United States v. Riley

50 M.J. 410, 1999 CAAF LEXIS 1027, 1999 WL 439111

• Court: Court of Appeals for the Armed Forces
• Decided: June 14, 1999
• Docket: 98-0146/A
• Status: Published

Opinions

Judge GIERKE

delivered the opinion of the Court.

A general court-martial composed of officer and enlisted members convicted appellant, contrary to her pleas, of premeditated murder of her newborn baby, in violation of Article 118, Uniform Code of Military Justice, 10 USC § 918. Before announcing sentence, however, the court-martial reconsidered¹ and reduced its finding to unpremeditated murder, also in violation of Article 118. The adjudged and approved sentence provided for a dishonorable discharge, confinement for 25 years, total forfeitures, and reduction to the lowest enlisted grade.

The Court of Criminal Appeals affirmed only the lesser-ineluded offense of involuntary manslaughter, in violation of Article 119, UCMJ, 10 USC § 919, and reassessed the sentence to a dishonorable discharge, confinement for 10 years, total forfeitures, and reduction to the lower enlisted grade. 47 MJ 603, 610.

Before this Court, appellant argues that the decision of the court below was contrary to the “law of the case,” violated due process, and was not supported by the evidence.² For the reasons set out below, we hold that the Court of Criminal Appeals erred by affirming a conviction of a lesser-ineluded offense based on appellant’s “refusing and impeding assistance in the delivery and care of her child.” 47 MJ at 608.

Factual Background

The Court of Criminal Appeals conducted an exhaustive analysis of the evidence and based its decision on the factual insufficiency of the evidence. Because the correctness of the lower court’s decision depends in large part on that court’s factual analysis, we consider it necessary to set out in detail the facts on which the court below rendered its decision. Our resolution of this case is based on application of the law to the facts as found by the court below, which we adopt for the purposes of this decision. The relevant facts are as follows:

In early April, 1995, [appellant] complained to her supervisor that she was cramping, spotting, and had not had a menstrual cycle in about six months. At his urging, she went to the Dyess AFB hospital and reported her problems to Dr. Clinton, an ER physician. Dr. Clinton examined her abdominal area and listened to her breathing and heart. After Airman Riley declined a pelvic examination, Dr. Clinton gave her a shot of Toradol for pain and sent her home. Airman Riley returned to Dr. Clinton twelve days later complaining of cold symptoms, nausea, and tightness in her chest. After a brief examination that included another abdominal exam, Dr. Clinton gave her breathing treatments, a decongestant, and an antibiotic, then sent her home.

At some point in April, 1995, Airman Riley told a friend that she had not had her period in months and that a home pregnancy test returned positive. The friend told Airman Riley that the positive test result could be from stress, or something she ate or drank, but urged her to go to the hospital. Airman Riley made an OB/GYN appointment for April 25, 1995, but cancelled it after working an extended shift the night before. The Dyess hospital records show no other OB/GYN appointment for Airman Riley before or after the 25th of April.

On July 2,1995, Airman Riley joined her friend Gina in a one-hour game of racquetball. That evening, Airman Riley called her supervisor and complained that she was cramping “real bad,” spotting, in pain, and wanted the night off. He refused. Airman Riley arrived at work at 11 p.m., but was released at 3 a.m. the next morning because of “obvious pain.” At 6 a.m., Airman Riley went to a friend’s room wearing a baggy t-shirt, sweat shorts, and tennis shoes. She complained that her back hurt and asked to be taken to the hospital. Airman Riley had a difficult time sitting in the car and cried the entire way to the hospital.

Airman Riley arrived at the Dyess ER at 6:30 a.m. on July 3, 1995. The ER was quiet and empty — the patient before Airman Riley had arrived at 5:49 a.m. and the next patient didn’t arrive until 9:20 a.m. Airman Riley was holding her back and crying when she met the ER technicians, and told them that she hurt her back playing racquetball the previous day. As she spoke to the technicians, she went back and forth from sitting to crouching to squatting. It seemed to the technicians that her pain was coming “in waves.” They took her vital signs, then brought her to Exam Room 2 to be seen by Dr. Frey, a contract physician from Maryland who was scheduled to finish his 16-hour shift at 7:00 a.m., then fly back to Maryland.

