December 29, 1979: Brief for Appellee to the
U.S. Court of Appeals for the Fourth Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA
JEFFREY R. MACDONALD
ON APPEAL FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE EASTERN DISTRICT OF NORTH CAROLINA
STATES FAYETTEVILLE DIVISION - CRIMINAL
BRIEF FOR APPELLEE
Table of Contents
I. WHETHER THE TRIAL JUDGE ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL?
II. WHETHER THE INTERVAL BETWEEN THE DISMISSAL OF MURDER CHARGES UNDER THE UNIFORM CODE OF MILITARY JUSTICE AND THE RETURN OF THE FEDERAL INDICTMENT WITHIN THE STATUTE OF LIMITATIONS VIOLATED EITHER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT OR THE SPEEDY TRIAL CLAUSE OF THE SIXTH AMENDMENT?
III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING EXPERT TESTIMONY CONCERNING WHAT WAS ACTUALLY DONE WITH APPELLANT'S PAJAMA TOP?
IV. WHETHER THE TRIAL COURT'S RULINGS WITH RESPECT TO EVIDENTIARY MATTERS CONCERNING HELENA STOECKLEY AND RELATED WITNESSES WERE CORRECT?
V. WHETHER THE PROCEEDINGS OF THE ENTIRE TRIAL AND PRE-TRIAL STAGE WERE HANDLED PROPERLY?
VI. WHETHER THE TRIAL COURTS REFUSAL TO ADMIT FULL CONTENTS OF THE ARTICLE 32 REPORT OF COLONEL ROCK INTO EVIDENCE WAS CORRECT?
VII. WHETHER THE TRIAL COURT'S RULING WITH RESPECT TO THE PRESENTATION OF EXTENSIVE PSYCHIATRIC EVIDENCE WAS CORRECT?
STATEMENT OF THE CASE
COURSE OF THE PROCEEDINGS
Appellant was convicted on August 29, 1979 of the second degree murders of his wife and older daughter and of the first degree murder of his youngest daughter, after a seven-week jury trial in the United States District Court for the Eastern District of North Carolina.
Appellant was charged with the first-degree murder of his wife and two daughters, in violation of Title 18, U.S. Code Section 1111, in an Indictment returned on January 24, 1975, by a grand jury of the United States District Court for the Eastern District of North Carolina.
"On May 30, 1975, the district court denied appellant's motion for a change of venue to the Central District of California. The court of appeals dismissed appellant's appeal from this order (C.A. 4, No. 75-1621, decided July 1, 1975, certiorari denied, 423 U.S. 926) and denied his petition for a writ of mandamus to compel the district court to grant the change of venue (C.A. 4, No. 75-1681, decided July 15, 1975, certiorari denied, 423 U.S. 927)."
On July 28, 1975, the district court denied appellant's motions to dismiss because of alleged speedy trial deprivation and because of double jeopardy and collateral estoppel. Appellant filed a notice of appeal, and the Government moved to dismiss the appeal for lack of jurisdiction. On August 15, 1975, (three days before the trial was scheduled to begin), this court entered an order permitting the appeal and staying appellant's trial.
On January 23, 1976, this court, Judge Craven dissenting, reversed and remanded with directions to dismiss the Indictment on the ground that appellant had been denied his Sixth Amendment right to a speedy trial. United States v. MacDonald (MacDonald 1)- 531 F.2d 196 (1976).
On April 30, 1976, this court, which then was made up of six judges denied the Government's petition for rehearing en banc by a 3-3 vote. Chief Judge Haynsworth, Judge Craven and Judge Widener would have granted rehearing "for the reasons stated in Judge Craven's dissenting opinion."
The United States petitioned the Supreme Court for a writ of certiorari, which was granted on June 20, 1977. The case was argued on January 9, 1978, and the decision of the Supreme Court was handed down on May 1, 1978.
In rejecting appellant's contention that speedy trial claim are also within the collateral order exception, Mr. Justice Blackmun stated:
"...We believe it clear that an order denying a motion to dismiss an indictment on speedy trial grounds does not satisfy those criteria. The considerations that militated in favor of appealability in Stark v. Boyle supra, and in Abney v. United States are absent or markedly attenuated in the present case. . . we hold that the court of appeals lacked jurisdiction to entertain respondent's speedy trial appeal. (Citations omitted) United States v. MacDonald, 435 U.S. 850 (1978)."
