U.S. v. Wolf, s. 87-1346

• Decision Date: 17 February 1988
• Docket Number: 87-1347,Nos. 87-1346,s. 87-1346
• Citation: 839 F.2d 1387
• Parties: 24 Fed. R. Evid. Serv. 981 UNITED STATES of America, Plaintiff-Appellee, v. Roy WOLF and Lorna Manlolo Wolf, a/k/a Lorna Manlolo McDevitt, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1387

839 F.2d 1387

24 Fed. R. Evid. Serv. 981

UNITED STATES of America, Plaintiff-Appellee, v. Roy WOLF and Lorna Manlolo Wolf, a/k/a Lorna Manlolo McDevitt, Defendants-Appellants.

Nos. 87-1346, 87-1347.

United States Court of Appeals, Tenth Circuit

.

Feb. 17, 1988.

Marvin J. Johnson, Edwards & Johnson, Cheyenne, Wyo., for defendants-appellants.

Richard A. Stacey, U.S. Atty., Cheyenne, Wyo., for plaintiff-appellee.

Before ANDERSON, McWILLIAMS and BALDOCK, JJ.

BALDOCK, Circuit Judge.

Roy and Lorna Wolf were indicted on one count of second degree murder, in violation of 18 U.S.C. Sec. 1111, ¹ and aiding and abetting second degree murder, in violation of 18 U.S.C. Sec. 2. ² A jury found both defendants guilty as charged. Roy Wolf was sentenced to confinement for eighty years, with a minimum of twenty-five years to be served, and specially assessed fifty dollars. Lorna Wolf was sentenced to confinement for eighty years, with a minimum of twenty years to be served and deportation to the Philippines mandatory upon her release, and specially assessed fifty dollars.

Appellant-defendant Roy Wolf was a Staff Sergeant in the United States Air Force stationed at F.E. Warren Air Force Base in Cheyenne, Wyoming. He is married to appellant-defendant Lorna Wolf, who joined him with their family at the base in August, 1985. Their family consisted of three children from Lorna's prior marriage, Lorena McDevitt, Lisa McDevitt, and Jackie McDevitt, and a fourth child resulting from her marriage to Roy.

In July of 1986, Jackie became ill. She complained of a stomachache, vomiting and diarrhea. Lorna took Jackie to two different doctors during the end of July and the beginning of August. Neither diagnosed a perforated bowel, but told Lorna that Jackie had acute gastroenteritis. One of the doctors made a follow-up telephone call to the Wolf residence during the second week of August to ask how Jackie was feeling, and Lorna told him that Jackie's health seemed to be "fine." During July and August of 1986, Esther Gerrish, a friend of Lorna's, repeatedly urged Lorna to seek medical attention for Jackie because of her continuing illness. Lorna told her that she was waiting for money from her ex-husband, Jackie's natural father, to take Jackie for medical treatment. All military personnel and their families have free access to emergency care available at the base seven days a week, twenty-four hours a day.

During the weekend of August 30, 1986, Gina Tobor, a family friend, had dinner at the Wolf home. She testified that she witnessed both Lorna and Roy hit Jackie in the face and pull her hair after dinner because Jackie was so ill that she was unable to eat or to ask to be excused from the table. Gina said that Roy then put Jackie in the backyard with the dog, and later immersed her in a bathtub of cold water. On September 1, 1986, Gina Tobor's husband, Sergeant Franklin Tobor, called emergency medical personnel to the Wolfs' house after Roy called him to tell him that Jackie was dead. When they arrived, they found Lorna clutching Jackie tightly. Jackie was dead and her abdomen was unusually distended.

An autopsy revealed that the cause of death was sepsis, a blood poisoning condition caused by peritonitis which resulted from a perforated bowel. Dr. Jill Gould, a forensic pathologist and a deputy coroner with the Denver County Coroner's Office, took microscopic sections of several organs in Jackie's body, especially those around the bowel and the perforation, and some gross tissue samples. She also took external photographs of Jackie at the autopsy, but did not take photographs of the internal tissues. In addition, Dr. Gould discerned that Jackie had suffered a severe neck injury, occurring between four hours and two days prior to her death. She also found fifty-nine bruises and abrasions covering Jackie's body.

