

   
   
   
   U.S. V. Nelson



IN THE CASE OF
UNITED STATES, Appellee
v.
Sharon Y. NELSON, Hull Maintenance Technician
Third Class
U.S. Navy, Appellant
 
No. 00-0010
Crim. App. No. 97-1978
 
United States Court of Appeals for
the Armed Forces
Argued May 4, 2000
Decided August 24, 2000
EFFRON, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., SULLIVAN and GIERKE, JJ., and COX, S.J.,
joined.
Counsel
For Appellant: Captain Curtis M.
Allen, USMC (argued).
For Appellee: Lieutenant James E.
Grimes, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC,
and Commander Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: Gerald T. Hatch
 
 


This opinion is subject
to editorial correction before publication.



Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer
and enlisted members convicted appellant, contrary to her pleas, of making
a false official statement and involuntary manslaughter, in violation of
Articles 107 and 119, Uniform Code of Military Justice, 10 USC §§
907 and 919. She was sentenced to confinement for 18 months, forfeiture
of all pay and allowances, and reduction to pay grade E-1. The convening
authority approved the sentence as adjudged and suspended the confinement
and forfeitures for a period of 1 year. The Court of Criminal Appeals affirmed.
52 MJ 516 (N.M.Ct.Crim.App. 1999).
On appellants petition, we granted review
of the following issues:

I. WHETHER THE LOWER COURT ERRED BY ADOPTING
A "VIABILITY" STANDARD FOR DETERMINING WHETHER AN INFANT IS "BORN ALIVE"
FOR PURPOSES OF A VIOLATION OF ARTICLE 119, UCMJ, MANSLAUGHTER.
II. WHETHER THE LOWER COURT ERRED BY REFUSING
TO CONSIDER LEARNED MEDICAL TREATISES, NOT SUBJECT TO REASONABLE DISPUTE,
AS OUTSIDE THE RECORD OF THE CASE IN FORMING ITS LEGAL TEST FOR WHETHER
AN INFANT IS "BORN ALIVE."


III. WHETHER THE LOWER COURT ERRED BY USING
THE DEFINITION OF "LIVE BIRTH" FROM STATE VITAL STATISTICS RECORDATION
STATUTES AND A STATE CIVIL STATUTE REGARDING ABORTION AS THE DEFINITION
OF "BORN ALIVE."
IV. WHETHER THE LOWER COURT ERRED IN DECIDING
THAT APPELLANT WAS CULPABLY NEGLIGENT IN GIVING BIRTH WITHOUT MEDICAL ASSISTANCE.
V. WHETHER THE LOWER COURT ERRED IN HOLDING
THAT A MOTHER IN THE THROES OF CHILDBIRTH HAS A DUTY TO EVALUATE THE CONDITION
OF HER INFANT AND TO PROVIDE MEDICAL ASSISTANCE TO THE INFANT.
VI. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT
TO FIND APPELLANT GUILTY OF INVOLUNTARY MANSLAUGHTER IN VIOLATION OF ARTICLE
119, UCMJ.
VII. WHETHER THE DECISION OF THE LOWER COURT
VIOLATES DUE PROCESS AND THE EX POST FACTO CLAUSE
OF THE UNITED STATES CONSTITUTION BY JUDICIALLY ENLARGING A LEGAL RULE
AND APPLYING THE ENLARGEMENT RETROACTIVELY.
VIII. WHETHER THE LOWER COURT ERRED IN FAILING
TO FIND THAT THE EVIDENCE WAS VII. WHETHER THE DECISION OF THE LOWER INSUFFICENT
TO PROVE APPELLANT MADE ANY FALSE OFFICIAL STATEMENTS BECAUSE THE MANUAL
FOR COURTS-MARTIAL CLEARLY INDICATES THAT ARTICLE 107, FALSE OFFICIAL STATEMENT,
DOES NOT APPLY TO STATEMENTS MADE BY AN ACCUSED DURING AN INTERROGATION.

For the reasons discussed below, we affirm.