Mr. Justice Blackmun further distinguished appellant's position from that of the petitioner in Abney
"Unlike a double jeopardy claim, which requires at least a colorable showing that the defendant once before has been in jeopardy of federal conviction on the same or a related offense, in every case there will be some period between arrest or indictment and trial during which time 'every defendant will either be incarcerated. . . or on bail subject to substantial restrictions on his liberty.'" (Emphasis supplied, citations omitted). Id. at___
The Supreme Court did not reach the merits of appellant's speedy trial claim in view of its disposition on the jurisdictional issue.
Accordingly, the Supreme Court reversed the judgment of this court and remanded the case for proceedings consistent with this opinion. Id. at 863.
On June 7, 1978, the appellee filed a motion to affirm the order of the district court denying appellant's motion to dismiss on grounds of double jeopardy and collateral estoppel, to vacate the stay entered August 15, 1975, and to remand the case for immediate trial. Appellant was given until June 13, to file a reply. No reply was ever filed.
On June 8, 1978, this court granted appellant's motion for reargument and to file additional briefs, based inter alia on the intervening decision in Abney v. United States, 431 U.S. 651 (1977), and stayed its order of June 8, 1978, remanding the case to the district court, and allowed the filing of supplemental briefs on the issue of double jeopardy.
After the filing of briefs by both sides by October 12, 1978, a panel consisting of Chief Judge Haynsworth and Judges Butzner and Russell, without hearing oral argument, unanimously rejected appellant's double jeopardy plea.l/
Judge Butzner writing for the panel stated:
"we conclude that the proceeding against MacDonald under Article 32, UCMJ, 10 U.S.C. Sec. 832, and the commanding officer's review were investigative."
(Id. at 1211).
On November 24, 1978, appellant's petition for rehearing with suggestion for rehearing en banc was denied.
On December 15, 1978, Chief Justice Warren Burger granted appellant's application for an extension of time in which to file a petition for writ of certiorari, extending the filing date to January 23, 1979.
On March 19, 1979, the United States Supreme Court denied appellant's petition for writ of certiorari.2/
On March 20, 1979, the district court set the case on the trial calendar for April 23, 1979.
On April 18, 1979, appellant moved for a continuance from the April 23, 1979 trial date and the case was rescheduled for July 16, 1979.
On July 16, 1979, the case was called for trial.
On July 10, 1978, appellant had filed a petition with this court for a writ of mandamus and for a motion for an order staying proceedings in the district court; both were denied on July 19, 1978.3/
1/ United States v. MacDonald (MacDonald 11) 585 F.2d 1211 (4th Cir. 1978).
2/ Jeffrey R. MacDonald v. United States of America, No. 78-1156, cert. denied 99 SC 1504.
3/ In re: Jeffrey R. MacDonald, No. 79-1420, Order, July 19, 1978
STATEMENT OF FACTS
THE CRIME SCENE
The evidence adduced at trial proved that in the early morning of February 17, 1970, appellant's pregnant wife, Colette, and his two daughters Kimberly and Kristen, aged five and two, were bludgeoned and stabbed to death at appellant's quarters on the Fort Bragg Military Reservation in North Carolina. Appellant, a Captain in the Amy Medical Corps assigned to the "Green Berets," telephoned the military police at approximately 3:40 A.M., for assistance. (Tr. 1254)4/
Gaining entry to the ground floor apartment via the utility room door at the rear of the quarters (the front door was locked) the military police saw the appellant clad only in his pajama bottoms lying adjacent to, and partially covering, his wife's body on the master bedroom rug. (Tr. 1260, 1274, 1281). At that time appellant described an attack by four intruders consisting of two Caucasian males, one Negro male, and one blond female wearing a floppy hat, who was carrying a candle and saying "acid is groovy; kill the pigs." (Tr. 1270). Shortly thereafter, at approximately 4:00 A.M., Army Criminal Investigation Detachment (CID) Duty Agent William F. Ivory arrived at the scene as appellant was being removed to the hospital. (Tr. 1607-11). Agent Ivory walked through the apartment and observed the body of Colette MacDonald in the master bedroom upon which a blue pajama top (later identified as the defendant's) and a Hilton bath mat had been placed. (Tr. 1612-13). See photos GX 40-45.