Dr. Frey began the exam by asking Airman Riley what was wrong. Airman Riley complained of pain in her lower left back from playing racquetball. After examining her back, Dr. Frey ordered a shot of Toradol for pain and released her. Airman Riley returned to the waiting room for release where she sat doubled-over and crying. The three ER technicians on-duty became concerned and asked the incoming physician, Dr. Chengson, to look at her.

When Dr. Chengson approached Airman Riley in the waiting room, she was sitting sideways in her chair, stooped over. Dr. Chengson looked at Airman Riley’s charts, then began to ask her questions. Airman Riley told Dr. Chengson that she had just started her menstrual period for the first time in a year and needed something for her cramps. Dr. Chengson ordered a pregnancy test and had Airman Riley brought to Exam Room 2. Airman Riley sat in the exam room crouched over on a foot stool. She was having crying spells and would drop to her knees on the floor in spasms of pain. Once blood was drawn for the pregnancy test, Dr. Chengson told Airman Riley that they would report the result back to her immediately and then left the room.

Airman Riley walked into the hallway and asked one of the ER technicians where the restroom was. He directed Airman Riley to a small bathroom adjacent to Exam Room 2 and 10- to 15-feet across the hall diagonally from the ER reception desk. The 7’8” x 4’5” restroom was just big enough for the door to swing open in front of a sink and toilet, with a trash can to the side on the tile floor and an emergency pull cord near the sink. The ER technicians testified that it was easy to hear things in the bathroom from their desk, such as the toilet flushing and the paper towel roller being used.

The ER technicians heard Airman Riley continuing to softly moan and cry after she entered the restroom, but didn’t hear any other unusual sounds. After some time had passed, one of the ER technicians knocked on the door. Airman Riley replied, “I’ll be out in a few minutes, sir.” Another ER technician knocked two more times. The first time she responded, ‘Yes sir.” The second time she said she had been sick and needed a mop. The technician told her that Dr. Chengson was waiting for her. When Airman Riley walked out of the restroom the technician noticed blood on her legs. He asked Airman Riley about it and she replied that she was menstruating. A technician called housekeeping to clean the restroom since Airman Riley said that she had gotten sick. All total, Airman Riley spent 30 to 45 minutes in the restroom.

The pregnancy test was positive, and Dr. Chengson was waiting in the exam room for Airman Riley with a chaperon. When Airman Riley walked in, she was upright, pale, and seemed anxious to go home. Dr. Chengson performed an abdominal exam and took her heart-rate, which was at 150. Dr. Chengson then proceeded to do a pelvic exam and immediately noticed fresh lacerations going in several directions and hematomas. He asked Airman Riley how this had happened. She responded that she had hurt herself in a rollerblading accident.

While Airman Riley was in the exam room, a woman from housekeeping found the body of an infant girl among wads of paper towels in the ER restroom trash can. Within a few hours, a detective from the Abilene Police Department and an Air Force Office of Special Investigations (AFOSI) agent began an investigation of the crime scene. They found the restroom floor covered with blood, though obvious attempts had been made to wipe it up. There was blood splatter on the wall on both sides of the toilet and bare footprints in the blood on the floor. Among Airman Riley’s clothes seized as evidence was her t-shirt, which showed the outline of an infant held against her chest with its head near her left shoulder.

After being kept in the hospital overnight, Airman Riley received a transfusion of two pints of blood to replace the blood she had lost. As Airman Riley was receiving the transfusion, the investigators sat down, explained to her that she was not in custody, and began interrogating her. Airman Riley explained that, once in the restroom, she sat on the toilet and began to instinctively push. She pushed two or three times, then the baby “squirted out” onto the floor. When she looked down, it wasn’t moving, crying or breathing. Airman Riley said she moved the baby around, put her hand on its chest, listened for a heartbeat, pulled the arms up, lifted its feet, poked it, turned it on its side and tried spanking it. Airman Riley admitted to avoiding the possibility that she was pregnant, but repeatedly denied that she killed her baby.