I. APPLICATION OF THE "BORN ALIVE" TEST TO
THE UNLAWFUL KILLING OF "A HUMAN BEING" (ISSUES I, II, III, AND VII)
A. Legal Context
Appellant was convicted of involuntary manslaughter
of her newborn child under Article 119(b), UCMJ. The specification of which
appellant was found guilty alleged that the child died as a result of appellant's
culpable negligence in that appellant failed "to provide medical assistance
to" the child and "to take steps to ensure that medical treatment and assistance
were available and provided to" the child. The prosecution contended at
trial that the child passed through the birth canal alive and that the
infant had no congenital birth defects that would have caused death.
Under Article 119(b) of the UCMJ, involuntary
manslaughter includes the unlawful killing of "a human being" by culpable
negligence. The term "human being" is not defined or explained in the text
of the statute itself nor in the legislative history. In most homicide
cases, the definition of "human being" is not at issue. As the Air Force
Board of Review observed in United States v. Gibson, 17 CMR 911,
935 (1954):

The phrase "human being" ordinarily
has a universal meaning in the lay mind as well as the legal. In the ordinary
case where the evidence relates to a dead body of such age or physical
development that there can be no question but that the dead person had
a separate and independent life prior to death, there is no need or advantage
to giving amplifying or clarifying instructions defining the term "human
being" . . . . "Words generally known and in universal use do not need
judicial definition." (U.S. v. Shepard, (No. 343), 1 USCMA 487,
4 CMR 79).

Where, however, the evidence raises an issue as
to whether a child "had a separate and independent life prior to death,"
it is necessary to define the term "human being" in the course of providing
instructions to the members on the issue of whether a "human being" was
killed.
In United States v. Robbins, 52 MJ 159,
163 (1999), we noted that "Congress intended that Articles 118 and 119
be construed 'with reference to the common law.' See United States v.
Harrison, 16 USCMA 484, 485, 37 CMR 104, 105 (1967)." English common
law, like Article 119, treated homicide as the unlawful killing of a human
being. A human being, at common law, was defined as having been "born alive."
Robbins,
supra, citing Gibson, supra at 923.
The Board of Review in Gibson noted:



The modern common law view in English jurisprudence
is stated in Halsbury's Laws of England, Second Edition, Volume 9, Section
732, page 427, as follows:
 

"A child is not considered in law to be completely
born, so as to be the subject of a charge of murder or manslaughter until
the whole body of the child is brought alive into the world having an independent
circulation, and breathing or capable of breathing, from its own lungs,
so that it possesses, or is capable of, an existence independent of connection
with its mother. But the child may be completely born although the umbilical
cord not be severed."





17 CMR at 924. The Board cited the following passage
from the case of People v. Hayner, 90 N.E.2d 23 (N.Y. 1949), as
being "in harmony with nineteenth and twentieth century applications of
modern common law legal principles in English jurisprudence":



For the People were bound to establish .
. . that the child was born alive in the legal sense, that is, had been
wholly expelled from its mother's body and possessed or was capable of
an existence by means of a circulation independent of her own[.]



17 CMR at 926. The Board concluded:



In our opinion, the test in the case of People
v. Hayner, supra, as to separate existence is a sound application of common
law legal principles in the light of modern advancements in medical knowledge
of human physiology.



B. Factual Background
1. Facts surrounding the offense
Appellant had hidden her pregnancy from everyone
around her. One night, while most of her shipmates were ashore on leave,
appellant delivered her full-term child in isolation on board the ship.
Without examining the child's physical condition, appellant left her ship,
carrying the child and the sheets used during delivery in a plastic bag
with holes punched in it. Twelve hours later, appellant took herself and
the child to a civilian hospital; appellant was admitted and treated, but
the child was dead.
2. Events at trial
The primary issue at trial was whether appellant
had been culpably negligent in delivering her child without medical assistance
and in not providing such assistance thereafter. Although the defense did
not expressly contend that the child had not been born alive, the military
judge recognized that the issue of whether the child had been born alive
was raised by the evidence and was part of the "nature of the charges in
this case."
Appellant, for example, testified that her
child did not cry when delivered, but she said that she heard a small whimper
from the child. Appellant maintained, both to criminal investigators and
at trial, that the child was alive until just before she had taken the
child to the hospital. Military medical officers who had attended the autopsy
testified, however, that a "float test" of the child's lungs performed
during the autopsy indicated that the child had never taken an efficient
breath of air. Other autopsy tests indicated that the child was alive when
she passed through the birth canal and that the child had no congenital
defects. The medical officers testified that the likely cause of death
was primary apnea, a not-unusual condition in which the baby does not take
its first breath unaided.
The military judge specifically cited Gibson
as the basis for requiring an instruction on the legal definitions of the
terms "human being" and "born alive" under these circumstances. Both parties
expressly agreed that such an instruction was necessary, and both agreed
that the military judge should use the standard set forth in Gibson.
Pursuant to the agreement of the parties, and
without subsequent objection by either party, the military judge instructed
the members as follows:



Both the greater offense of involuntary manslaughter
and the lesser offense of negligent homicide require proof beyond a reasonable
doubt that the child was born alive in the legal sense, that is, the child
had been wholly expelled from its mother's body and possessed or was capable
of an existence by means of circulation independent of the mother's. Included
in the term circulation is the child's breathing or capability of breathing
from its own lungs. For the accused to be found guilty of either the greater
offense of involuntary manslaughter or the lesser offense of negligent
homicide, you must be convinced beyond a reasonable doubt based upon the
evidence that the accused's newborn infant was born alive. If you are not
convinced beyond a reasonable doubt that the accused's newborn infant was
wholly expelled from her mother's body and possessed or was capable of
an existence beyond -- excuse me, existence by means of circulation, independent
of the accused's, you must find the accused not guilty of the greater offense
of involuntary manslaughter and the lesser offense of negligent homicide.



