First Degree Murder - Death of a Fetus Caused by the Shooting Death of Its Mother

In Vo v. Superior Court, 172 Ariz. 195, 200, 836 P.2d 408, 413 (App. 1992) the Court considered whether the first-degree murder statute then in effect, which prohibited causing the death of a "human being," was applicable to the death of a fetus caused by the shooting death of its mother. 172 Ariz. at 198, 836 P.2d at 411. Reviewing "the way in which the legislature has referred to a fetus in other sections of the criminal code" and "noncriminal areas of Arizona statutory law in which the legislature has protected unborn children," the court concluded that "the legislature did not intend a fetus to constitute a 'person' for all purposes." Id. at 201-02, 836 P.2d at 414-15. The court noted that, "where the legislature intends to protect the unborn, it does so by specific reference to a fetus." Id. at 202, 836 P.2d at 415. See, e.g., A.R.S. 13-1103(A) (prohibiting manslaughter of a "person" and of an "unborn child" in different subsections); A.R.S. 36-329 (providing separately for death certificate for fetal death); A.R.S. 36-2301.01(D) (defining "viable fetus" not as "human being" but as "unborn offspring of human beings that has reached a specified state of fetal development"). Thus, the court held that, in the absence of any express language indicating the legislature intended to encompass the killing of a fetus, the statute could not be so interpreted. Vo, 172 Ariz. at 201-02, 836 P.2d at 414-15. The court also noted that "perhaps the time has come to reexamine the protections afforded unborn children under Arizona's criminal law in light of the scientific advances in the areas of obstetrics and forensics." Id. Nonetheless, it recognized that it could not "expand the scope of a crime by judicial decision to punish a defendant for an act that was not criminal when it was performed" and that "any expansion of the law in this area is the prerogative of the Arizona legislature, not of the courts." Id. at 200, 202, 836 P.2d at 413, 415.