Stack v. United States

• Citation: 519 A.2d 147
• Decision Date: 17 December 1986
• Docket Number: No. 84-1101.,84-1101.
• Parties: Robert STACK, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

Page 147

519 A.2d 147

Robert STACK, Appellant, v. UNITED STATES, Appellee.

No. 84-1101.

District of Columbia Court of Appeals.

Argued February 4, 1986.

Decided December 17, 1986.

Mark Rochon, Public Defender Service, with whom James Klein and Mark Carlin, Public Defender Service, were on the brief, for appellant.

Daniel S. Seikaly, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Thomas J. Tourish, Jr., and Charles S. Leeper, Asst. U.S. Attys., were on the brief, for appellee.

Before MACK, TERRY, and ROGERS, Associate Judges.

ROGERS, Associate Judge:

Appellant Robert Stack was indicted for the second degree murder, D.C.Code § 22-2403 (1981), of Helen Bataineh, who died on June 8, 1983, as a result of a subdural hematoma. According to the government's theory, Stack caused the fatal hematoma when he struck Bataineh in the face on June 6, 1983. Stack's defense was that he struck her in self-defense and that the government had failed to establish a sufficient nexus between his action and her death one and one-half days later. The jury found him guilty of the lesser included offense of voluntary manslaughter, D.C. Code § 22-2403 (1981). On appeal, he seeks reversal of his conviction on the grounds that: (1) the in limine limitation of cross-examination of a key government witness violated his Sixth Amendment right to confront witnesses; (2) the jury instructions failed to present fairly the defense theory in violation of his right to a fair trial; (3) the admission of the videotaped deposition of a key government witness, who the government failed to show was unavailable to testify at trial, violated his confrontation rights and Super. Ct. Crim.R. 15; and (4) there was insufficient evidence his blow was the cause of death. We agree that Stack's first and second contentions require reversal. We also agree that the trial court erred in ruling that a key government witness was unavailable; however, in view of our disposition, we need not decide whether the error was harmless beyond a reasonable doubt. Finally, we hold there was sufficient evidence of causation; accordingly, we reverse and remand for a new trial.

I

On the morning of June 6, 1983, while on his way to the hospital for treatment, Robert Stack stopped at James Vaughan's house where his girlfriend, Rita Morris, lived. Helen Bataineh, the decedent, who sometimes stayed with Morris, was lying on the living room couch. Stack initially remained outside of the house, then went inside, and an altercation developed between him and Bataineh. Bataineh, who had been drinking since the night before, brought two large German Shepherds into the house and went towards Stack with the dogs. Stack was terrified and yelled for Morris' help. One dog went under a table; Morris took the other dog outside. When Morris returned, she saw Stack take a full swing and slap Bataineh across the left side of the face. The blow knocked Bataineh to a sitting position on the floor. Stack then kicked her twice in the left rib; Bataineh looked dazed. Stack stopped hitting Bataineh after Morris told him to "stop hitting her, you're going to kill her." He and Morris then left for the hospital. Later that morning, Stack said to Morris, "I guess [Bataineh's] head hurts now."¹

Around one p.m. Bataineh called a neighbor and the police to report the assault. Officer Lantz testified that Bataineh said she thought some of her ribs were broken. Lantz observed that it was difficult to get information from Bataineh because she lost track of her thoughts easily, although she did not appear to be intoxicated.

An ambulance took Bataineh to Capitol Hill Hospital where she told the emergency room nurse that she had been kicked in the neck and ribs, but did not mention being hit in the face. The examining doctor found no localized tenderness in the neck or bruises or welts in the head or neck, and noted in the medical record "no head trauma." Chest x-rays revealed five of the eight ribs on Bataineh's left side were broken. No x-rays or other tests were ordered for her head.

James Vaughan brought Bataineh home from the hospital on June 6 about 7 p.m. That evening he noticed a bruise on the lei side of Bataineh's face.² He and Bataineh remained in the house until the next morning, when Bataineh told Vaughan she felt terrible, but was going to work.