An autopsy indicated that the baby was born alive because the lungs were aerated in an even pattern. The autopsy revealed symmetrical parietal fractures above both ears leading to the top of the skull in an “H” pattern. The cause of death was determined to be a blunt force crush of the skull resulting in traumatic injury to the brain and brain stem. The medical examiner testified at trial that there is relatively little research in the area of infant skull fractures. He explained that the majority view holds that short falls would rarely cause this type of injury, while the minority view holds that short falls have a significant potential for fatality. The medical examiner opined that the most likely cause of the skull fracture was one or two impacts of the skull against a hard flat surface with significant force.

The prosecution also called an Air Force pediatrician with 14 years experience, who was studying abusive head trauma under a fellowship in medical child abuse and neglect. This expert suggested that the symmetrical fracture patterns were caused by a crushing of both sides of the skull at once. On cross-examination, the expert acknowledged that the injuries could have resulted irom Airman Riley falling onto the infant’s head after giving birth. He stated that the other relatively minor injuries, such as a frontal scalp contusion and bruising on the neck, could have resulted from unassisted delivery.

The defense called a nurse midwife, who had delivered approximately 1000 babies and assisted in the delivery of another 2000 to 3000 births, as an expert in pregnancy and childbirth. She testified that a woman will feel a strong and pronounced need to go to the bathroom for a bowel movement when the first urge to push comes during labor. She then described the introspection of a woman during the birthing process, the frequent uncontrollable shaking following birth that occurs as a result of muscles relaxing after being contracted, and the frequency of weakness, dizziness, increased pulse rate, and fainting caused by blood loss and pain. She also testified that an unassisted birth will produce an “explosive” delivery. When this happens, the tears in the perineum will go in different directions and the pain will be greater than the typical childbirth. Finally, she testified that loss of two pints of blood and a pulse rate of 150 were consistent with shock and momentary fainting.

47 MJ at 605-07.

The specification on which appellant was arraigned alleged that she did, “on or about 3 July 1995, with premeditation, murder Infant Riley, also known as Baby Girl Riley, by means of fracturing her skull.” The theory of the prosecution was that appellant intentionally killed her baby. In his closing argument, trial counsel anticipated the military judge’s instruction on the lesser-ineluded offenses of involuntary manslaughter and negligent homicide and asserted that those offenses “just simply don’t apply in this case.” Commenting on appellant’s responses to the ER technicians who knocked on the bathroom door, trial counsel argued that her responses were evidence of premeditation: She was about to kill her baby and did not “want to be discovered.”

The theory of the defense was that the baby was killed when she fell to the floor during the birthing process, through no fault of appellant. The defense argued that appellant’s responses to the ER technicians did not show premeditation or intent because appellant thought that her baby was already dead when they knocked on the door. The defense relied heavily on appellant’s pretrial statement, where she repeatedly insisted that she did not kill her baby, but that “it fell on the floor____ It cracked it’s [sic] head[.] It was dead.”

During an Article 39(a), UCMJ, 10 USC § 839(a), session convened to discuss the instructions on findings, the military judge informed counsel for both sides of his intent to instruct the court-martial that voluntary manslaughter, involuntary manslaughter, and negligent homicide were lesser-ineluded offenses. His proposed instruction would have advised the court-martial that an element of the lesser-ineluded offenses was that appellant “failed to prevent the fracture of Baby Girl Riley’s skull or failed to summon medical assistance which was immediately available for the infant.”

The defense objected to any instruction on culpable negligence by failure to act, arguing that the Government had charged appellant with a culpable act but not with a culpable failure to act, and that amending the specification to include a failure to act would be a major change to the specification. The prosecution agreed in part, informing the military judge “that we have never been proceeding under the theory, and do not intend to argue, that Airman Riley’s culpability stems from failure to summon medical assistance.”

The military judge then deleted the reference to failure to summon medical assistance but retained his description of culpable negligence by failure to prevent the fracture of the baby’s skull. The instruction on the lesser-ineluded offense of involuntary manslaughter that was ultimately given omitted any reference to “failure to act.” In fact the judge specifically told the members to delete that language from their copy of the written instructions. In his instruction on the lesser-ineluded offense of negligent homicide, the military judge instructed the court-martial on “failure to act”; he also “instructed that Airman Riley’s failure to summon medical assistance may not, as a matter of law, constitute the negligent act or failure to act set out above.”