3. Decision by the Court of Criminal Appeals
The Court of Criminal Appeals affirmed, but
decided to supplant Gibson's "born alive" standard with a new test
based upon "viability outside the womb." The Court stated:



[W]e believe that public policy demands that
a newborn infant, wholly expelled from the mother, be afforded the maximum
protection possible under the law. To ensure that protection, we adopt
a "viability outside the womb" standard. That standard applies the born-alive
rule used in Gibson to the extent that it requires the infant be
fully expelled from the mother, and that the infant have the capability
of existing independent from the mother's circulatory system. . . .
This standard also requires a determination
of whether that capability exists. To make that determination, we adopt
Black's Law Dictionary's definition of "born alive," and conclude that
an infant need not be breathing at the time it is fully expelled from its
mother so long as it "shows any other evidence of life such as beating
of the heart, pulsation of the umbilical cord or definite movement of voluntary
muscles . . . ." Black's Law Dictionary at 184. In making this determination,
as recognized by the Gibson court, it is also appropriate to consider
current medical technology.



52 MJ at 521 (emphasis omitted).

C. Discussion
Because manslaughter under the UCMJ is derived
from the common law, it is appropriate to construe Article 119 -- including
the phrase "human being" -- in the context of the common law. SeeRobbins,
supra at 163, citing Harrison, 16 USCMA at 485, 37 CMR at
105; cf. United States v. Spencer, 839 F.2d 1341, 1343 (9th
Cir. 1988)(Congress intended the federal murder statute, 18 USC §
1111, to reflect the common law definition of murder, which required that
the victim was born alive.). The decision of the court below, while noting
a number of important "public policy" issues, does not demonstrate that,
under the circumstances of the present case, those questions should be
resolved in a judicial rather than a legislative forum.
See generally
H.R. 2436, 106th Cong., 1st Sess. (1999) ("An Act to amend title
18, United States Code, and the Uniform Code of Military Justice to protect
unborn children from assault and murder, and for other purposes"); S. 1673,
106th Cong., 1st Sess. (1999) ("A Bill to amend titles 10 and
18, United States Code, to protect unborn victims of violence.").
Although Gibson, a 1954 Air Force Board
of Review decision, does not serve as binding precedent either on our Court
or on the Navy-Marine Corps Court of Criminal Appeals, its persuasive analysis
accurately reflects the modern common law view that the term "human being"
means a child that was "born alive," and that "born alive" means that the
child was "wholly expelled from its mother's body and possessed or was
capable of an existence by means of a circulation independent of her own."
17 CMR at 926.
Gibson has been the sole authoritative
voice in military jurisprudence on this issue for nearly a half-century.
The continued viability of the Gibson standard is reflected in the
fact that it was the source used by the military judge and parties at trial,
both in identifying the need for an instruction as to the terms "human
being" and "born alive" and in forming that instruction. It was the single
authority cited in direct support of our statement in Robbins, supra
at 163, that "[a]t common law, a newborn child was required to be 'born
alive' to be the subject of homicide." As this Court noted in a related
context in Harrison, supra at 485, 37 CMR at 105: "In our
opinion, the course of decision is clearly marked by established military
law and practice."
We note that appellant acknowledges in her
brief that the state jurisdictions "that use the common law for determining
when a fetus becomes a 'person' for purposes of criminal prosecution generally
follow the rule set out in People v. Hayner, 90 N.E. 2d 23, 24 (N.Y.
1949)" -- the case relied upon by the Board of Review in Gibson
decision. Final Brief at 16.
In Gibson, the Board of Review stated
that Hayner represented "a sound application of common law legal
principles in the light of modern advancements in medical knowledge of
human physiology." 17 CMR at 926. We agree, and note that Gibsons
application of Hayner continues to offer flexibility to accommodate
advancements in medicine and science that inevitably affect the reality
of what it means to be "born alive."
Because Gibson is based upon sound legal
principles, we reject the suggestion of the court below that the Gibson
standard should be replaced by a new "viability outside the womb" standard.
In the present case, the military judge recognized the possible issue presented
by the evidence as to whether appellant's newborn daughter had been "born
alive" in terms of the statute's application to an unlawful killing of
a "human being." Both parties agreed with his assessment and with his instructions,
and those instructions fully and accurately conveyed the definition of
those terms found in Gibson.
In light of the foregoing considerations, we
conclude that the military judge's instructions were not in error and that
it was unnecessary for the Court of Criminal Appeals to modify the Gibson
standard. In view of our decision to reject the approach of the court below,
and to instead focus on the military judge's application of the Gibson
standard to the present case, the following issues are moot: Issues II
and III (challenging the basis of the lower courts definition of "born
alive") and Issue VII (appellant's ex post facto and due process
attacks on the decision of the court below).

