

   
   
   
   U.S. v. Riley



IN THE CASE OF
UNITED STATES, Appellee
v.
Leslie D. RILEY, Airman
U.S. Air Force, Appellant
 
No. 98-0146
Crim. App. No. 32183
 
United States Court of Appeals for the Armed
Forces
Argued November 18, 1998
Decided June 14, 1999
GIERKE, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN and EFFRON, JJ., joined. CRAWFORD,
J., filed a dissenting opinion.

Counsel
For Appellant: Robert E. Watson (argued);
Colonel Douglas H. Kohrt and Captain Harold M. Vaught (on
brief); Lieutenant Colonel Ray T. Blank.
For Appellee: Captain Steven D. Dubriske
(argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Michael
J. Breslin (on brief); Colonel Brenda J. Hollis and Major
J. Robert Cantrall.
Military Judge: Terence A. Curtin

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

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-included 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-included 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 from 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-included 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-included offenses. His proposed instruction would have advised
the court-martial that an element of the lesser-included 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-included 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-included
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 (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 (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.
FOOTNOTES:
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.
 
 
CRAWFORD, Judge (dissenting):
I disagree with the majority as to the holding
of the Court of Criminal Appeals. ___ MJ at (10-11). The court differentiated
between disregard for the foreseeable consequences of refusing to seek
medical assistance and finding appellant obstructed medical care "with
a culpable disregard for the foreseeable consequences to her newborn daughter."
47 MJ at 608. Additionally, the failure to summon medical attention was
only removed from the panels consideration, and subsequently from the
court's, as to negligent homicide. The facts reveal a calculated effort
by appellant to act as an obstacle between her babys struggle to survive
and the medical care offered to her. It would be a true miscarriage of
justice to reverse the conviction in this case.
On July 3, 1995, appellant, herself 19 years
old, gave birth to a full-term and otherwise healthy baby girl in an emergency-room
bathroom at Dyess Air Force Base, Texas. Until that day, she had fully
denied her pregnancy to friends, doctors, and, possibly, even herself.1
A hospital custodian found the baby dead in the bathroom trashcan under
many paper towels. An autopsy revealed that the baby had been born alive
and had died from a "crush" injury to her skull.
Apparently, appellant had her first and only
sexual experience while drunk one night at Tech School shortly after joining
the Air Force. Though she was gaining weight despite dieting, went without
menstruation for one year, suffered unusual cramping and lower back pain,
had cravings and oily skin, and experienced occasional spotting, she claims
she at no time thought she was actually pregnant. Particularly during the
latter part of her second trimester and her third trimester, appellant
spoke to several friends about her concerns that she had not had a menstrual
cycle in months and that she had severe cramps. She even performed a home
pregnancy test, which turned out positive. Yet, she continually denied
she could be pregnant and sought other explanations for these symptoms
of pregnancy. Her friends, who thought appellant was a virgin, agreed with
her self-diagnosis, but entreated her to see a gynecologist for a professional
explanation.
Appellant made an appointment at the OB/GYN
clinic, but canceled it. She also went to the emergency room for menstrual
cramps or flu-like symptoms on at least two occasions. She adamantly denied
that she could be pregnant when the subject was broached by the attending
physician and refused a pelvic examination which would have revealed her
true state of pregnancy.
On the day she went to the emergency room and
eventually gave birth, she told the first doctor to see her, as well as
the emergency room technicians, that she was suffering severe back pain
from a racquetball injury. When the pain medication she was given for her
professed symptoms did not have any effect and a second doctor approached
her, she told him that she was also suffering severe cramps that might
need additional pain killers. At this point, she told him that she was
beginning her first menstrual cycle since June 1994. When the doctor asked
if she could be pregnant, she said no, though he eventually persuaded her
to give blood for a pregnancy test.
Appellant refused to lay upon the gurney while
the blood was being drawn, indicating that she was more comfortable and
the pain was less severe when she stood or squatted. While waiting for
the pregnancy test results, Dr. Chengson went to his office to study some
files.2 Appellant asked
a technician where the bathroom was located. She was in the bathroom for
45-50 minutes.
She stated in her interview with an Abilene,
Texas, detective and a military investigator that when she went into the
bathroom, she sat on the toilet and pushed instinctively, feeling like
she was about to have a strong bowel movement. After a couple of pushes,
