Hollis v. Com.

• Decision Date: 30 March 1983
• Citation: 652 S.W.2d 61
• Parties: Robert Lee HOLLIS, Movant, v. COMMONWEALTH of Kentucky, Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 61

652 S.W.2d 61

Robert Lee HOLLIS, Movant, v. COMMONWEALTH of Kentucky, Respondent.

Supreme Court of Kentucky.

March 30, 1983.

As Modified on Denial of Rehearing July 6, 1983.

Jack E. Farley, Public Advocate, Frankfort, C. Thomas Hectus, Gittleman & Barber, Louisville, for movant.

Steven L. Beshear, Atty. Gen., Eddie C. Lovelace, Sp. Asst. Atty. Gen., Penny R. Warren, Asst. Atty. Gen., Frankfort, for respondent.

Nan D. Hunter, New York City, Thomas Hogan, Louisville, for amicus curiae, American Civil Liberties Union Foundation.

LEIBSON, Justice.

Robert Lee Hollis is charged with murder in violation of KRS 507.020. This is a statutory offense committed when one intentionally or, under circumstances manifesting extreme indifference to human life, wantonly causes "the death of another person." The victim in this case was a fetus, alleged to be some 28-30 weeks old, carried in the body of Hollis' estranged wife.

Our decision is limited to whether Hollis can be charged with violating this statute. Thus limited, the issue is: Can a person who kills a viable fetus, at this time and under the statutes of this state, be charged with "Criminal Homicide" as set out in Chapter 507 of the Kentucky Revised Statutes? The much larger metaphysical question of "WHEN DOES LIFE BEGIN?" is not the subject of this opinion.

These questions bear upon our decision in this case: first, historically, what is included in the common law definition of murder; second, what is the impact of United States Supreme Court decisions interpreting the Constitution of the United States on our decision; and, third, using recognized rules of statutory construction, what is included within the word "person" as used in KRS 507.020?

The Commonwealth intends to prove that Hollis went to the home of his wife's parents, where she was staying, took her from that home out to the barn, told her he did not want a baby, and then forced his hand up her vagina intending to destroy the child and deliver the fetus. The medical evidence in the record by deposition is that the fetus was killed and the mother's uterus and vagina substantially damaged. The doctor delivered the dead fetus by abdominal incision. In separate indictments Hollis was charged with murder "of the unborn infant child" and assault in the first degree on his estranged wife. The first question in this case is whether Hollis can be charged with murder for causing the death of the fetus. But we are also confronted with the question of whether Hollis can be charged with two offenses, one in connection with the fetus and a separate one in connection with the mother.

The trial court dismissed the murder indictment, reasoning that destroying the life of a viable fetus was not considered murdering a person at common law and that the statutory definition of murder did not enlarge the scope of the word "person." The Kentucky Court of Appeals reversed the decision of the trial court, reasoning that Kentucky now permits recovery in damages in civil cases for the wrongful death of a viable fetus and that it "cannot perceive any sound reason why it should have any less status when it becomes an alleged murder victim." (Court of Appeals' Opinion, p. 70.)

The Commonwealth concedes that historically, at common law, "a conviction of homicide was not possible ... unless the infant had been born alive." (Respondent's Brief, p. 12). This Court recognized this principal in Jackson v. Commonwealth, 265 Ky. 295, 96 S.W.2d 1014 (1936), where the mother was charged with murdering her child at birth and the issue on appeal was whether there was evidence sufficient to establish "that the child was born alive." In Jackson, quoting earlier authority, we stated:

"In the absence of proof that the child had ever breathed or was alive at birth a conviction cannot be sustained. It is necessary for the Commonwealth to prove affirmatively, not only that the child had breathed, because that might occur during birth, but that it had had a complete and seperate (sic.) existence of its own after birth.... When the evidence that the child was born alive is susceptible of doubt, a conviction can not be sustained."

The position of the Commonwealth is that, by the process of evolution, the status of a fetus has so changed in the eyes of society, and of the law as expressed by the United States Supreme Court, that a viable fetus is a "person" for purposes of criminal homicide. While this argument may appeal to us instinctively, it cannot stand up to the rule of law which both guides and restrains our hand.

