: law of this state shall be construed human any aborted alive is not an imply being individual under the ‘Criminal ***.” Code 1961’ of a fetus aborted alive therefore, be killing may, punished murder section 9 — 1 of the Criminal Code *11 1977, 38, Rev. Stat. ch. the (Ill. par. Although 1). 9 — of fetus alive murder, aborted be as killing may punished none the of other offenses created the be Act may more Thus, than a Class punished anything felony. section of the Act the intentional 5(2) punishes per of an formance abortion on a viable fetus as a Class 2 even if the abortion kills the if felony, fetus. Similarly, intentionally terminates physician pregnancy knowing the fetus and is viable the fetus dies because the failed to take the physician intentionally life-support in- that would if the fetus were measures employed aborted, born rather than then the tended to be physician Class but to the extent of a is criminally culpable only murder, not under section Act. felony, 6(1) If the General aware when it enacted Assembly our statute the extensive homicide unborn enjoy in the law of tort and it was also aware rights property, law of under the common law and the decisional the crime of homicide does not country encompass the death of a the is born alive fetus unless fetus causing Nevertheless, the General expires. subsequently declined include the unborn Assembly specifically or to create within the victims homicide potential of feticide. We cannot alter that decision offense separate or offense. Rev. ch. create new Stat. par. (Ill. unborn in the After status considering 1 — law, the uniform courts common decisions States, in our sister and the attitude toward last resort statute, reflected in our abortion we conclude unborn life of a not our fetus murder taking statute unless is born alive and subse current as a result of the inflicted. injuries quently expires an issue here is the death Also propriety Predicated on the failure estab penalty. proof that defendant intended to kill two Rev. lish people (Ill. and the effect Stat. ch. upon par. 1(b)(3)) 9 — an extreme mental or disturbance him of emotional (Ill. has con Rev. Stat. ch. State par. 1(c)(2)), 9 — to the death that confession fessed error as While penalty. us, need not here does not bind we consider its propriety have of a fetus since we decided may killing from this constitute murder. That conclusion removes factor Rev. Stat. case multiple-murder aggravating relied trial par. upon 1(b)(3)) 9 — death court precludes imposition penalty. The third before us is whether introduc question of evidence the death of the fetus was so tion concerning
117 as to the defendant a fair trial. That prejudicial deny evidence consisted of the testimony pathologist and cause of death of concerning age, development, fetus, and the introduction of a slide showing fetus still within uterus which had been removed and cut to reveal the fetus. it is the function open Ordinarily of the trial value and judge weigh probative poten tial effect of such evidence and his decision prejudicial will not be reversed absent an abuse of discretion. v. Myers 331; 311, 35 Ill. v. People (People 2d (1966), 124; v. Kolep 116, Ill. People 29 (1963), 2d Jenko 410 Ill. Even that none of (1951), assuming this evidence was admissible for other than any purpose one of fetus, the death of the improper showing new trial is not unless the defendant has been required v. Speck prejudiced 41 Ill. (People 2d (1968), 202-03, rev’d to death penalty 403 U.S. (1971), 2279; L. Ed. v. S. Ct. People 2d Jenko 410 Ill. We do not believe that (1951), 482). preju dice been has It established. would have been difficult very this case without try the death of the fetus. revealing The admissible and testimony evidence con photographic the death of Sharon Moss cerning indicated that clearly she was near the end of her very pregnancy child she carried had not survived. This information would have reached the even if evidence jury directly concerning the fetus had not been The slide in presented. question one of nine items of only evidence photographic trial, at the no presented means most gruesome The other items among group. demonstrated the cause Moss’ Sharon death and the of force used degree against her v. 124; Kolep (People People (1963), v. 482; 410 Ill. People Kirkpatrick Jenko 70 Ill. and their App. 176), admissibility is not We do not believe that challenged. the slide simply had effect any appreciable beyond the admissible evidence to the engendered relating death Sharon Moss. also State’s Attorney’s open-
Defendant urges statement, which informed jury ing fair had once denied him a attempted plead guilty, *13 counsel, at- defendant, The the advice of trial. without to at the his but judge plead arraignment, tempted guilty to to the counsel refused and plea appointed accept record not contain a by him. The does statement represent the the he refused to the reason accept judge indicating the at but defendant’s statements arraignment plea, guilty time, the of and that raised possibility incompetence and indicated of intoxication also defenses potential the said In statement his insanity. opening prosecutor that he had to that defendant attempted plead guilty, he Moss, that that he had killed and admitted Sharon the of raise defense Defense would probably insanity. for a new and moved objected counsel unsuccessfully of effort to introduce a trial. A transcript subsequent the to show the arraignment attempt plead guilty denied. was the which the a
