Martineau v. Angelone, 93-15955
| Decision Date | 17 May 1994 |
| Docket Number | No. 93-15955,93-15955 |
| Citation | 25 F.3d 734 |
| Parties | Paula MARTINEAU & Georganna Lagen, aka King, Petitioners-Appellants, v. Ron ANGELONE, Director of Prisons; Frankie Sue Del Papa, Attorney General for the State of Nevada, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas D. Beatty, Las Vegas, NV, for petitioner-appellant Martineau, Aubrey Goldberg, Greenberg, Goldberg, Raby & Martinez, Las Vegas, NV, for petitioner-appellant Lagen.
William P. Henry, Deputy Atty. Gen., Las Vegas, NV, for respondents-appellees.
Appeal from the United States District Court for the District of Nevada.
Before: GOODWIN, NORRIS and O'SCANNLAIN, Circuit Judges.
Opinion by Judge GOODWIN
Paula Martineau and Georganna Lagen, Nevada state prisoners, appeal the denial of their petitions for writs of habeas corpus. A Nevada state jury convicted them of involuntary manslaughter and child abuse following the death of Lagen's 27-month-old daughter, Michelle. The Nevada Supreme Court reversed the manslaughter conviction for insufficient evidence, finding that the state had not proven that either appellant injured Michelle or aided and abetted the other in doing so. King v. State, 105 Nev. 373, 784 P.2d 942 (1989) (per curium). However, the Nevada Court affirmed the child abuse conviction, concluding that appellants delayed in seeking medical care after Michelle was injured. Id.
On federal habeas, appellants argue (1) that the evidence did not show that they in fact delayed in seeking medical care; (2) that the state's use of battered child syndrome testimony violated due process; (3) that the Nevada Supreme Court violated the ex post facto clause by relying on a child abuse statute passed after Michelle's death; and (4) that the indictment failed to provide adequate notice of the charges because it alleged multiple theories of liability. We agree that the state failed to prove that King and Martineau delayed in seeking appropriate medical care and therefore REVERSE. 1
In the summer of 1984, appellants, a lesbian couple, were living together in Las Vegas with Lagen's two children, then four-year-old Robert and then 27-month-old Michelle. Lagen and the children's father, Peter King, had separated the preceding summer and Lagen had custody of the two children. Lagen, an officer in the United States Air Force, worked at Nellis Air Force Base in Nevada. While she was at work, the children stayed at the home of a baby-sitter, Andrea Goode. By long-standing arrangement, the children slept at Goode's house on Wednesday nights.
On Thursday, July 19, 1984, Lagen picked the children up at 3:30 p.m. after one of these overnight stays. According to Goode, Michelle seemed healthy, although unusually cranky and irritable. Goode, who was caring for a number of other children on July 19, did not see Michelle sustain any obvious injuries while in her care, and attributed the crankiness to teething or her recent chicken-pox.
Some five and a half hours later, at 8:55 p.m., Martineau called 911 and reported that Michelle was not breathing. Clark County Fire Department paramedics responded and found Michelle lying face up on the dining room floor. She had no obvious injuries or bruises, but was not breathing and had no pulse. Lagen and Martineau said that they did not know what had caused Michelle's condition, but that, after dinner, Lagen suddenly noticed that Michelle was foaming at the mouth. They attempted CPR, and then called 911.
The paramedics were unable to revive Michelle and, by the time she arrived at the emergency room at 9:10, she was brain-dead. She died several days later.
Martineau and Lagen were charged with murder, aiding and abetting murder, and child abuse. They were tried jointly, in April, 1987, almost three years after Michelle's death.
At trial, the state's theory was that Martineau and Lagen had beaten or shaken Michelle, causing her death. The state was unable to produce a coherent medical explanation of Michelle's injuries or any direct evidence of child abuse. Michelle showed no signs of previous abuse or neglect, and no one testified that either Lagen or Martineau beat Michelle on July 19 or on any other occasion. Instead, the state relied primarily on circumstantial evidence and character testimony, arguing (1) that medical evidence suggested Michelle must have suffered a traumatic head injury while in appellants' custody; (2) that her injury likely caused obvious impairment and was unlikely to be accidental; (3) that Lagen and Martineau were under stress because of Peter King's custody suit; and (4) that Lagen and Martineau's accounts of the day's events were inconsistent, suggesting that they were lying about Michelle's injuries.