she looked down and saw "hair that wasnt" hers. At some point, the evidence
shows, she entirely removed her panties, shorts, and sneakers. According
to appellants statement, after another push or two, the baby "squirted
out" onto the floor face-up. Also, according to her statement, the infant
never cried or moved or opened its eyes; did not have a heartbeat that
she could feel; and did not respond to appellants prodding and slapping
her. She washed the baby off, pulled the umbilical cord from her, flushed
the placenta and the cord down the toilet, put the baby in the trash, and
then tried to clean the blood from the floor. Two technicians knocked on
the door a total of three times to see if she was okay, and she always
responded calmly that she was fine. The third time, she requested a mop,
stating that she had been sick in the bathroom and wanted to clean it up.
The technician told her someone else would clean it up and that Dr. Chengson
and a chaperone were waiting to see her.
When appellant emerged from the bathroom, she
was walking erect but gingerly, and seemed to be in less pain. In fact,
she asked if she could go home. Dr. Chengson told her the pregnancy test
results were positive and that he needed to do an abdominal and pelvic
exam. The examination revealed a fundus consistent with about 16 weeks'
pregnancy, which, coincidentally, is also consistent with that just following
the birthing process. He asked her to prepare for a pelvic exam. Appellant
told the chaperone that she had injured her vaginal area rollerblading
the day before and that she had packed her bleeding vagina with paper towels.
However, the testimony of one of appellants friends was that they had
wanted to go rollerblading, but had been unable to borrow any blades.
Dr. Chengson was shocked at the amount of trauma
to appellants vagina and suspected a mutilation attack or vicious rape.
Pursuant to hospital practice, he called for the assistance of the OB/GYN
doctor on-call. When Dr. OYoung and her chaperone arrived to continue
the pelvic exam, she too was shocked at the trauma. She was also concerned
about the bleeding and the health of the baby, so she performed an ultrasound,
which revealed no baby in the womb but a cluster of either blood clots
or a part of the placenta still attached to the uterus. She asked appellant
several times whether she had passed any fetal tissue, baby parts, or a
fetus, but appellant always answered in the negative. While Dr. OYoung
was out of the room attempting to get appellant admitted to the OB/GYN
clinic for care, appellant asked the chaperone if she had miscarried and
seemed to latch on to that explanation.
It was at this time that the custodian discovered
the babys body in the trashcan. Dr. Chengson called Dr. OYoung over and
they both examined the baby, concluding that it was dead and beyond resuscitation.
They also both noticed a rolled up paper towel protruding from the babys
mouth. However, that towel was never observed by the investigators and
was not mentioned by the court below. Dr. OYoung searched the trash bag
for the placenta, but never found it. Assuming that the baby was appellants,
Dr. OYoung determined that surgery would be needed to confirm that the
placenta was not still in her uterus, bleeding out. The medical staff agreed
that no one was to tell appellant about the discovery, that the crime scene
should be preserved, and that the Air Force investigators and civilian
police should be notified.
The autopsy revealed signs that the baby had
been born alive, including evenly aerated lungs and a hemorrhage where
the umbilical cord had been yanked from the babys body. In addition, the
autopsy revealed that the cause of death had been a "crush injury of the
head that ha[d] fractured the skull." The medical examiner also found abrasions
on the babys neck "consistent with and suspicious of fingernail markings."
Thus, the court below found appellant guilty
of the lesser-included offense of involuntary manslaughter. The court determined
that "based on the circumstances of this case, the members would have adjudged
the maximum available punishment of a dishonorable discharge, 10 years
confinement, forfeiture of all pay and allowances, and reduction to E-1,"
which it found an appropriate sentence. 47 MJ at 609.
The only other issue before the Court of Criminal
Appeals was whether appellant was prejudiced by her trial defense counsels
conflict of interest, in that they "could not have devoted their full attention
to appellant when they had to defend themselves against accusations of
unethical conduct." Id. Though this issue is not raised before this
Court, the relevant facts may have some application to our consideration
of some of the raised issues. Specifically, the trial defense team was
the object of an informal, and then formal, ethics inquiry beginning in
April 1996. "Ultimately, the Judge Advocate Generals Advisory Committee
on Ethics and Standards determined that both defense counsel knew before
sentencing that the judges instruction [allowing the members to reconsider
their findings after they had been announced, as requested by defense counsel]
conflicted with RCM 924(a) and they violated the rule of candor toward
the tribunal by failing to bring the discrepancy to the judges attention....
Both trial defense counsel received letters of admonishment from the AFLSA
Commander...." Id. The court below found appellants argument unpersuasive.
Id. at 610.