Defendants appeal on several grounds. First, they allege that they were denied due process because the government failed to produce gross tissue samples from Jackie's corpse after a court order was issued requiring production of all relevant medical evidence. Second, they maintain that the trial court erred in admitting statements against them under the coconspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E), ³ based on its summary finding that the statements were made "in furtherance" of a conspiracy between Roy and Lorna Wolf to commit child abuse, to conceal that abuse and to not seek adequate medical treatment for Jackie. In the alternative, Roy Wolf claims that the trial court erred in admitting those statements because they were hearsay which did not fit within the coconspirator exception. Finally, the Wolfs propose that their due process rights were violated by the government's misconduct in coercing witnesses to testify in its favor, resulting in a fundamentally unfair trial. We reject these contentions and affirm for the reasons set forth below.

I.

Defendants allege that the government violated their constitutional rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1969), by failing to provide them with gross tissue samples of the deceased. In Brady, the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment...." Id. at 87, 83 S.Ct. at 1196-97; accord United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). Where the defendant has made a specific request and the evidence is withheld, the verdict will be set aside if "the suppressed evidence might have affected the outcome of the trial." United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976). The Supreme Court has defined evidence as material where it creates "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3384; accord United States v. Page, 828 F.2d 1476, 1479 (10th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987). Where the evidence is material such that the omission deprived the defendant of a fair trial, the verdict must be set aside due to the constitutional violation. United States v. Agurs, 427 U.S. at 108, 96 S.Ct. at 2399-400. If the means of obtaining the exculpatory evidence has been provided to the defense, however, a Brady claim fails, even if the prosecution does not physically deliver the evidence requested. United States v. Dupuy, 760 F.2d 1492, 1501 n. 5 (9th Cir.1985).

Consequently, to establish a Brady violation, the defense must prove that: (1) the prosecution suppressed the evidence; (2) the evidence would have been favorable to the accused; and (3) the suppressed evidence is material. See United States v. Latimer, 780 F.2d 868, 871 (10th Cir.1985). In determining whether a Brady violation occurred, this court must not view the suppressed evidence in isolation, but instead must review it in light of the entire record. Trujillo v. Sullivan, 815 F.2d 597, 613 (10th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987) ("Implicit in the standard of materiality is the notion that the significance of any particular bit of evidence can only be determined by comparison to the rest."). The court must examine both inculpatory evidence and exculpatory evidence. Id.

In the instant case, the prosecution did not conceal evidence of the gross tissue samples. The district court ordered that "the defendants' motion for order compelling medical discovery be, and the same is, hereby granted to the extent that only the medical evidence, slides, tests, etc., in the government's possession or at the Denver Coroner's office, or at the Fitzsimmons' base facilities in Colorado shall be produced; ..." Rec. vol. I, doc. 21 at 3. In compliance with the discovery order, the prosecution gave defense counsel the autopsy report made by the coroner, Dr. Jill Gould. The autopsy report listed gross tissue samples as evidence collected during the examination. Autopsy Report, Ct. Ex. 20 at 11-12. Thus, the defense clearly had notice of the existence of that evidence. At oral argument before this court, the government represented that it had instructed defense counsel to contact the coroner directly for any physical evidence that might be needed at trial. The government further represented that it also called, with the approval of defense counsel, defendant's medical expert, Dr. Eckert, and asked the doctor to call the coroner for any information or evidence necessary for his trial testimony. Because the prosecution did not suppress the evidence, there was no Brady violation.

II.

Defendants allege that the district court erred by failing to provide the rationale underlying its determination that certain statements were admissible against the defendants under the coconspirator exception. These statements were made by non-conspirator declarants concerning what members of the conspiracy, Roy and Lorna, had revealed regarding the conspiracy. Once the government presents evidence of the conspiracy, the trial court must make a factual determination that the government has established, by a preponderance of the evidence, the following elements: (1) a conspiracy existed; (2) the defendant against whom the declaration is offered was a member of the conspiracy; and (3) the statement was made in the course of and in furtherance of the conspiracy. United States v. Hernandez, 829 F.2d 988, 993 (10th Cir.1987) (citing United States v. Petersen, 611 F.2d 1313, 1330-31 (10th Cir.1979)). In making this determination, the court may consider the hearsay statements as well as the independent evidence presented. Bourjaily v. United States, --- U.S. ----, 107 S.Ct. 2775,...