Ivory also observed the body of Kimberly MacDonald in the front or south bedroom and the body of Kristen MacDonald in the back or north bed room. (Tr. 1614-16). See Photos GX 54-58, 59 and 62. In addition to the body of Kristen, Ivory observed flecks of blood on the wall above Kristen's bed (later proven to be Colette's type) and two bloody footprints exiting from Kristen's room. (See Photo GX 64-65). (Tr. 1616). One of these footprints was later identified as having been made by appellant's bare left foot in his wife's type blood. (See Photo of GX-1) (Tr. 3106, 3675-76).
Returning to the master bedroom Ivory observed the blood spattered walls, the master bed from which the top bedding had been stripped, and a pile of bedding on the floor by the hall entrance, which consisted of the bedspread and top sheet, that apparently come from the master bed.5/ (Tr. 1626-1628). (See Photos GX 210-212). These scenes were photographed to record the position of the pajama top6/ and the location of the bodies. (Tr. 1638-1663)
Prior to the removal of the body of Colette MacDonald CID Agents Ivory and Shaw collected the appellant's blue pajama top (GX 101) and the Hilton bath mat (GX 514) from the chest and abdomen, respectively, of the body. (Tr. 1682) The agents also found the pocket (which had been torn from the appellant's pajama top) on a throw rag adjacent to her feet. (Tr. 1683).7/ (See Photo G40)
As the corpse of Colette MacDonald was being lifted onto a stretcher Agent Ivory noticed a dark thread sticking out of a blood clot directly under the head region of her body. (Tr. 1687). (See Photos GX 71, 77). Further observation by Ivory revealed numerous other small dark threads both within and outside the body outline of Colette MacDonald. (See GX 78). (Tr. 1689-1690). Later that morning when the laboratory team arrived from Fort Gordon, Georgia and during the days that followed, a detailed search of the crime scene would be conducted for additional threads and yarns.
There was uncontradicted testimony at trial that the appellant's blue pajama top was made of a fabric consisting of a blend of polyester-cotton sewn at the seam with purple cotton thread and at the cuffs with blue-black cotton thread (Tr. 4089-91); and that the pajama top was torn from the mid-line of the "V-neck" through the left side seam and to the left cuff. There was also uncontradicted testimony that threads and yarns identical in all characteristics to the constituent parts of the appellant's pajama top, which in the experts opinion could have originated from it, were distributed inside and outside the house as follows: in the master bedroom 60 purple threads; 18 blue polyester yarns and one blue-black cotton thread were found; in the south bedroom 14 purple threads and 5 blue yarns were removed from the bedding in which Kimberly had been wrapped; in the north bedroom one purple thread and one blue yarn were removed from Kristen's bedding; two purple threads were removed from a bloodstained and splintered club found just outside the utility room door. (See Photo G 1) (Tr. 3790-3811) (Exhibit No. 654). An extensive search of the area immediately in front of the living room couch, where appellant had claimed he was attacked, revealed no threads, yarns, splinters or blood stains (Tr. 1727). However, on appellant's eyeglasses, which he later claimed that he was not wearing at the time of the assault, blood which was only consistent with having come from Kristen MacDonald in the family, was found on the outer surface of one lens. This bloodstained portion of the lens was lying bloody side down on the floor. (Tr. 3505-07) (See Photo G 27).
While no splinters were found in the living room, a large splinter bearing Colette's type blood was found together with purple cotton seam threads on the rug in the area immediately adjacent to where her head had rested. (Tr. 1700-01, 3404-05, 3425-27). (See Photo GX 77). This same splinter was found to fit into the club found outside the house, and bearing Colette's and Kimberly's blood as well as two purple threads, from appellant's pajama top. (Tr. 2340, 3802-04). The investigators observed that the pattern of splinters from the club and threads from the pajama top found in proximity to blood spattered walls was repeated in both the children's room. (Tr. 3804-12, GX 653) (See also Photo of GX 1).