II. CULPABLE NEGLIGENCE AND LEGAL SUFFICIENCY
(ISSUES IV, V, AND VI)
Issue IV raises the question of whether giving
birth without medical attention, by itself, can be the basis for finding
culpable negligence. Issue V asks whether a mother "in the throes of" such
unattended childbirth is culpably negligent if she does not evaluate the
child's condition and provide such medical attention as may be suggested
by that evaluation. Issues IV and VI also contend that the evidence is
legally insufficient to support a conviction for involuntary manslaughter.

A. Legal Context
Under Article 119(b), a person is guilty of
involuntary manslaughter when that person, "without an intent to kill or
inflict great bodily harm, unlawfully kills a human being . . . by culpable
negligence; . . . ." The Manual for Courts-Martial provides the following
explanation of culpable negligence:



It is a negligent act or omission accompanied
by a culpable disregard for the foreseeable consequences to others of that
act or omission. Thus, the basis of a charge of involuntary manslaughter
may be a negligent act or omission which, when viewed in the light of human
experience, might foreseeably result in the death of another, even though
death would not necessarily be a natural and probable consequence of the
act or omission.



Para. 44c(2)(a)(i), Part IV, Manual for Courts-Martial,
United States (1998 ed.).
Culpable negligence arises only from a legal
duty to act. "When there is no legal duty to act there can be no neglect."
Para. 44c(2)(a)(ii), supra. A parent has such a duty toward a child
with respect to providing medical assistance. United States v. Martinez,
52 MJ 22, 25 (1999), citing United States v. Valdez, 40 MJ 491,
495 (CMA 1994). The parent is culpably negligent in failing to provide
such assistance when "a reasonable person in such circumstances would have
realized the substantial and unjustified danger created by his act." Martinez,
supra
at 26 (emphasis omitted), quoting United States v. Baker, 24 MJ
354, 356 (CMA 1987), and citing United States v. Henderson, 23 MJ
77 (CMA 1986), and United States v. Brown, 22 MJ 448 (CMA 1986).

B. Factual Background
Appellant kept her pregnancy a secret from
the Navy and from her friends and family. When she realized she was in
labor, she began to pack with a view towards leaving her ship and going
to a civilian Italian hospital in an effort to maintain the secrecy of
her pregnancy. Her labor pains became more intense, however, so she lay
down on her rack. Because it was past 10:00 p.m. on a Saturday night, there
were relatively few people on board.
Shortly thereafter, she began to deliver. While
standing between two racks, with her pants and underwear lowered to her
knees, the child emerged and landed in her pants. Appellant cut the umbilical
cord with a pocket knife, lay the child on a rack, and covered the child
with a blanket. She then used some sheets to clean up the blood and liquid
from the deck. She placed the wet and bloody sheets, the clothes, and the
child in a trash bag with holes punched in it, and she carried the bag
off the ship.
There were three doctors assigned to appellant's
ship. In addition, two medical corpsmen who were experienced in delivering
babies were on board at the time of the delivery. During the labor and
birth process, a number of people walked nearby, but appellant sought no
assistance. Appellant acknowledged that she did not check on the child
for over an hour after the birth, and did not realize that the child needed
medical attention until 12 hours after birth. Appellant admitted at trial
that she knew she should have sought medical attention when she realized
that she was going to give birth and that she should have checked on her
child to make sure it was all right.
As noted in part I.B.2., supra, an autopsy
revealed that the child was alive while in the birth canal, did not have
any congenital defects, and probably did not draw its first effective breath
-- leading to a conclusion that the child likely died of primary apnea,
a condition easily corrected with simple stimulation.