DISCUSSION
A. The Instructions on Appellants Failure
to Act or Summon Medical Care:
During an Article 39(a) session at which the
military judge, trial counsel, and defense counsel discussed the proposed
instructions, individual defense counsel noted his concern that, while
the Charge and specification did not allege appellants failure to act
as a means of culpability, the proposed instructions did. The military
judge agreed with the defense counsel to a point. He agreed to strike "or
failed to summon medical assistance which was immediately available for
the infant" where it appeared in the instructions. Trial counsel concurred,
stating that the Government "ha[d] never been proceeding under the theory,
and do not intend to argue, that [appellants] culpability stems from failure
to summon medical assistance."
However, the military judge was very adamant
about retaining language referring to appellants failure "to prevent the
fracture of" her babys skull, stating that, "based on facts and the evidence
that has been available to the defense, I would think, since this interview
[depicted in Prosecution Exhibits 36 and 37] was taken on 4 July 1995."
The following colloquy followed:



IDC: If, indeed, we have been put on notice
that her failure to prevent the fracture of her daughters skull was somehow
an issue, we would have unequivocally put on Mental Health testimony regarding
her state of mind in the restroom and her ability to prevent the fracture
of Baby Girl Rileys skull. That would be an additional...
MJ: I would just simply say that it seems inconceivable
to me that anyone who has read the transcript of that interview on 4 July
1995 would not be on notice that thats an issue. To the extent that youve
made your record on that, then that seems to me to be well preserved. Notwithstanding
that position, Im going to instruct as I have set forth there.
IDC: Understood, your Honor. With regard to
the part that you have agreed to remove from this instruction, we would
request a specific instruction to the members that Airman Rileys failure
to summon medical assistance from the bathroom is not to be considered
in the issue of negligent homicide.
MJ: All right. Does the government have any
position with regard to that request?
TC: Well only if youre going to specifically
mention what that fact cannot be used for. Then we would also request that
you instruct something along the lines of, however, it could be considered
by them in the areas of, perhaps, intent or consciousness of guilt.
MJ: You see the point there? Are you willing
to...
IDC: I agree, your Honor. I think the danger
is great enough to justify what might seem, on its face, to be a harmful
instruction. Perhaps the language that Captain Meier is concerned about
would be more properly inserted at the point in the instructions where
they talk about circumstantial evidence. I think thats where Captain Meier
was going with that.
MJ: Well, I think if Im going to make a specific
instruction along those lines, it would appear to me that rather than putting
it in two parts in the instruction, it would seem to naturally flow that
one follows the other.
IDC: To some extent, I agree.



The next morning, individual defense counsel brought
the issue up again in the following colloquy:



IDC: Yes, your Honor. I beg the courts forgiveness
for not bringing this up yesterday during our instructions session. As
we thought last night about the instruction on negligent homicide, in particular,
that portion of the instruction that deals with Airman Rileys failure
to act, failure to prevent the fracture of her infants skull, of course,
it was our position from the outset that that instruction was inappropriate.
As we came to understand the courts position that perhaps Airman Riley
could have prevented the fracture, for example, if she had caught the baby
during delivery, we began to believe and believe this morning that an instruction
on physical impossibility should be given if, in fact, that is what the
court is thinking in the arena of this failure to act.
MJ: That would appear to me to be whats naturally
raised by the evidence, based on the facts as we know them. The failure
to prevent the fracture in the negligent homicide specification would,
in the courts view, be along the lines you stated, some action or some
inaction on Airman Rileys part which amounts to negligence, which did
not prevent this skull of the infant being fractured, the fracture which
caused the death of the infant....

***
MJ: I believe, regardless of the timing of
this request, defense counsel, that it does appear to be a fair request,
based on the status of the evidence with regard to the lesser included
offense of negligent homicide....



