U.S. v. Bailey

• Decision Date: 02 May 1997
• Docket Number: No. 95-5727,95-5727
• Citation: 112 F.3d 758
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher J. BAILEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 758

112 F.3d 758

UNITED STATES of America, Plaintiff-Appellee, v. Christopher J. BAILEY, Defendant-Appellant.

No. 95-5727.

United States Court of Appeals Fourth Circuit.

Argued Sept. 24, 1996.

Decided May 2, 1997.

ARGUED: Hilary Gerard Kelley, Sr., Roberta Frances Green, Shuman, Annand & Poe, Charleston, WV, for Appellant. Rebecca A. Betts, United States Attorney, Charleston, WV, for Appellee. ON BRIEF: Mychal S. Schulz, Jackson & Kelly, Charleston, WV, for Appellant. Charles T. Miller, Assistant United States Attorney, Stephanie D. Thacker, Assistant United States Attorney, Philip J. Combs, Assistant United States Attorney, Charleston, WV, for Appellee.

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

Judge WIDENER wrote the opinion, in which Judge RUSSELL and Judge HALL joined.

OPINION

WIDENER, Circuit Judge:

Christopher J. Bailey appeals his convictions and subsequent sentencing in the district court for the Southern District of West Virginia under Title 18 U.S.C. § 1201(a)(1), kidnapping, and Title 18 U.S.C. § 2261(a)(2), interstate domestic violence. The jury found Bailey guilty of both counts after the government presented evidence at trial that Bailey had assaulted his wife in their home and subsequently driven her in and out of the State for a period of five days before taking her to a hospital in Kentucky. The court sentenced Bailey to life imprisonment for the kidnapping conviction and imposed a concurrent 20 year sentence, a five year term of supervised release, and ordered him to pay $40,000 in restitution for the interstate domestic violence conviction. Bailey claims numerous errors by the trial court, and we affirm.

I. FACTS

Defendant Christopher Bailey married Sonya Bailey on December 19, 1991. Mrs. Bailey's 14 year-old daughter from a previous marriage, Jessica, lived with the couple and was adopted by Bailey. Christopher Bailey is an alcoholic.

On November 25, 1994, a Friday evening, the defendant and his wife went out to a local bar. At some point thereafter they began to argue, and at about 10:30 p.m. Mrs. Bailey went to another bar, the Circle C. About a half hour later the defendant joined her there.

Bailey was drunk and disruptive at the Circle C. The bouncer asked Bailey not to disturb his wife and other patrons. Eventually, sometime between 2:00 a.m. and 2:30 a.m. the bouncer required Bailey to leave the Circle C. Mrs. Bailey stayed until after 2:45 a.m.

Christopher Bailey testified that he remembered going to the Circle C, that he argued with Sonya Bailey, and that he was asked to leave by the bouncer. He testified that the last thing he remembered about that night was going to Big Bertha's across the street, and that he did not remember leaving that establishment. He attributes this memory loss to an alcoholic blackout which he claims lasted until late the next afternoon.

On Saturday November 26, 1994 Bailey was due at work by 7:00 a.m. At 8:10 a.m., as a result of his failure to report, Lucy Curry, a co-worker of the defendant, called the Bailey home to inquire why he was late for work. A woman whom Miss Curry believed to be Mrs. Bailey answered the phone and spoke briefly with Miss Curry before she summoned Bailey. Bailey said that he would not be coming into work that day.

When Jessica Bailey and her house guest came downstairs at about 10:00 a.m., Jessica looked into her parents' bedroom. She saw Bailey on the bed, but could not see over him to see whether her mother was on the bed.

At some point during that morning Mrs. Bailey suffered a head injury which included a laceration on her forehead. Investigating officer Jeff Gundy testified that Mrs. Bailey lay on the bed for an extended period. The blood had saturated one pillow, soaked through the sheet and mattress cover, and pooled on the mattress of the waterbed.

The government presented evidence that the defendant had pulled the covers up over the blood-stained areas, which obscured the blood. Bailey told his cellmate at the county jail that he placed his wife in the trunk, in case he was stopped by police. The government pointed to blood in the spare-wheel well of the trunk, the strong odor of urine, and the scratch and dent marks on the inside of the trunk door, as evidence indicating that Mrs. Bailey was locked in the trunk of the car for some period of time over the next six days. Jessica Bailey's house guest stated that by noon the Camry and Bailey were no longer at the residence. At 12:26 p.m. Bailey cashed a $75 check at a bank in South Charleston.

