Nature of the Case
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Facts
Davis (D) shot Flores outside a check-cashing store, and Flores lost her 25-week-old fetus as a result of the gunshot wound. At the time, D was attempting to rob Flores. When she refused. D shot her in the chest. Flores survived, but the fetus was stillborn from her loss of blood, low blood pressure, and shock. D was charged with a laundry list of crimes which included fetus murder. The state also charged special circumstances of robbery-murder so D would be put to death or sent to prison for life without the possibility of parole. Expert testimony at trial showed that there was a very low chance of survival of the fetus outside the womb when the fetus was 25 weeks (2-3% for D’s expert and 7-47% for the State’s expert). Prior case law stated that the fetus must be viable before a defendant could be found guilty of fetus murder. Viability has always been defined as capable of living outside the uterus without extraordinary medical efforts. The jury was instructed that if the fetus had a possibility of survival, then D could be found guilty. The jury convicted D of fetus murder during the course of a robbery but acquitted D of the attempted murder of Flores. D was sentenced to life plus five years for the use of a firearm. D appealed. The Court of Appeals determined that probability was not required and that a party could be found guilty based on the possibility of survival but reversed the conviction on grounds that this application would violate due process as a violation of ex post facto principles.
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