The prosecution’s argument on the merits was consistent with the military judge’s instructions. Trial counsel argued:

In discussing the offenses of negligence, [defense counsel] was very clear to point out, and the judge is going to tell you exactly the same thing, that the failure to summon medical assistance cannot be the basis of a finding of the negligence, the negligence of homicide. It cannot. The judge is going to tell you that____ But what it can be considered for is evidence like intent and premeditation.

The court-martial initially found appellant guilty of premeditated murder. After the court-martial closed to deliberate on sentence, the members decided to reconsider their findings after considering an affidavit from a military psychiatrist that had been presented by the defense in extenuation and mitigation. The members reconsidered and found appellant not guilty of premeditated murder but guilty of unpremeditated murder.

The Court of Criminal Appeals set aside the conviction of unpremeditated murder for factual insufficiency, i.e., it was not convinced beyond a reasonable doubt of appellant’s guilt of that offense. See Art. 66(c), UCMJ, 10 USC § 866(c) (1994); United States v. Turner, 25 MJ 324, 325 (CMA 1987). The court framed the issue before it as follows: “The question we must answer is whether we are convinced, beyond a reasonable doubt, that (1) Airman Riley fractured her daughter’s skull (2) with the intent to kill or inflict great bodily harm.” 47 MJ at 607.

The court related the various theories of culpability advanced by the prosecution: that appellant intentionally killed the baby by “stomping on her daughter’s head, crushing her head between the toilet seat and rim, or by using her as a battering ram against the wall.” Id. It also considered the evidence supporting the theory that appellant negligently killed the baby “as a result of the baby falling to the floor after delivery, or as a result of Airman Riley falling onto her baby.” 47 MJ at 608. The court commented, “None of the physical evidence or expert testimony presented in this case persuades us to accept any one of the many possible explanations for the injuries.” Id.

The court concluded its analysis by holding, “We are not convinced, beyond a reasonable doubt, that Airman Riley fractured her daughter’s skull with the intent to kill or inflict great bodily harm.” The court made no specific findings concerning the factual sufficiency of the evidence to support any of the lesser-included offenses submitted to the court-martial, all of which were premised on negligent infliction of the fatal injuries. The court held, however, that appellant’s “disregard for the foreseeable consequences of refusing and impeding assistance in the delivery and care of her child constituted culpable negligence and was the proximate cause of her child’s death.” Based on this rationale, the court below affirmed the lesser-included offense of involuntary manslaughter through culpable negligence. Id. at 608.

Discussion

Appellate courts have authority to set aside a finding of guilty and affirm only a finding of a lesser-included offense. Art. 59(b), UCMJ, 10 USC § 859(b). That authority, however, is not without limits. An appellate court may not affirm an included offense on “a theory not presented to the” trier of fact. Chiarella v. United States, 445 U.S. 222, 236, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980); United States v. Standifer, 40 MJ 440, 445 (CMA 1994). To do so “offends the most basic notions of due process,” because it violates an accused’s “right to be heard on the specific charges of which he [or she] is accused.” Dunn v. United States, 442 U.S. 100, 106, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979). Accordingly, we hold that neither this Court nor the court below may affirm appellant’s conviction on a theory of failure to summon medical assistance.

The Government concedes that the law of the case would preclude affirming a conviction based on appellant’s failure to act. Answer to Final Brief at 18. The Government argues, however, that the doctrine is a discretionary policy, not a mandatory rule of law. Id. at 14. The Government further argues that the Court of Criminal Appeals’ decision does not offend due process, because the lesser-included offense affirmed by that court was premised on intentional acts designed to impede or prevent medical care from being administered to the baby, and not a mere failure to summon medical assistance. Id. at 18-20.

We reject the Government’s due process argument. Like the theory that appellant failed to summon medical assistance, which was expressly disclaimed by the prosecution, this theory of intentional prevention of medical intervention was not asserted by the prosecution and was never submitted to the trier of fact. Thus, appellant was never given an opportunity to defend against it. To affirm on this theory would violate due process. See Dunn.

Finally, the Government argues that, if the lower court’s theory of culpability was incorrect, this Court should remand the case for further consideration under correct legal principles. Answer, supra at 25-26. We agree that a remand is appropriate, but for a different reason.