Informing jury guilty prior plea has either or allowed the defendant court rejected our Rule Ill. R. violates withdraw 402(f)) 2d (73 402(f) to be condemned. when the commission and is Ordinarily, men the is any of the acts defendant disputed, by alleged or of a withdrawn tion by previously prosecution People new (Cf. would a trial. rejected guilty plea require v. Bain People Haycraft 909; Ill. 3d App. Here, however, un 76 Ill. it was App. Moss, that defendant killed only Sharon disputed he criminally issue whether being responsible At the same time that informed his acts. prosecutor of the he also said defendant’s jury rejected plea guilty and that defendant admitted Sharon Moss killing and he wanted the defendant was raising said help these an defense. The statements insanity import but the defendant admitted acts denied responsi- do not believe that denied him fair We trial. bility. It is also failure argued prosecution’s our rules entitles the defendant with comply discovery new trial. trial court defendant’s granted pre alia, trial motion inter which discovery requested, substance oral statements any made defendant and known to such State a list witnesses to statements. R. The State knew that (65 412(a)(ii).) Linda Lewis was the tavern defend where the present ant had been on and also drinking day killing that she knew claimed the defendant had said he had to home before dark to feed get his pigs that he intended to home and “beat the hell go out his old lady.” State Linda Lewis’ name in provided list trial witnesses but did not potential provide substance the above statements. Nor did it indi cate of oral any statements knowledge or that Linda Lewis was witness to them. Linda Lewis *14 married, subsequently her name to Linda changing Creemens, and the State listed her new name the State’s among trial in an potential witnesses amended list five before days trial.
In his statement, opening he said that prosecutor would introduce defendant, testimony before the tavern in he leaving said was to home Joppa, going feed his before dark. The pigs defendant objected mistrial, a moved for which the trial denied. judge then offered prosecutor to let the defendant interview Creemens before she stand, took the declined, but he such saying interview hasty was not an adequate substitute for a thorough investigation alleged Linda statement. Creemens testified as the State’s first witness to the defendant, statement earlier-quoted who a mistrial again sought In which denied. his argument, referred to closing Creemens’ prosecutor testimony.
The defendant was to entitled clearly substance 120 statement, to
this oral list of the it witnesses (65 v. 55 Ill. People Ill. R. Szabo 2d 412(a)(ii)); (1977), 3d but failure to them does App. provide 871), in all instances necessitate a new trial. Noncompliance reversal does not with discovery require requirements v. absent a Steel showing prejudice. (People (1972), 442; 392; v. Ill. Ill. 40 People Raby 52 2d 2d (1968), are not v. Welch Ill. We con People 2d (1961), 558.) ex here with failure to cerned disclose potentially v. Nichols e.g., People evidence culpatory (1976), (see, Ill. does statement nor undisclosed 443), 2d e.g., People defendant’s testimony contradict (see, v. 55 Ill. Defendant Szabo pre App. (1978), 866). no evidence of sented circumstances pertaining which would render it inadmissible. only statement the non suggested prejudice him from investi disclosure of statements prevented and from Creemens’ as witness reliability Linda gating the other at tavern witnesses present interviewing had heard the statements. ascertain whether else anyone name However, defendant had been Linda Lewis’ given of the others at the tavern several and the names present trial, name five and her married days months before beforehand, there so was ample opportunity to trial. has made interview those Defendant persons prior no to demonstrate the other effort any persons Linda the tavern would have contradicted present People Creemens’ O’Hara testimony. (Cf. was not Ill. Creemens’ Finally, testimony 466.) defendant’s conviction. essential support (See, v. Coslet People Considering e.g., circumstances, believe the defendant’s claims these we *15 too nebulous a new trial. justify prejudice the defendant received The final is whether question of a effective assistance counsel. inadequacy him to new trial his trial counsel entitles if defendant’s counsel was reflected actually incompetent, appointed
121 in the of his duties as trial performance and if attorney, substantial to the incompetence produced prejudice defendant without which the result the trial would have been probably different. v. Goerger (People (1972), 403; Ill. v. People Dudley 305; 52 2d 46 Ill. 2d (1970), v. People Georgev 38 Ill. v. Morris 165; People 2d (1967), 3 Ill. 2d defendant (1954), we urges replace this standard with one which the defendant’s requires trial representation “minimum satisfy professional standards for reasonably competent representation.” A number Federal courts of have appeal adopted a similar standard v. Fitzharris e.g., Cooper (see, (9th 1325; Cir. 586 United v. F.2d Bosch 1978), States (1st 1113; Cir. 584 United ex rel. 1978), F.2d States Williams v. Twomey Cir. 510 (7th but F.2d 1975), 634), latest to consider declined to do question so (United States v. Decoster Cir. (D.C. July 1979) (en banc), Crim. L. 25 Rptr. 48 U.S.L.W. cert. denied 444 U.S. L. (1979), Ed. S. Ct. and the United States Court has declined to 302), Supreme address issue. We considered this most recent question Ill. ly People Murphy and refused our standard. As we have stated change previously, defendant is entitled to competent, perfect, representation (Pe v. Berland ople and we 2d 286), do not believe that the Constitution a new trial requires every trial, whose counsel errs at particu in the absence of a larly demonstration the outcome of a new trial would probably different. We therefore reaffirm our standard set forth above.