The medical evidence, which dominated the trial, can only be described as confusing. In essence, the doctors agreed that Michelle probably suffered a traumatic head injury, 2 but disagreed about the likelihood that the injury was caused by a fall, 3 about whether Michelle had a skull fracture, 4 about whether a certain mark was a bruise or a burn from a hospital heating pad, about what symptoms Michelle's injury would cause, and about the effects of her medical treatment, respirator and embalming. All of the doctors conceded that the injury could have been accidental and none could determine the exact time of injury.
In addition to this voluminous, but inconclusive, medical evidence, the state presented testimony from several neighbors, Michelle's father, nurses, the paramedics, and, over defense objections, an expert in battered child syndrome, Dr. Krugman. These various witnesses testified about appellants' discipline practices, about various allegedly inconsistent accounts the appellants had given of the events of July 19, and about appellants' demeanor during Michelle's hospitalization and death. Dr. Krugman opined that "discrepant history"--or an account of a child's injuries that conflicts with her medical condition--is evidence of child abuse. 5
The only direct evidence about the events of the evening were appellants' out of court statements to police, paramedics, doctors and nurses, and Lagen's trial testimony. 6 According to these statements, after coming home from the babysitter's, the children played alone in Robert's room for a brief period, and then went swimming in the backyard pool. Since Lagen and Martineau were teaching Michelle to swim, swimming included throwing Michelle into the pool several times in order to teach her how to save herself if she fell in accidentally. The children also ran laps around the swimming pool for exercise. Although Michelle did, at one point, swallow and throw up some pool water, Lagen and Martineau felt this was nothing out of the ordinary. They said they did not see Michelle fall or sustain any obvious injuries while swimming and running.
After swimming, Michelle appeared very sleepy, and fell asleep at the dinner table. Appellants said they did not think her sleepiness was anything unusual, as Michelle was up later than usual and had a long, active day. Lagen or Martineau (each said it was the other one) took her from the table and laid her down on the floor near the dining room entrance-way. Robert went up to bed; Martineau went outside to walk her dogs.
Lagen stayed inside and did the dinner dishes while Michelle slept on the floor. After doing the dishes, Lagen looked over at Michelle and noticed that she was foaming at the mouth and having trouble breathing. She attempted CPR and then ran to the door and called to Martineau. 7 They again attempted CPR, and then, realizing that Michelle needed more help, Martineau called 911.
The state jury found both appellants guilty of child abuse and involuntary manslaughter. The trial judge denied appellants' request for a special interrogatory to determine the basis of the jury's decision. The judge sentenced each appellant to twenty years for child abuse and six years for involuntary manslaughter.
The Nevada Supreme Court reversed appellants' manslaughter conviction for insufficient evidence. King v. State, 105 Nev. 373, 784 P.2d 942 (1989) (per curiam). According to the court:
no evidence exists that both appellants committed the fatal act. Likewise, no evidence exists that one of the appellants aided and abetted the other in shaking Michelle or fracturing her skull. The fact that both of the appellants were in the home at the time of Michelle's injury does not suffice to prove that one aided and abetted the other.
Id., 784 P.2d at 943-44. The Court nonetheless affirmed appellants' child abuse conviction because:
Nevada's child abuse statute encompasses acts of omission as well as acts of commission. NRS 200.508. Other jurisdictions uphold convictions of parents who failed to immediately seek or attempt to obtain proper medical treatment after finding the child in need of medical attention.... [B]oth appellants were "responsible for the safety or welfare of [Michelle]" NRS 200.508(1)(b). Further, Dr. Carlile testified that Michelle might have survived if brought to the hospital sooner. Consequently, appellants allowed Michelle to "suffer unjustifiable physical pain" when they delayed in obtaining medical treatment for her. Id. Therefore, sufficient evidence exists to convince a jury, acting reasonably, of appellants' guilt beyond a reasonable doubt of felony child abuse.
Id., 784 P.2d at 944 (internal citations omitted). 8
Appellants thereafter filed this habeas action in federal district court pursuant to 28 U.S.C. Sec. 2254. The district court dismissed their petitions, and they appealed.
We review de novo a district court decision denying habeas relief. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113...
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