In the master bedroom, on the rug, between the body of Colette MacDonald and the headboard upon which the letters "PIG" had been printed in blood of Colette's type; a piece of bloodstained latex was found (Tr. 1729-30). (See Photo (GX 43). On the floor beneath the headboard bearing the letters "PIG", a purple cotton thread, identical to those of the pajama top was recovered (GX 324); 15 purple threads and 7 blue yarns were removed from the bottom sheet of the master bed. (Tr. 1769, 4101, Tr. 3402, 4104-4. A finger section of what appeared to be a latex glove,8/ also bloodstained with Colette's type blood, was found inside the sheet in the pile of bedding at the foot of the master bed. (Tr. 1730-1731).
In addition to the bloodstained club found outside the utility room door, CID Agent Shaw found a steel paring knife (the Old Hickory brand knife) and an ice pick. (Tr. 2342-44). See Photo GX 80-81. Inside the master bedroom near the dresser by the north wall, Shaw collected a paring knife with a bent blade. A chemist scrapped a speck of blood (consistent with Colette's type from this knife, which was manufactured by the Geneva Forge Company.) (Tr. 2364, 3428). See Photo GX 49. Contrary to appellant's representation (Br. at 22) Military Policeman Richard Tevere did not testify that this knife was "bloody"; what he testified was: "I had noticed a knife with blood on it next to the dresser which I pointed out to Specialist Mica (Tr. 1268).
4/ "Tr." refers to the 28 Volume Record of Trial, unless otherwise indicated; GX refers to Government Exhibits.
5/ It was later determined that each of the four members of the MacDonald family had one of the four ABO blood groups: Colette had type A, Jeffrey has type B, Kimberly had type AB, and Kristen had type O. (Tr. 3382-3383).
6/ From the photographs of Colette MacDonald it was later possible for the FBI to determine that the appellant's pajama top was folded right sleeve inside out and that the torn left panel was trailing off her body. (Tr. 4185-87). See Stombaugh Photos (GX 1137-39).
7/ There was uncontested expert testimony that the pocket was stained with Colette's type blood, that the staining was the result of smearing and soaking caused by direct contact, and that the staining occurred prior to the pocket being torn from the pajama top. (Tr. 3605-12).
8/ Both sides offered expert testimony in the field of Neutron Activation Analysis (NAA), the Government's expert testified that both the questioned pieces of latex and samples taken from packages of latex surgeon's gloves found under the kitchen sink in proximity to the appellant's blood type on the kitchen floor (Tr. 1743, 1760-61) were consistent in trace elements, although in somewhat different concentrations, and in his opinion could have originated from the same manufacturer. (Tr. 3914-15). The defense expert, using more advanced techniques, found more trace elements common to both samples and exemplars than did the Government expert. Based on the different concentrations in the samples and exemplars the defense expert concluded that it was highly unlikely that they originated from the same manufacturing batch. However, on cross examination he conceded that variations in concentration of trace elements existed between all eight exemplar samples. (Tr. 4900, 4911, 4921-4927).
The autopsy of Colette MacDonald revealed that while the cause of death had been due to stab wounds, she had also sustained massive blunt trauma injuries,9/ which she could have survived. (Tr. 2507-08). The pathologist testified defensive type wounds, were consistent with a frontal assault and could have been caused by a blunt instrument such as Exhibit 306 (the club found outside the house), (Tr. 2494-98). Colette had also sustained a "pattern bruise with sharp margins" on her chest;10/ there was testimony that this injury could have been definitely caused by the end of the club, as it had been thrust in a straight-on motion. (Tr. 2498-25001).
There was also testimony that Colette had sustained 16 stab wounds to her neck and chest inflicted in a perpendicular manner when her body was in a flat position. (Tr. 2500-02). These gaping stab wounds were caused by a single edged sharp knife, and in the pathologist's opinion were, "very consistent" with the Old Hickory paring knife11/ found just outside the rear of the house. (Tr. 2502-03).
In addition to the knife wounds Colette MacDonald sustained 21 puncture wounds in her chest, such as would be caused by an ice pick12/ like the one found outside the house. (Tr. 2503-04). These ice pick wounds were grouped in two clusters: 16 on the left side and five on the right side of Colette's chest. (Tr. 2520) (See Photo GX 763-764). On cross examination the pathologist testified that the absence of tearing of the skin in the areas where the punctures were found indicated that Colette MacDonald's body was not moving at the time that these injuries were inflicted. (Tr. 2545).