We are cited to decisions from nineteen sister states holding to judicial insistence on proof that life existed separate from the mother to establish a charge of criminal homicide. A number of these decisions are quite recent. Nine were decided after the publication of the United States Supreme Court decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), relied on by the Commonwealth as the keystone for the claim that a viable fetus now has status as a victim of criminal homicide. The Commonwealth has cited us to no case in any of our sister states in conflict with these nineteen decisions denying such status. All of these decisions reaffirm the born alive requirement for a prosecution for murder.

The United States Supreme Court decision in Roe, supra, is not authority for the proposition that a viable fetus should be considered a "person" whose life is entitled to constitutional protection, much less for the proposition that the killing of a viable fetus must be regarded as murder. The thrust of Roe was from the opposite direction, that no state can prohibit terminating the life of a fetus, regarded by many as human life at any stage of its development, until the final trimester of pregnancy, and not even then when necessary to protect maternal life or health. Thus the "health of the mother" is afforded constitutionally protected precedence over the "life" of the fetus. The decision in Roe is simply that a woman's decision whether or not to terminate pregnancy is protected by the Due Process Clause of the Fourteenth Amendment, to such extent that the state has no "compelling" interest permitting it to make abortion unlawful until the third trimester of pregnancy, the point at which the fetus becomes viable.

The thrust of Roe is to declare that the mother's right to privacy in the early stages of her pregnancy, and her health in the last stage of pregnancy when the fetus is viable, have constitutional protection before the life of the fetus, so that the state must not interfere in the abortion process. Roe states at p. 163, 93 S.Ct. at p. 732:

"If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother."

This is hardly a basis for reasoning that Roe gives a viable fetus status as a person whose life is implicitly protected by the murder statute. It is fundamental that this Court has no authority to disagree with a decision of the United States Supreme Court interpreting the Federal Constitution.

Viewed in the context of Roe, Kentucky has a "compelling" interest in the life of the fetus when it reaches the stage of viability sufficient to legislate legal sanctions punishing those who destroy it, subject to the limitations that such sanctions shall not apply where the life or health of the mother is involved. Further, under Roe, Kentucky has the right to regulate the manner in which abortions shall be performed in the second trimester of pregnancy. To declare that it has done so by the murder statute, KRS 507.020, is totally inconsistent with any rational interpretation of that statute. The statute makes no effort to define the word "person," leading to only one conclusion, that it should be interpreted in conformity with the law regarding criminal homicide as it existed at the time when the statute was passed. We have already discussed what that law is--Jackson v. Commonwealth, supra.

The decision of this court in Mitchell v. Couch, Ky., 285 S.W.2d 901 (1955), recognizing a civil action for causing death of a viable fetus, did not indicate an intention to change the criminal law. That change in the civil law was in line with similar rulings in many states recognizing that a viable fetus is a valuable entity, so that a person destroying it should pay damages for the life destroyed. The claim is on behalf of the personal representative, for the benefit of the parents or heirs who have suffered the loss. None of the states which have recognized this civil cause of action have suggested that the state should impose sanctions for criminal homicide by reason thereof. In this state, where criminal sanctions are supposed to flow from the Kentucky Penal Code rather than evolving out of court decisions, it would be fundamental error to create a crime in the absence of a statute based on destroying the life of a viable fetus.

When we turn to the Kentucky Penal Code, we find that although "person" is not defined in the chapter related to "Criminal Homicide" the Commentary refers repeatedly to the Model Penal Code published by American Law Institute in 1962. The Commentary to the Model Penal Code states:

"The effect of this language is to continue the common-law rule limiting criminal homicide to the killing of one who has been born alive. Several modern statutes follow the Model Code in making this limitation explicit. Others are silent on the point, but absent express statement to the contrary, they too may be expected to carry forward the common-law approach."

This Court cannot presume that the legislature intended to license us to expand the class of persons who could be treated as victims of criminal homicide as we should deem appropriate in our own discretion. Appellate courts in Illinois, Michigan and Rhode Island have all dismissed indictments for...