B. Law of the Case:
1. The Doctrine:
The Supreme Court of the United States has held
that "the law-of-the-case doctrine merely expresses the practice of courts
generally to refuse to reopen what has been decided, not a limit to their
power. A court has the power to revisit prior decisions of its own or
of a coordinate court in any ... circumstances such as where the initial
decision was clearly erroneous and would work a manifest injustice."
Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817
(1988), quoting Messenger v. Anderson, 225 U.S. 436, 444 (1912);
and then Arizona v. California, 460 U.S. 605, 618 n. 8 (1983). The
Supreme Court has also noted that the doctrine "directs a courts discretion,
it does not limit the tribunals power."
460 U.S. at 618.
Justice Brennan, joined by Justices Blackmun
and Stevens, wrote a separate opinion in Arizona v. California,
supra, in which they discussed the principle of "finality" and its
application to the law-of-the-case doctrine, writing



that "finality" means different things in
different contexts, and that the law accords finality different weight
depending on the context.... In a case such as this, when a party seeks
reconsideration of questions decided at an earlier stage of a single, continuing
litigation, the law allows courts more discretion than in a case in which
the party wants to upset a final judgment in another proceeding, before
another judge. See generally 1B J. Moore & T. Currier, Moores Federal
Practice [paras.] 0.401, 0.404[1] (1982) (hereinafter Moore); cf. United
States v. United States Smelting Refining & Mining Co., 339 U.S.
186, 199 (1950).
A final judgment makes a difference. It marks
a formal point at which considerations of economy, certainty, reliance,
and comity take on more strength than they have before the judgment. A
courts decision to reconsider a prior ruling before the case becomes final,
however, is ultimately a matter of "good sense." Moore § 0.404[10],
at 573. Concern for finality remains an important policy, even before final
judgment. In the absence of some overriding reason, a court should be reluctant
to reopen that which has been decided merely to correct an error, even
though it has the power to do so. Nevertheless, federal courts have traditionally
thought that correcting a manifest injustice was reason enough to reconsider
a prior ruling....