Like her mother, Kimberly MacDonald (age 5) had sustained both blunt trauma injuries as well as stab wounds. Kimberly had sustained at least two blows to the head, one on each side of her face. (Tr.2565-67) One blow to the right side of her face had fractured her skull.13/ Tr.2567). See Photo GX 808-812. Kimberly's neck had also sustained 8 to 10 incisional wounds which could have been inflicted by the Old Hickory knife.14/
Kristen MacDonald had not sustained any blunt trauma injuries, but had sustained multiple gaping incisional wounds to the chest and back, some of which penetrated her heart. (Tr. 2577-78). (See Photos GX 776-777).
These wounds also could have been inflicted with the Old Hickory knife. (Tr. 2589). Kristen MacDonald had also received superficial puncture wounds to her chest, consistent with being inflicted by the ice pick.15/
Unlike the victims whose bodies would be delivered to the Womack Army Hospital morgue, appellant was first treated in the emergency room. A Senior Clinical Technician, whose prior experience included service with a casualty clearing company of the First [Air] Cavalry Division in Vietnam, testified that appellant's vital signs were stable, and that while appellant had three wounds on his chest and left arm, [he] "did not see any ice pick wounds." (Tr. 2644-50.)
Additionally, appellant had no wounds on his back. (Tr. 2651).
Further examination by the surgical resident, Dr. Jacobson, revealed that appellant had: "a contused area of his left forehead slightly raised, the skin abraised, four puncture wounds in the left pectoral area, a 3/4 inch wound on his right chest at the seventh intercostal space. (i.e. between the 7th and 8th ribs) a superficial laceration of the lower left quadrant of his abdomen and a cut on his left arm."16/ (Tr.2858-2861).
Dr. Jacobson testified that his vital signs were "very acceptable" and that "his general condition was good." (Tr. 2855, 2862) An x-ray of appellant's chest revealed a small pneumothorax17/ on the right side which Dr. Jacobson testified is "well-tolerated" by someone of appellant's "relative good health, size, and robustness." (Tr. 2865-66).
After escorting the bodies to the mortuary, CID Agent Connolly interviewed appellant in the hospital to try and get a better description of the intruders. (Tr. 2681). Appellant described his attack by four individuals in the living room, one of whom struck him with a club. (Tr. 2684). When asked by Connolly to describe the club he said: "Well, I think it was a baseball bat.18/ When I reached up to grab it was slippery like, you know, it had blood19/ on it." (Tr. 2684). Although Connolly had made no mention of the discovery of an ice pick outside the house, appellant stated". I felt a real sharp pain in my side, and I thought this was when I got hit; but that is when I must have gotten stabbed with the ice pick." (Tr. 2685).
In response to a question by Connolly concerning the type of shoes, if any, the intruders were wearing, appellant stated: "They were all wearing some type of footgear." (Tr. 2688). When Connolly asked about the bloody footprint leading out of one of the bedroom, [Kristen's], appellant stated that it was probably his and that when he went in there to give mouth to mouth [resuscitation to Kristen] he may have stepped in the blood.20/ (Tr. 2688-89).
FBI Special Agent (retired) Robert Caverly testified to his interview of appellant on the afternoon of February 17, 1970. Mr. Caverly stated that the purpose of the interview was to determine the chronological sequence of events and that appellant was interviewed as a witness/victim to an assault. (Tr. 2885). Mr. Caverly testified that he took "detailed notes." (Tr. 2885). Appellant told Caverly: that upon retiring at approximately 2:00 A.M. to 2:30 A.M. he found that his daughter had wet his side of the bed; that he picked up the child and returned her to her own room; and that he returned to the living room and lay down on the sofa. (Tr. 2888). The next thing appellant could recall was being awakened by his wife screaming:
"Jeff, Jeff, help me. Why are they doing this to me?" At the same, time he heard his oldest daughter, Kimberly, screaming:
"Daddy, Daddy, Daddy" (Tr. 2899). As he looked up, appellant told Caverly, he saw the four intruders whom he described and of whose assault on him he gave a detailed description. (Tr. 2889-91). In describing the struggle with the intruders appellant stated that the black and white male continued fighting with him and he [MacDonald] pushed him away from the couch toward the hallway with both the black and the white male tearing at his pajama top. (Tr. 2891). Appellant also told Caverly that he passed out, and when he awoke, he was on the floor in the hallway with the pajama top torn, bloody, and twisted around his wrists. (Tr. 2892). Appellant then described his movements from room to room in which he touched all the bodies, removed a knife [the bent Geneva Forge knife] from his wife's chest, covered his wife with his pajama top and a "towel". (Tr. 2893-2894) On February 18, 1970 Agent Caverly again interviewed appellant who basically furnished him with the same information as on the previous day. However, appellant volunteered additional information that he did not check either the front or back door, and that he may have gone into the hall bath to stop his bleeding,21/ and that one of the assailant's (the shorter white male with the ice pick) had been wearing what he thought were light weight gloves, stating that they might have been surgical gloves. (Tr. 2899-2900)
9/ Both arms were broken and the head had sustained at least five separate lacerations which exposed the skull and in one place fractured it. (Tr. 2491-97).