The defendant that he argues is entitled alternatively to a new trial under our current He standard. specifies four instances which demonstrate allegedly incompe- tence of his First, counsel. counsel did not introduce expert testimony and death competency penalty Since we have decided that hearings. the death penalty not be may we do not believe imposed, counsel’s actions *16 the are As the death at penalty hearing significant. one of the two we note that psy competency hearing, that defense counsel thought by chologists employed inter the the defendant was sane when psychologist record does not indicate what him. The opinion viewed had the defendant’s other the concerning psychologist circumstances, the of these at time trial. Under sanity testimony to introduce that the decision whether expert its admissibility, the assuming competency hearing, review. of which we will not was question strategy v. People Skorusa 577. Ill. 2d (1973), defendant is the cited The second instance by failure to to two statements by prosecutor object the defense The first statement —that his closing argument. he evidence was had not any saying presented expert an could correct objection insane —was technically v. Williams been overruled (People have (1968), properly v. Norman People 522; 2d 40 Ill. (1963), 2d second told if The statement jury they 77). of returned verdict not reason of guilty by insanity recovered, and it decided the defendant had then is he would free. Later in his go closing prosecutor theme, to that the defendant returned should arguing not be set free to do not believe his crimes. We repeat defense counsel’s these statements handling did actual Defense counsel demonstrates incompetence. to the reference to the effect first object prosecutor’s a verdict of not reason The by insanity. guilty trial court and instructed sustained objection The failure to object remark. jury disregard reference have been a tactical decision second may v. Newell (People which we not review. will (1971), v. Martin People 382; 489; 44 Ill. 48 Ill. 2d 2d (1970), v. Wesley People 214; Dean People 31 Ill. defendant alterna 30 Ill. argues as to con these remarks were so tively prejudicial stitute error. The remark plain expert concerning Moreover, not error since it was true. testimony trial disregard prose- instructed jury judge a verdict cutor’s remarks concerning guilty is We do not believe reversal required. reason insanity. third instance incompetence alleged failure interview all counsel witnesses before the trial and his consequent ignorance the nature of Linda testimony. Creemens’ concerning *17 to failure interview witnesses indicate actual may v. Witherspoon 55 Ill. incompetence (People 2d (1973), when the are to particularly witnesses known trial 18), counsel and their v. testimony may exonerating (People Stepheny case, 46 Ill. In however, 2d (1970), 153). the defendant does not to favorable any point potentially which his trial testimony counsel failed to investigate, nor does defendant contend would have anyone contradicted Creemens, of Linda or testimony her could have been testimony excluded. defense Although counsel have been may Creemens’ testi surprised there has been mony, no of a effect showing prejudicial without which outcome of the trial would probably have been different.