Blair Middleton, for whom Bataineh worked as a live-in nurse's aid, recounted Bataineh's activities and deteriorating physical condition during the next two days.³ Joan Park, a cousin of Middleton's who was staying with him at the time, also described Bataineh's behavior during this period. Park testified that on June 7 Bataineh was moving slowly at 8 a.m. and claimed she had been beaten up over the weekend and felt lousy. The next morning, she was still moving slowly, and saying that she did not feel well. She did not do any of the things she normally did in the morning. In addition, her manner of speaking was slow and "sort of drowsy." Park did not see Bataineh again until after 7:00 when she went upstairs to Bataineh's bedroom. Bataineh was lying on her stomach, breathing heavily, and Park thought she was sleeping. About an hour later, Park thought Bataineh felt slightly feverish. Less than half an hour later, Park could not hear any breathing and found Bataineh's body was cold. Middleton told Park to call the police. Bataineh was pronounced dead at 10:57 p.m. that evening.

The government called two expert witnesses, Dr. Michael Bray, who performed the autopsy, and Dr. Vernon Armbrustmacher, who reviewed the medical records, autopsy report, and a tape recording of Bataineh's voice. The doctors testified that Bataineh's death was caused by a subdural hematoma⁴ on the right side of her brain: the hematoma had swollen and compressed the brain, eventually causing a hemorrhage within the brain stem which resulted in death. In their opinion, the trauma which had caused the hematoma could have occurred between one and four days before Bataineh's death. Dr. Bray testified, to a reasonable medical certainty, that the hematoma was consistent with a punch or a kick to the neck on the afternoon of June 6. He estimated that the trauma which caused the hematoma could have occurred as late as 10 p.m. on June 7. Dr. Armbrustmacher testified, in response to hypothetical questions which recounted Bataineh's activities from June 6 until her death, that, to a reasonable medical certainty, the slap to Bataineh's face on June 6 was "very consistent" with the type of event required to cause the fatal hematoma. Dr. Armbrustmacher thought that the evidence Bataineh was drowsy on June 8 was an ominous sign of increasing intracranial pressure. Both doctors opined that the bruise on the lower left side of Bataineh's jaw, close to her chin, occurred at approximately the same time as the trauma which caused the hematoma. They agreed, however, that a fall or any event causing a sudden, sharp rotation of the head could result in a fatal hematoma. Because of Bataineh's history of heavy drinking, they expressed caution about ascribing any particular injury as the cause of the hematoma, although neither doctor found any evidence of the type of bruises or scrapes which are usually seen when an intoxicated person falls down the stairs.

The defense expert, Dr. Richard Lindenberg, testified that the fatal hematoma was less than two and a half days old and could have begun to form as little as four to six hours before Bataineh's death. In his opinion, the autopsy report was more consistent with evidence that Bataineh had fallen on June 8, and the fall had caused the hematoma, than with evidence that Stack's slap on June 6 had caused the hematoma. He based his opinion on the absence of edema⁵ (an indication of age of the injury) in the brain, the absence of a notation in the hospital records of head or facial bruises on June 6, and the fact that Bataineh was able to go to work on June 7 and perform the tasks associated with grocery shopping and meal preparation. On cross-examination, Dr. Lindenberg admitted that the bruise on Bataineh's chin might have been covered by make-up, and that Stack had not told him Vaughan had claimed to have seen the bruise on the night of June 6 or his (Stack's) slap of Bataineh's face had knocked her off her feet.⁶

The defense also called James Calloway, a tenant in Vaughan's house. He testified that when he came home around ten o'clock at night, Vaughan had told him that Bataineh had been beaten by Rita Morris' boyfriend, Frank. Calloway did not notice any injuries on Bataineh's body.⁷ He saw Bataineh sitting on the floor, and testified that she may have been drinking, and had complained her back hurt. Stack did not testify.

II

Stack contends first that he was denied his Sixth Amendment right to confront witnesses when defense counsel was not allowed to cross-examine Vaughan about his assaults of Bataineh prior to June 5, 1983. He argues the trial judge thereby impermissibly limited cross-examination which would have shown Vaughan's bias and motive to fabricate.⁸

A criminal defendant has a Sixth Amendment right to confront and cross-examine government witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109, 39 L.Ed.2d 347 (1974); Lawrence v. United States, 482 A.2d 374, 376 (D.C. 1984). If the trial court limits that right, and if an error of constitutional magnitude is found, the appellate court must determine whether reversal is required, see, e.g., Davis v. Alaska, supra, 415 U.S. at 318, 94 S.Ct. at 1111; Springer v. United States, 388 A.2d 846, 857 (D.C. 1978), or whether the error was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). See Delaware v. Van Arsdall, ___ U.S. ___, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); see also Lawrence, supra, 482 A.2d at 378. Once a trial judge has allowed enough cross-examination on an...