10/ See autopsy photo GX 771, 772, and Photo of Club GX 422.
11/ The serologists who examined the Old Hickory knife testified that while no blood was found on the blade, when the handle was disassembled, type A (Colette's) blood was found inside the handle. (Tr. 3418-19, 36417-42). There was also testimony that one of the bloodstains on the Hilton bath mat found on Colette's abdomen (referred to by the appellant as a "towel" in his interview by Special Agent Caverly), matched in general shape and configuration the blade and handle of the Old Hickory knife and could have been caused by that knife, being wiped on the "towel". (Tr. 4122-4123).
12/ As with the Old Hickory knife human blood was found inside the metal fitting of the handle but not on the blade of the ice pick. (Tr. 3419); there was also testimony that other stains on the Hilton bath mat had the general impression of an ice pick of the same configuration being wiped on the towel (Tr. 4124).
13/ Blood of Kimberly's type was soaked into the rug at the entrance to the master bedroom, spattered on the wall in her own room, and found on the club. (Tr. 3661-77; 3639-41).
14/ Streaks of Kimberly's blood were also found on the Hilton bath mat. (Tr. 3645-46).
15/ Curiously, the ice pick wounds to Kristen must have been inflicted when her pajama top was lifted up as no puncture holes were found in it, but were found in her undershirt. (Tr. 4048-50, see GX 597).
16/ Appellant states (Br. at 20) without supporting citation that he had sustained "numerous puncture type wounds on the arms." This statement is contrary to the evidence that it was only on his left arm that he had a cut, not a puncture wound; he had no cuts or punctures on his right arm, which is significant because it was the right sleeve of the pajama top that had the puncture holes in it. (See Photo GX 610).
17/ Air between the lung itself and the inner wall of the chest. (Tr. 2861).
18/ No baseball bat was ever linked to the crime and no one grabbing the rectangular club could reasonably mistake it for a bat.
19/ No blood spatters were found on the wall adjacent to the couch. (Tr. 3942-43).
20/ Appellant was identified by a CID fingerprint examiner as the maker of the footprint; a fact which was uncontested and even admitted to by the appellant on cross examination. However, there was also testimony that while the footprint was in Colette's type blood (Tr. 3675) all of the blood on the floor was the same type as the room's occupant, Kristen. (Tr. 3103-3106, 3673-74)
21/ Appellant's blood type was found on the sink beneath the mirror. (Tr. 3669-71).
THE APRIL 6, 1970 STATEMENT
The jury heard a tape of an interview recorded by the CID on April 6, 1970.22/ On the tape the jury heard the appellant describe the sequence of events on the night of February 16-17, 1970. Appellant told the investigators that after his wife returned from a class [she had attended in a course in child psychology], they watched television and she retired first. (Tr. April 6, Vol. I. p. 93) When appellant decided to retire at approximately 2:00 A.M., he said that he found that his youngest daughter (Kristen) had gotten into bed with his wife and had wet his side of the bed.23/ (Tr. April 6, Vol. I. at 3). After returning Kristen to her own room (the north bedroom) appellant said he went to sleep on the living room couch. (Tr. April 6, Vol. I. at 3) The next thing appellant knew was that he heard his wife24/ and daughter Kimberly25/ screaming, and that he could see four individuals, one of whom was a girl, with a wavering light who was chanting.26/
Appellant gave the CID agents a blow by blow account of the "struggle" with the intruders, in which he said that his pajama top was either "ripped forward or pulled over [his] head".27/ Appellant's hands became "wrapped up" in the pajama top and he used the pajama top to blunt the thrusts by the knife and ice pick wielding intruders. (Id.) When appellant woke up lying on the hall steps to the living room, the pajama top was "still around" his hands. (Id.)