The final instance of is defense alleged incompetence counsel’s failure to introduce psychiatric testimony trial the defendant’s concerning mental condition. Defense counsel clinical procured psychologists testify concern the defendant’s ing condition, mental court, but the trial on v. People Noble relying Ill. refused (1969), 2d to allow them an express independent expert opinion on the defendant’s sanity. Counsel to have sought their psychologists express witnesses, as opinion lay but the trial court held a foundation had not proper been laid. Although were not allowed to psychologists an one express opinion, them testified as to the matters he would have used as a basis for his He opinion. recounted the defendant’s history psychological prob lems and use, prescribed drug defendant’s appearance interviews, effect of and the
and mannerisms during an with the defendant’s medical alcohol individual upon use. history drug testi also introduced considerable
Defense counsel the defendant’s charac witnesses lay mony by concerning the de his into well as ter and tendency fly rages, record, medical and the trial instructed fendant’s judge the evi on defense. Considering jury insanity introduced, with the dence that was argument together instructions, that defendant has we believe of the trial would the outcome shown sufficiently testimony have been different had psychiatric probably had burden proving been introduced. The State sane once the defendant has raised an properly issue toas his sanity. Rev. Stat. pars. 3—2, .) Expert is not testimony raise necessary 6 — 4 issue. People v. 247; Childs Ill. People (1972), 558; Manning v. Lono People App. 11 Ill. 3d 443. App. his trial coun- short,
In defendant has not shown Despite questionable was actually sel incompetent. and interviewing testimony decisions concerning expert *18 defense this case reveals witnesses, the record in and, on his client vigorously counsel represented of in- a to whole, finding ably sufficiently preclude competency. court of the circuit therefore affirm
We judgment of defendant insofar as it found guilty County of Massac insofar Moss, reverse that of Sharon judgment the murder of girl the murder baby of guilty it found as the cause sentence, and remand Moss, the death vacate the trial court for resentencing. to in part; and reversed in part
Affirmed vacated; remanded. cause sentence CLARK, in part MR. concurring JUSTICE in dissenting part:
125 the murder of I the conviction for concur in affirming Moss, I from the reversal of Sharon but must dissent The essential conviction for the murder of the fetus. so is becomes a human here when being question This is to the law. it entitled protection is no At various to controversy. certainly question stranger doctrinal truth it has been in history promoted times anima attaches at conception (immediate humanity at and at birth tion), quickening (mediate animation) New York The Law (Means, (animation birth). of Foetus, Abortion and the Status Concerning 14 1664-1968: A Case Cessation Constitutionality, 411, N.Y.L.F. 416 No view has achieved single (1968).) time, total in the law at one acceptance any any However, seems in harmony remote our time. thought is it of one’s reason to necessary plumb depths reach the conclusion that isit for there be such a wrong our sizeable criminal law that gap person may destroy viable, 8½-month-old fetus with Even Roe impunity. 113, Wade 410 U.S. 147, 35 L. Ed. 93 S. Ct. 705, the decision which abortion to limited legalized extent, that, contained the restriction once viability occurs, the State all abortions may proscribe those except necessary the life or health of the preserve mother. 113, 163-64, U.S. 147, L. (410 183, 35 Ed. 2d 93 S. Ct. 705, 732; see an generally, Corby, “Right” Abortion, the Scope Fourteenth Amendment “Person hood,” and the Court’s Supreme Birth Requirement, 1979 S. that, court was reasoning U.L.J. once the viable, fetus is is, able to live or survive from its mother apart (Schmidt, Attorneys’ Dictionary Medicine cited in Keeler v. Court Superior Amador County Cal. 3d P.2d 87 Cal. Rptr. accord, J., (Burke, dissenting); Illinois Abortion Law of Rev. Stat. the State’s
par. interest 22(2))), life potential 81 — *19 I the believe compelling. takes on viability even argument context, force instant violent attack in the where a greater fetus. Such an attack made which destroyed be as should murder. punishable I What to be is that find particularly puzzling discusses of majority length persuasive arguments as to be a the State fetus should considered to why is merit” human concedes there “considerable being, these but the conclusion to be then arguments, rejects if from instead states drawn them. majority General intended the destruction of a to make Assembly murder, it have so in the viable could specified of we are with Illinois Abortion Law 1975. But not dealing case. the inten an abortion in this We are not with dealing of a the use of tional termination any pregnancy instrument, medicine, or other substance or any drug is, device Rev. Stat. par. 22(6)), 81 — a and with as medical performed physician procedure, Rather, consent the woman. we are here concerned attack of woman who had with violent upon person months, carried a fetus to the where for 8½ point did General viable. The Assembly fetus was fully intend for