Opinion
ID Nos. 9804001029, 980611006, and 9805006798.
Date Submitted: November 27, 2000.
Date Decided: November 27, 2000.
Upon Defendants Motion to Dismiss: DENIED.
ORDER
This 27th day of November, 2000, upon consideration of the defendants' Motion to Dismiss counts II and III of the indictment, it appears to this Court that:
1. On March 27, 1998, Brandi Coleman was 18 years old and approximately 22 weeks pregnant. It is alleged by the State that after arguing with Coleman, Sharon Hamilton offered codefendants Terri Walston and Kelcee Jackson $50 to attack Coleman. In the course of the attack, Jackson and Walston allegedly kicked Coleman in the head and body.
2. According to the State's theory of the case, the blows suffered by Coleman caused her uterus to bleed heavily and caused her to go into labor. After several days of unsuccessfully attempting to stop the labor, Coleman delivered a male child on March 30, 1998. In the opinion of Dr. Michael Muench, an obstetrical and gynecological expert from Christiana Hospital, the baby was "liveborn." He had a heartbeat of 60 beats per minute and was pronounced dead seventeen minutes after birth. The defendants were charged with Murder Second Degree in connection with the death of the infant.
3. The defendants move to have the murder counts of the indictment dismissed on the basis that in order to be convicted of murder, the State must prove that a "person" was killed and this fetus was not a "person" as contemplated by 11 Del. C. § 222 (19). Defendants argue that the Coleman baby was not viable because it was a 22-week-old fetus, weighed a pound at birth, never took a breath, and had a weak heartbeat. Defendants contend that to consider this fetus a "person" would have the effect of amending the criminal code to change the definition of "person" to include non-viable fetuses.
4. The State concedes that the child was not viable. The State argues, however, that the fetus, regardless of viability, was "born alive" and therefore was within the definition of "person." This presents the novel issue of whether a 22-week-old fetus whose heart beats for seventeen minutes following delivery, is a "person" within the meaning of 11 Del. C. § 222 (19).
5. Defendants have been charged with Murder Second Degree with respect to the death of this fetus. Title 11 Del. C. § 635 (1) and (2) state in pertinent part:
A person is guilty of murder in the second degree when: (1) The person recklessly causes the death of another person under circumstances which manifest a cruel, wicked and depraved indifference to human life; or (2) In the course of and in furtherance of the commission . . . of any felony . . . the person, with criminal negligence, causes the death of another person.
Title 11 Del. C. § 635 (1), (2) (emphasis added).
6. The term "person" is defined in 11 Del. C. § 222 (19) as ". . . a human being who has been born and is alive . . ." Title 11 Del. C. § 222 (19)(1999). Although there is no specific reference to the intent of the legislature when section 222 (19) was passed, it would appear that the statute was intended to codify the common law "born alive" rule. In 1875, a Delaware civil case, Stout v. Killen, Del. Super., 5 Houst. 14 (1875), discussed the common law "born alive" rule. In Stout, the Court stated:
It has been held that life may exist in a newly born child without proof that it was observed to have breathed; indeed, it has been held that life may exist for a time without respiration. It is only one of the signs which manifest the existence of life. There are other signs or indications of life, among which the beating of the heart and pulsation of the arteries after the separation of the child from the body of the mother may be considered satisfactory evidence of life in the child, because they show the fact that circulation has been established in the body of the child independently of the mother, it having then no connection with the mother.Stout, 5 Houst. at 24. This common law definition of "born alive" seems consistent with Delaware's statutory criteria for a live birth under the Vital Statistics Act. Pursuant to 16 Del. C. § 3101 (6):
"Live birth" is defined as the complete expulsion or extraction from its mother of a product of conception (irrespective of the duration of pregnancy) which, after such separation, breathes or shows any other evidence of life such as beating of the heart, pulsations of the umbilical cord or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. Heartbeats are to be distinguished from transient cardiac contractions; respirations are to be distinguished from fleeting respiratory efforts or gasps.
Title 16 Del. C. § 3101 (6)(1997). This type of statute has been considered by other courts in determining whether a new born fetus was a "person" under the criminal law. See People v. Hall, N Y App. Div., 557 N.Y.S.2d 879 (1990), and People v. Bolar, Ill. App., 440 N.E.2d 639 (1982).
7. Defendants, in moving to dismiss, rely on an Oklahoma case that considered the meaning of the common law "born alive" definition of "person." Hughes v. State, Okla. Crim. App., 868 P.2d 730 (1994). In that case, the fetus was born with a weak heartbeat but had no respiration and the court declined to recognize that the fetus was born alive. The court abandoned the common law "born alive" rule and instead held that whether or not a fetus is ultimately born alive, an unborn fetus that was viable at the time of injury is a "human being" which may be subject of a homicide under Oklahoma law. Hughes, 868 P.2d at 731. The court thus judicially expanded the common law meaning of "person" to include not only a fetus born alive, but also a "viable human fetus." Ultimately the manslaughter conviction was dismissed because the court held that its ruling changing the common law had to be prospective for due process reasons. Id. at 736.
8. This Court does not find Hughes to be convincing in the context of this case. In Hughes, the court found that the evidence at trial did not establish that the fetus was "born alive" under Oklahoma common law. It had refused to extend the definition of live birth in the vital statistics act to criminal cases. In that respect, its decision runs contrary to the better reasoned Bolar and Hall decisions and the clear intent of the legislature in enacting that statute to define a live birth. The court then expanded Oklahoma law to include a "viable fetus" as the potential victim in a homicide case.
9. In this case, the State has proffered evidence that the fetus delivered by natural birth had a heartbeat for approximately seventeen minutes and that independent circulation of oxygenated blood occurred. This evidence, in a light most favorable to the State, creates an issue of fact that precludes granting a motion to dismiss. It becomes the burden of the State to establish as one element of the crime of Murder Second Degree that the victim was a person.
10. The term person under our criminal code is defined as ". . . a human being who has been born and is alive. . . ." Title 11 Del. C. § 222 (19). In the context of this case, that means:
1) a human fetus that is born, i.e. completely expelled or extracted from the mother, and
2) is alive, i.e. after such separation, breathes or shows any other evidence of life such as beating of the heart, pulsations of the umbilical cord, or definite movement of voluntary muscles.
It is also clear that "beating of the heart" means more than spontaneous cardiac contractions that are transient in nature.
11. The State must prove this element of the offense beyond a reasonable doubt. Based upon the pretrial submissions of the parties, the Court cannot conclude that the State will be unable to meet this burden. For that reason, the motions must be DENIED.