Under Article 67(c), UCMJ, 10 USC § 867(c) (1994), we “may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.” If the lower court exercises its unique factfinding power and sets aside a finding of guilty as incorrect in fact, as opposed to incorrect in law, then that decision is virtually unreviewable by this Court. It is clear from the opinion of the court below that it found the evidence factually insufficient to support a conviction of unpremeditated murder. 47 MJ at 608. It is not clear, however, whether that court also found the evidence factually insufficient to support a conviction of a lesser-included offense premised on negligent infliction of the fatal injuries on the baby. Accordingly, we will remand the case to the court below for clarification of its decision and reconsideration under correct legal principles. Reconsideration must be consistent with our holding that culpability based on the withholding of medical care, either intentionally or negligently, was never submitted to the trier of fact and thus is precluded as a basis for affirmance, as a matter of due process.

Decision

The decision of the United States Air Force Court of Criminal Appeals is reversed. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for clarification of its holding and reconsideration consistent with the principles of due process set out above. In the event that any findings and sentence are affirmed on reconsideration, the case will be returned directly to this Court.

1 . RCM 924(a) was amended in 1995. The amended version is in Manual for Courts-Martial, United States (1998 edition).

2 . This Court granted review of the following issues:

I

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS, AFTER FINDING THAT THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO ESTABLISH THAT AIRMAN RILEY INTENDED TO KILL OR INFLICT GREAT BODILY HARM UPON HER NEW BORN INFANT DAUGHTER, ERRED WHEN IT AFFIRMED A CONVICTION FOR INVOLUNTARY MANSLAUGHTER WHERE:

A. SUCH A FINDING WAS CONTRARY TO THE “LAW OF THE CASE” SINCE TRIAL COUNSEL AFFIRMATIVELY ASSERTED THAT THE GOVERNMENT WAS NOT PROCEEDING UNDER ANY THEORY OF CULPABILITY ARISING FROM THE FAILURE TO SUMMON MEDICAL CARE AND THE MILITARY JUDGE INSTRUCTED THE MEMBERS THAT THEY COULD NOT CONVICT AIRMAN RILEY ON SUCH A THEORY;

B. SUBSTITUTING AN ALLEGATION THAT THE CAUSE OF DEATH WAS THE REFUSAL AND IMPEDANCE OF ASSISTANCE AND CARE FOR THE INFANT WAS A FATAL VARIANCE FROM THE CHARGED SPECIFICATION WHICH ALLEGED THE CAUSE OF DEATH AS THE INTENTIONAL FRACTURING OF THE INFANT’S SKULL, AND THUS DENIED AIRMAN RILEY OF THE DUE PROCESS REQUIREMENT OF NOTICE;

C. AIRMAN RILEY WAS DENIED THE RIGHT TO HAVE HER GUILT OR INNOCENCE DETERMINED BY THE MEMBERS SINCE THE MEMBERS, HAVING CONVICTED HER OF UNPREMEDITATED MURDER, NEVER, PURSUANT TO THE MILITARY JUDGE’S INSTRUCTIONS, CONSIDERED WHETHER THE NEGLIGENCE OF THE AIR FORCE DOCTORS WAS A SUFFICIENT INTERVENING PROXIMATE CAUSE TO RELIEVE HER OF CRIMINAL LIABILITY;

D. SINCE THERE IS NO EVIDENCE THAT THE INFANT WAS ALIVE DURING "THE THREE SEPARATE TIMES” WHEN AIRMAN RILEY ALLEGEDLY TURNED AWAY CARE AND ASSISTANCE WHILE IN THE HOSPITAL BATHROOM, THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A CONVICTION OF INVOLUNTARY MANSLAUGHTER.

II

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN, AFTER HAVING FOUND THE EVIDENCE TO BE SUFFICIENT ONLY TO SUPPORT A CONVICTION FOR THE LEGALLY LESS SERIOUS OFFENSE OF INVOLUNTARY MANSLAUGHTER, IT REASSESSED THE "MAXIMUM AVAILABLE PUNISHMENT.”

In view of our resolution of Issue I, we need not address Issue II.