instant situation in the Illinois provide Abortion Law so there is no of course explicit here section which defines the acts involved as statutory however, mean, the Illinois That does not murder. in 1975 is of assistance no understanding Abortion Law issue General the intent of the Assembly precise Act section 1 of is involved here. On contrary, aid. vast It relevant part: provides way of a any restricting right privacy “Without or of a an right woman woman to abortion [Roe Ed. S. Ct. 410 U.S. 35 L. Wade L. Ed. 410 U.S. and Doe v. Bolton Assembly 739], of the State 93 S. the General Ct. solemnly of the do declare and find in reaffirmation Illinois State, of this the unborn child longstanding policy is, conception there being a human from time fore, purposes child’s person unborn legal *20 right right concep life and life from to is entitled to the to the laws and tion Constitution this State.” 1977, 38, par. Rev. ch. Stat. 81-21. statement, this clear and Notwithstanding unequivocal the concludes that because the Court majority Supreme has said that a fetus is not a for fourteenth amend person ment the because Illinois Abortion Law of purposes situation, 1975 does not for this factual provide precise is there no manifestation the General Assembly to intended murder. destruction fetus as punish fails to realize that majority Court’s Supreme statement does not the States from prohibit making and different separate rules which do bestow statutory status as That, course, a fetus. person upon precisely what General did in this State when it Assembly passed children, unborn legislation bestowing upon through or other guardians to personal representatives, right life 1977, Abortion Law Rev. Stat. (Illinois (Ill. 38, ch. to own Rev. par. 21)); right property (Ill. 81 — 1977, 83, Stat. ch. and the to maintain par. 12.1); right actions and recover for death damages wrongful (Pub. 946, 1, 1980, Act effective section January adding 81 — to the 1977, 2.2 Death Act Rev. Stat. Wrongful (Ill. 70, ch. 1 et It seems clear par. then that the General seq.).) did intend to law, extend the Assembly of the protection law, the criminal unborn. including Extending to, protection least, criminal law viable fetuses, would in no way mother’s upon infringe which right was the privacy of the decision in linchpin Roe v. Wade. It was stated there that right privacy absolute; is not it does trimester, not extend to the third when the fetus is to become viable. 410 presumed fully 113, 163-64, U.S. 35 L. Ed. Ct. S. 732.
Thus, I think the destruction of the viable fully in this case constituted murder. To hold otherwise is to resolve a doubt of fetal life rather against preservation it. also absolves
than in favor of To hold otherwise he cruelly herein of although any wrongdoing, fetus, the unbounded denied a viable with potential life, what rightfully belonged enjoy opportunity should countenance to it. I do not think the law Illinois such a result. dis- MORAN,
MR. concurring part JUSTICE senting part: Code of all within the Criminal
For applications ***.” “an individual defined “person” legislature effective Rev. Stat. par. 2 — Jan. *21 is Code, intent the the Within Criminal legislative 1962.) in reaffirmed Therein, clear. General Assembly, which public recognizes long-standing policy and fetus, from as human being legal conception, Stat. for of a to life. Rev. (Ill. person purpose right was ch. The sole to policy exception par. 81 — for the abortion out expressly reluctantly —and —carved States Court mandated the United Supreme provision Roe 35 L. Ed. v. Wade 410 U.S. in ruling that, but for the 147, 93 S. 705. It is Ct. my opinion of this State has recog exception, public policy single fetus a human nized and continues being, recognize an individual. person, its section of article From inception, 1(a) (Homi 9 — Rev. of 1961 Stat. Criminal Code (Ill. cide) ch. states: par. 1(a)) 9 — person
“A who kills an individual justi- without lawful fication commits (Emphasis murder ***.” added.) With clear then, that a individual, fetus is an expression fetus, one who kills a without lawful and out- justification statute, side the can abortion exception charged true with and found of murder. This guilty particularly in circumstances case where the via- instant of the 8 and bility unquestioned 1/2-month-old evidence, fact, showed Girl Moss where in Baby I be alive at the time defendant attacked Sharon Moss. would therefore affirm the defendant’s conviction for the murder of Girl Moss. Baby here, however,
Under I the facts would vacate death In the Girl information penalty. pertinent Baby Moss, the defendant was three counts with charged violation of sections (a)(2) 1(a)(1), (a)(3) 9 — Rev. Stat. He was pars. 1(a), (b), (c)). 9 — under section which contains charged 1(b), 9 — conditions of death. The requisite imposition State, fact, has confessed error in this and admits regard that, because defendant was not section charged the death should be vacated. penalty 1(b), 9 — I would therefore affirm the of the circuit judgments court murders of finding Sharon guilty Moss and Moss, Girl Baby vacate death sentence remand the cause the trial court for defendant’s re- sentencing.
(No. 51886. THE PEOPLE OF ILLINOIS, THE STATE OF Appellant, LINDGREN, CHARLES Appellee.
Opinion February Rehearing denied filed 1980. March 1980.