C. Discussion
Appellant does not challenge the principle
that, as a general matter, a parent has a legal duty to provide medical
assistance to his or her child and that a parent is culpably negligent
when death might foreseeably result from failure to provide such medical
assistance. Appellant contends, however, that she was not culpably negligent
under the circumstances of this case -- that is, that death was not a foreseeable
consequence of an unattended childbirth in general or under the circumstances
of a mother "in the throes of childbirth."
Notwithstanding the manner in which appellant
has framed these issues, we note that the lower court did not conclude
that giving birth without medical assistance constitutes culpable negligence
as a matter of law. Likewise, the court did not conclude that failure to
check the baby's health while "in the throes of childbirth" constituted
culpable negligence. Instead, the court below properly treated the parental
duty to provide a child with medical assistance as the bedrock principle,
and it viewed culpable negligence in fulfilling that duty as a question
of fact to be decided on the basis of all applicable evidence. See
52 MJ at 523-24.
Viewed in that context, the essential question
that is before our Court is whether the evidence is legally sufficient
to support the finding at trial that appellant's conduct was culpably negligent.
The test is whether, considering the evidence in a light most favorable
to the prosecution and drawing every reasonable inference from the record
in favor of the prosecution, a reasonable factfinder could have found that
appellant was culpably negligent beyond a reasonable doubt. SeeJackson
v. Virginia, 443 U.S. 307, 319 (1979); United States v. McGinty,
38 MJ 131 (CMA 1993); United States v. Turner, 25 MJ 324 (CMA 1987).
The evidence of record is adequate to meet
this standard. The Government introduced evidence to show that appellant
first made the conscious decision to not invoke medical assistance during
her pregnancy or childbirth and then was not attentive to the health or
medical condition of her child for over an hour after delivery. We need
not decide whether either factor, standing alone, would be sufficient to
demonstrate culpable negligence, because together they provide a basis
upon which a reasonable factfinder could have found that her actions, "when
viewed in the light of human experience, might foreseeably result in the
death of" her child, "even though death would not necessarily be a natural
and probable consequence of the act or omission." See para. 44c(2)(a)(i),
supra.
Moreover, there is no evidence in the record
that would cause a reasonable factfinder to reject this conclusion. This
is not a case of an unexpected delivery in an area where medical attention
was not available. The delivery was rapid and not drawn-out or incapacitating.
Immediately after the delivery, appellant was able to clean up the evidence
of the childbirth and to evacuate herself, her child, and the bloody clothes
and rags from her ship so that her secret would not be discovered. There
is no evidence of any complications with the birth or any flaws or defects
with the child that could not easily have been remedied.
Under these circumstances, the evidence, when
viewed most favorably toward the prosecution under Jackson, provides
an adequate basis upon which the factfinders could reasonably find beyond
a reasonable doubt that appellant owed a duty of care to her child and
that she was culpably negligent in fulfilling that duty. Compare State
v. Osmus, 276 P.2d 469, 471 (Wyo. 1954), with State v. Shepard,
124 N.W.2d 712, 722 (Iowa 1963), and Vaughn v. Virginia, 376 S.E.2d
801, 804 (Va.App. 1989).

III. LEGAL SUFFICIENCY OF THE EVIDENCE OF FALSE
OFFICIAL STATEMENTS (ISSUE VIII)
In United States v. Solis, 46 MJ 31
(1997), we held that statements to investigators could be prosecuted under
Article 107, UCMJ, as false official statements, and rejected application
of the so-called "exculputory no" docrine to Article 107. In Solis,
we took note of paragraph 31c(6)(a) of Part IV of the Manual, supra,
which states:



A statement made by an accused or suspect
during an interrogation is not an official statement within the meaning
of the article if that person did not have an independent duty or obligation
to speak.



We observed that --



[b]ecause this guidance [in paragraph 31c(6)]
is not based upon the statutory elements of the offense [under Article
107], it does not impose upon the prosecution an affirmative obligation
to prove such an independent duty or obligation.



46 MJ at 35. In view of the fact that the accused
in Solis did not rely on the Manual's provision at trial, we held
that he could not assert it on appeal. We reserved judgement as to whether
the applicable Manual provisions were "intended to establish a procedural
right that can be invoked by an accused or whether they constitute internal
guidelines intended only to regulate government conduct." Id. at
35-36.
We are presented with a similar situation in
this case. Appellant's contention has originated only on appeal. At trial,
she did not assert the Manual provision as a defense to her prosecution
under Article 107, and there were no motions before or during trial touching
on this issue. Instead, the defense at trial was strictly mistake-of-fact,
aimed at negating the elements of falsity and intent to deceive. See
para. 31b(2) and (4), supra.
Under these circumstance, appellant has not
preserved the issue of whether paragraph 31c(6)(a) "can be invoked by an
accused to defend against a charge under Article 107." Solis, 46
MJ at 35.

IV: DECISION
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.


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