460 U.S. at 643-44 (citations omitted) (concurring
in part and dissenting in part).
2. The Facts of This Case:
Appellants law-of-the-case argument is based
on the claim that the Court of Criminal Appeals' decision "imputes liability
on the appellant for failing to seek medical care." Final Brief at 9. Technically,
that is not the basis for the lower courts decision. They found her guilty
of involuntary manslaughter through culpable negligence based on her "disregard
for the foreseeable consequences of refusing and impeding assistance in
the delivery and care of her child." The court differentiated this from
the "failure to seek medical care," on which it recognized "that trial
defense counsel persuaded the military judge not to instruct the members,"
stating that appellant "did not merely fail to seek medical care  she
obstructed it with a culpable disregard for the foreseeable consequences
to her newborn daughter." 47 MJ at 608.
This effort to distinguish was not necessary.
First of all, the military judge himself very
consciously made the same distinction, as evidenced in those colloquies
detailed in Part A of this discussion. Second, in reading through the actual
instructions given to the members, I note that the "failure to summon medical"
attention was only removed from their consideration with regard to the
one lesser-included offense of negligent homicide, about which the military
judge specifically said: "In deciding the issue of negligence, you are
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 military judge did have the members scratch
"or failure to act" from the discussion of proximate cause in relation
to culpable negligence during the involuntary-manslaughter portion of the
instructions, but again, the Court of Criminal Appeals found appellant
guilty of an act of obstruction, not a failure to act by failing to seek
help. Otherwise, no instruction was given for this lesser-included offense
similar to that given for negligent homicide. In fact, the military judge
instructed the members that to find appellant guilty of involuntary manslaughter,
they had to find that she "by culpable negligence, killed or caused
the death of Baby Girl Riley." (Emphasis added.)
3. The Case Law:
Appellant cites United States v. McKinley,
27 MJ 78 (CMA 1988), in support of his proposition that the law-of-the-
case doctrine applies here. We held in that case that "where (a) the Manual
states that there are no lesser-included offenses; (b) the judge rules
that there are no lesser-included offenses; and (c) counsel agree that
there are no lesser-included offenses, such a ruling becomes the law of
the case, absent plain error materially, prejudicing a substantial
right of an accused." 27 MJ at 80. Here, the lesser-included offense was
never in question; but the theory underlying the charged offense or any
of the lesser-included offenses was. However, given the discussion above,
even that allegation is specious.
Furthermore, appellant overlooks the fact that
the McKinley holding was very narrow and that the Court also noted
the general practice, which is that "we have long recognized that an appellate
court may disapprove a finding because proof of an essential element is
lacking or, as a result of instructional errors concerning lesser-included
offenses, may substitute a lesser-included offense for the disapproved
findings. This is true even if the lesser-included offense was neither
considered nor instructed upon at the trial of the case." 27 MJ at 79.
The Supreme Court has noted that a criminal
conviction cannot be affirmed "on the basis of a theory not presented to
the jury." Chiarella v. United States, 445 U.S. 222 (1980). However,
the facts of that case show that the theory upon which evidence was presented
and the jury was instructed was that the defendant had failed "to disclose
material, non-public information" to the sellers of target corporate stock,
id. at 236, whereas the Second Circuit had affirmed his conviction
on the basis that "anyone ... who regularly receives material nonpublic
information may not use [it] ... without incurring an affirmative duty
to disclose." Id. at 231. The elements of that duty were never presented
to the jury; thus, the Supreme Court reversed.
The case sub judice is far more like the military
case, United States v. LaFontant, 16 MJ 236 (CMA 1983). In that
case, LaFontant was convicted of attempted sale of LSD and possession of
LSD, but the then-Court of Military Review (see 41 MJ 213, 229 n.*)
found that they could approve only the finding of guilty of the attempted
sale and only so much of the specification of possession "as ... [found]
appellant guilty of an attempt to possess LSD at the time and place and
in the amount alleged." 16 MJ at 236. This Court affirmed stating: "That
the members were not instructed on the elements of an attempt as they pertain
to possession is of no consequence since they found the accused guilty
of the consummated possession of LSD, and their finding necessarily included
all the elements of an attempt to possess LSD." 16 MJ at 238.
4. The Manifest Injustice Exception:
The manifest-injustice exception has been recognized
in this Court. For instance, in my opinion concurring in the result in
United States v. Grooters, I noted that "[t]he law of the case
doctrine ... does not apply if the decision below would create manifest
injustice, Dobbs v. Zant, 506 U.S. 357, 358 (1993).... Manifest
injustice and clearly erroneous are concepts equally applicable to decisions
favoring the Government and to decisions favoring the defense." 39 MJ 269,
274 (CMA 1994).
Even if this Court were to determine that the
circumstances of this record require that the law-of-the-case doctrine
apply here, surely this would be an appropriate case for applying the manifest-injustice
exception based on appellants patent criminality. It would be a manifest
injustice if a conviction initially established for premeditated murder
and a life sentence, which was reduced once erroneously and then again
on appeal, were to be reduced to nothing because of rigid adherence to
a mere rule of practice: the law-of-the-case doctrine.
In addition, the record implies that the defense
team did in fact get the same evidence before the members that they would
have wanted the members to see had the defense pursued this theory of culpable
negligence at trial and that the members only found it reduced her offense
from premeditated to unpremeditated murder. The members initially found
appellant guilty of the premeditated murder of her daughter. The defense
erroneously urged the military judge to instruct the members that they
could reconsider their findings, when, in fact, the members should not
have had that opportunity. The defense counsel also reminded the members
that they could still reconsider their findings during his argument on
sentencing. The defense team provided the members with a copy of a letter
from Dr. Raisani, the president of appellants sanity board, for consideration
on sentencing. The members specifically noted that that letter "caused"
them to reconsider their findings. As a result, they changed the sentence
from mandatory life to a panel-imposed 25 years.
During an Article 39(a) session on sentencing
instructions, individual defense counsel made the following observation
in support of submitting Dr. Raisanis letter to the members: "One of the
biggest concerns in this court, one of the concerns in this court anyway
has been Airman Rileys failure to summon help. That failure to make
any kind of notification could easily be seen by these members as aggravation.
If we cant attempt to explain a matter in aggravation, then Airman Rileys
rights to present extenuation and mitigation dont mean much.... This is
Dr. Raisanis opinion as to what her state of mind was certainly leading
up to that point." (Emphasis added.) The members apparently thought Dr.
Raisani made a compelling argument against life imprisonment. However,
they did not find it so compelling that it required no confinement or even
as little confinement as the trial counsel requested (a minimum of 20 years).
5. Pleadings-Elements Approach:
Finally, appellant argues that due process requires
that the defendant be on notice of the charges against her, and that in
the military, following a line of cases on multiplicity, that means not
only that the offense be defined by statute, but also by the specifications.
Final Brief at 9-10. It is important to note that this Court has never
said that either the language of the specification or the elements of the
statute take precedence in defining the offense. In United States v.
Weymouth, 43 MJ 329, 333 (1995), for instance, this Court noted that
the specification and the statute are read together to provide "notice
of the essential elements of the offense." The Court also noted that the
function of this approach was "to inform the accused of the conduct charged,
to enable the accused to prepare a defense, and to protect the accused
against double jeopardy." 43 MJ at 333.
In my opinion concurring in the result in United
States v. Neblock, 45 MJ 191, 203 (1996), I noted that the multiplicity
test is not as simple as all that, stating:



We follow the statutory-elements test: If
the elements are different, one can presume, in the absence of clear congressional
intent, that the offenses are not multiplicious.
One cannot literally apply the statutory-elements
test when examining offenses under Article 133 or 134,.... Thus, in examining
those offenses, one must look at the elements in Part IV of the Manual.
If the elements are the same, then one employs the pleadings-elements test....