Bailey testified that he came out of his blackout some time that afternoon while driving on Route 119, whereupon, he claims, he discovered his wife on the back seat of the car under a blanket. She was unconscious with blood on her head and clothes. Bailey's brief states that he was "shocked by the appearance of his wife" and was "scared that he may have inflicted her injuries." He claims that at that time he decided not to take her to a hospital, but rather to "avoid publicity and to treat her himself."

Bailey testified that they spent the night on the side of the road and that he tried to clean Mrs. Bailey with a washcloth. Based on receipts and documents collected upon Bailey's arrest it is undisputed that on Sunday, November 27, 1994, he stopped at a K-Mart in Pikeville, Kentucky. There he purchased shampoo, soap, a razor, hydrogen peroxide, one pair of sweat pants, and a package of T-shirts. That night he used his Visa card to register under his own name for two people in a Knight's Inn in Ashland, Kentucky. The next day, November 28, Bailey drove to Hurricane, West Virginia, 20 miles from their home, and withdrew all of the couple's joint savings account. Bailey then drove to Georgetown, Kentucky where he registered for two people at the Flag Inn. On Tuesday, November 29, he drove to Walton, Kentucky and registered for two people for the next two nights at a Red Carpet Fountain Inn. During this time Bailey purchased various items to treat Mrs. Bailey. Finally, on December 1, Bailey drove to Corbin, Kentucky where at 1 p.m. he registered at a Days Inn. Bailey testified that at this time he realized Sonya was beyond his efforts to help her and that he had to get her medical assistance. At 6:15 p.m., five days after Bailey claims he came out of the blackout, Bailey brought his wife to the emergency room at Baptist Regional Medical Center in Corbin.

Upon arrival at the hospital Mrs. Bailey's condition was desperate, as she was suffering from both external and internal injuries. She had a three-inch laceration on her forehead and two black eyes. She also had three wounds on her forehead that were still bleeding when the police photographer arrived at the hospital. She exhibited a subconjunctive hemorrhage in her right eye, and corneal abrasions had resulted from having her contact lenses in place for almost a week. There were bruises around her throat, abrasions on her knees, and pressure sores on her feet. She also had ligature bruises on her wrists, and her ankles had similarly been bound and resulted in what would be permanent scars.

Internally the damage was more extensive. The doctors diagnosed Mrs. Bailey as suffering from very severe anoxic brain injury, a condition which results when nerve cells are destroyed due to a lack of oxygen. This condition often results from a loss of the flow of blood to the brain. Finally, as a result of not receiving adequate food or water for at least three or four days, Mrs. Bailey suffered from profound dehydration, which in turn caused her to experience renal failure.

Many of Mrs. Bailey's injuries are permanent. At trial the government presented the testimony of Dr. Biundo, Mrs. Bailey's treating physician, as to her condition at the time of trial and her prognosis. He testified that she was unable to follow commands and had minimal comprehension of what was said to her. She lacked the ability to talk, and was capable only of making vowel sounds. Mrs. Bailey was incapable of feeding herself and relied on a gastrointestinal tube to receive most of her nutrition. She was incontinent, suffered severe contractions in her upper and lower extremities, and the only voluntary movement she could perform was the slight extension of her left knee. Additionally, her sense of hearing, smell, and sight were impaired. The doctor testified that most likely she will never walk again, but that with years of rehabilitation she may learn to feed herself and to talk.

Corbin police officers arrested Christopher Bailey at Baptist Regional Medical Center on December 1, 1994. A criminal complaint was filed in the Southern District of West Virginia on December 6, 1994 charging Bailey with kidnapping, in violation of 18 U.S.C. § 1201(a)(1). The federal grand jury on January 4, 1995 returned a two-count indictment charging Bailey with the kidnapping count, and one count of interstate domestic violence, 18 U.S.C. § 2261(a)(2). After the defendant's arraignment on January 19 the court entered a standard discovery order on January 24, 1995.

Three days later, Bailey filed an ex parte motion requesting a conference regarding his need for private investigative services and experts. In his motion Bailey requested approval and funds for the services of a forensic expert or criminalist to determine the age of the blood and human waste in the Camry, and to inspect the back seat of the Camry for anything that could have been left by Mrs. Bailey. Under the heading of medical experts the defense requested a psychiatrist and psychologist to examine Bailey and a medical practitioner specializing in trauma patients who could review and explain Mrs. Bailey's injuries. The conference was held and the court advised defense counsel on the procedural steps available to obtain the necessary resources, noting in particular the requirement of filing separate ex parte motions for each service requested. ¹ As a result of that first ex parte motion...