(Citations omitted.) No matter which approach
you take, there is no clear indication that appellant was uninformed of
the misconduct with which she was charged or unable to prepare her defense
or that she will be at risk of double jeopardy. This is similar to the
variance test and is discussed in greater detail below.
C. Variance:
This Court has held that "even where there
is a variance in fact, the critical question is one of prejudice." United
States v. Lee, 1 MJ 15, 16 (CMA 1975), citing United States v. Craig,
8 USCMA 218, 24 CMR 28 (1957); United States v. Hopf, 1 USCMA 584,
5 CMR 12 (1952). With regard to prejudice, the Court has established this
two-part test: "(1) has the accused been misled to the extent that he has
been unable adequately to prepare for trial; and (2) is the accused fully
protected against another prosecution for the same offense." 1 MJ at 16.
As noted above, appellant was on notice of
what misconduct she was charged with and she was able to prepare an adequate
defense. Also as noted above, she brought that same evidence which she
alleged she would have brought under other circumstances before the members
during the sentencing phase of the court-martial. And, because of the erroneous
instruction that the members could reconsider their findings following
presentation of that evidence, the members considered that evidence in
reducing their finding of premeditated murder to unpremeditated murder.
Thus, there was, in any event, no prejudice.
Appellant does not even bring up the double
jeopardy part of the test. As the Lee opinion points out, it would
not be applicable to the facts here anyway. The Court noted in Lee
that "protection against double jeopardy can be predicated upon the evidence
in the record of the prior prosecution. An examination of the evidence
and the findings in this record demonstrates sufficient safeguards exist
against another charge of wrongful possession of marijuana on the date
involved.... Since the facts of record can readily be established, the
second arm of the test for determining lack of prejudice is fully met."
1 MJ at 17. The record here is similarly fact-explicit and sufficient to
guard against a second prosecution.
In those cases where this Court has found a
fatal variance, the circumstances have been far more blatant and the opinions
have been fact-specific. For example, in United States v. Wray,
17 MJ 375 (CMA 1984), the accused was charged with larceny by the taking
on August 6, 1980; however, the members found him guilty of larceny by
withholding on August 25, 1980.
In addition, where the Supreme Court has found
a variance which "offends the most basic notions of due process," it has
been because of a discrepancy between the basis upon which the Court of
Appeals sustained a verdict and both the indictment and the proof at trial.
See Dunn v. United States, 442 U.S. 100, 106 (1979).
D. Sufficient Intervening Proximate Cause:
Appellant correctly notes that the medical-malpractice
evidence presented by the defense could be considered as an intervening
proximate cause for the lesser-included offenses of involuntary manslaughter
and negligent homicide. See also United States v. Taylor,
44 MJ 254 (1996). However, I reject the argument that because the members
returned a verdict first on premeditated murder and then on unpremeditated
murder and therefore never reached the proximate-cause issue, that the
Court of Criminal Appeals has denied appellant the right to have her verdict
determined by the panel. By this reasoning, the Courts of Criminal Appeals
could never substitute a lesser-included offense for the offense found
at a court-martial; yet, this is a well-regarded principle of the military
appellate process. See United States v. McKinley, 27 MJ 78.
Furthermore, appellants argument ignores the
special factfinding powers of the Courts of Criminal Appeals. See
Art. 66(c), UCMJ, 10 USC § 866(c) (1994). Despite appellants assertion
to the contrary, Final Brief at 15 n.4, there is evidence in the Court
of Criminal Appeals opinion that it considered the evidence of medical
malpractice, 47 MJ at 608 ("[W]e note that medical professionals also overlooked
Airman Riley's pregnancy on three occasions.")
E. Legal Insufficiency:
The standard of review for legal insufficiency
is "whether, considering the evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found all the essential
elements beyond a reasonable doubt." United States v. Turner, 25
MJ 324 (CMA 1987), citing Jackson v. Virginia, 443 U.S. 307, 319
(1979).
Appellant argues that there was no evidence
at trial that any of the three times a medical technician knocked on the
bathroom door the baby was actually alive. Final Brief at 14. The Court
of Criminal Appeals, however, detailed appellants culpability as follows:



Dr. Chengson began the process of providing
care and assistance when he ordered the pregnancy test. That care remained
present and available until the death of Airman Rileys daughter. Airman
Riley specifically turned that care and assistance away three separate
times while she was in the restroom. In doing so, she acted as a wall between
her child and the immediately available care that the child needed. These
acts demonstrated a degree of carelessness greater than simple negligence
and were accompanied by a culpable disregard for the foreseeable consequences.



47 MJ at 608. Thus, the three times that medical
technicians knocked on that bathroom door are the primary acts of obstruction
on which the affirmed conviction of involuntary manslaughter was based.
However, it should not be assumed that these
are the only acts which led the court to its decision. In fact, her decision
to leave the care begun by Dr. Chengson and to go into the bathroom to
give birth could be considered an act of obstruction if it is believed
that she knew she was in labor, without getting into why she did not summon
help once she was in the bathroom and actually giving birth.
Despite this, the three knocks on the door
are the primary acts with which we must be concerned. Viewing the evidence
in the light most favorable to the prosecution, I note that there is evidence
in the record from which a factfinder could find that the baby was alive
one or more of those times.
First of all, there is the autopsy and the
testimony of Dr. Krouse, the deputy chief medical examiner. Dr. Krouse
indicated that one of the three ways he could determine that the baby girl
was born alive was the "[f]resh umbilical stump with fresh underlying hemorrhage."
Appellant stated in her interview with Air Force and police investigators
that she "ripped" the umbilical cord from the baby and "ripped" or "pulled"
the placenta and cord from her uterus. Dr. Krouse testified that after
death, there is "precious little hemorrhage" because "[y]ou have to have
arterial blood pressure to get this kind of soft tissue hemorrhage." Thus,
the factfinder could find that the hemorrhage beneath the umbilicus had
to have occurred before the baby girl was dead. And, given appellants
statements to the investigators, this hemorrhage occurred before the afterbirth
was naturally delivered.
Also, in response to a members question, Dr.
Krouse responded that the baby was breathing less than 4 to 6 hours, but
could give no more precise "estimate." Appellant was in the bathroom for
approximately 45 minutes. The first knock on the door was approximately
30 minutes after she had gone into the bathroom. Given the doctors estimate,
the approximate time she was in the bathroom before the first technician
knocked on the door, and the evidence of the babys hemorrhages, the factfinder
could have found that the baby was alive at least when the first knock
came.
Additionally, defense counsel made an effort
to ask the medical personnel if they even tried to resuscitate the baby
when they found her in the bag, approximately a half hour after appellant
exited the bathroom. While the defense team clearly tried to imply that
this was part of their medical-malpractice defense, the factfinder could
infer that there might have been a chance to resuscitate the baby at some
time between her birth and her discovery in the trashcan, especially when
viewed in conjunction with Mrs. Foxs testimony. Mrs. Fox was the chaperone
who assisted Dr. OYoung. She testified that appellant asked her how long
a baby could survive on its own. The factfinder could infer from that statement
that the baby was still alive when appellant left the bathroom.
Furthermore, this Court has held that where
"the evidence is sufficient to establish an included offense, this Court
may affirm the included offense, provided that it does not do so on a theory
not presented to the trier of fact." United States v. Standifer,
40 MJ 440, 445 (CMA 1994). As noted in the discussion above, the affirmance
here was on a theory amply covered at trial.
Thus, based on the evidence presented to the
members, I would affirm appellants conviction for involuntary manslaughter.
To do otherwise would result in a true miscarriage of justice.
FOOTNOTES:
1 Defense counsel
raised the possibility that appellant was in a state of psychological denial
of her pregnancy; but they never raised any mental-defect-type defense.
It was undetermined at trial whether she knew she was pregnant and just
chose not to deal with it, hoping it would go away, or she had honestly
convinced herself that all the changes in her body could not be related
to a pregnancy.
2
It is implied in his testimony that one of the files he studied at this
time was that comprising the records of appellants visits to the hospital.
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