He stated further, that after regaining consciousness in the living room, he walked directly down the hall to the master bedroom, that he pulled the [Geneva Forge] knife from his wife's chest, and that he covered his wife's chest with his pajama top28/ to keep her "warm." (Id. at 13)
Having provided the investigators with what he thought was an explanation consistent with his innocence for the presence of his wife's blood on his pajama top, appellant was then asked to explain how the pocket from his pajama top which was found not on his wife's body, but on the throw rug by her feet, (See Photo GX 40) also had her blood type on it? Appellant's explanation29/ was that he had not made a circuit of the house wearing his pajama top but had gone directly into the master bedroom and had covered his wife with it.30/
Appellant was asked whether the bloody club found outside the utility roan door came from the household; to which he replied; "I never saw it".31/ After learning that the dimensions of the club were approximately 1-5/8 x 1-1/2 inches he replied that he "didn't have any two by twos . . . " or if he did they weren't cut "specifically that way" and they were outside the house in the wood well and not inside the house. (Id.)
The club (GX 306) was identified by its annual growth rings, which perfectly matched, as having once been part of a larger piece of wood (GX 141) which was a bed slat in Kimberly's bed. (Tr. 3812) (See Photos GX 423-425) Contrary to their presentation in appellant's brief (Br. at 23) that the club "probably had at one time been part of the wood which had been used as a bed slat", the witness testified: "It is my opinion that Exhibit 306 (the club) was at one time a part of this [the bed slat]. Exhibit 3812.
While the bed slat was completely painted, the club was not, indicating that the club was cut from the larger bed slat prior to the painting of the slat. (Tr. 3815-3816). Examination of the two layers of paint found spattered on the club revealed that they were identical in chemical composition and sequence of layers to the paint on a pair of Perry brand latex surgeon's gloves (GS 329) and on a large piece of wood (GX 328), both of which were found in the locked storage shed. (See Photo GX 428). (Tr. 3822). When the headboard of Kimberly's bed (GX 637) was placed so that the legs rested on the club and the wood from the shed, respectively, the configuration of the square paint stains on the boards was found to match that of the headboard. (Tr, 3829) (See Photos GX 214, 430). The paint was also identical in chemical composition. (Tr. 3830), A photograph depicting Colette (GX 2) MacDonald from the back painting shelves and wearing what appear to be surgical rubber gloves was admitted into evidence. (Tr. 3824).32/ Also admitted into evidence were pieces of homemade shelf supports (G 330, 331) from the closets in the house which like the club (GX 306) had been sawed from larger pieces of wood. (Tr. 3818-19). No evidence was adduced at trial that the club matched any of the wood found outside the house in the wood well. Further there was testimony that the soft wet sand around the well and the well itself were undisturbed. (Tr. 2338-39).
When asked whether he had an ice pick around the house, appellant replied that; "No, I didn't have an ice pick." (Tr. April 6, Vol. I. at 46-47). Upon being asked whether or not he hadn't told other investigators that there was an ice pick in the house appellant became irate and stated: "I never said there was an ice pick in the house. We had no ice pick. I'm lazy and I buy ice cubes." (Tr. April 6, Vol. II, pp. 11-12).33/
In recounting his movements throughout the house after the intruders had left, appellant described touching the various bodies, washing his hands, using the phones, but he was emphatic that he did not go outside the utility room door. (Tr. April 6, Vol. I at pp 84-86).
When the interview resumed on the afternoon of April 6, 1970, appellant learned for the first time from the investigators that many threads and yarns identical to those of his pajama top were found in the master bedroom, that Kimberly's blood was found on the rug and on the sheet on the floor of the master bedroom. (Tr. April 6, Vol. II at pp. 9-10). Further, the investigators told appellant that they suspected that the sheet had been used to move one of the bodies.
Numerous other statements by the defendant, all consistent with this basic account by the appellant, were offered in evidence by the Government. (Tr. 4619-27, 4665-4705). See (GX 1141).
A letter (GX 12) was introduced which appellant had sent to his in-laws on November 19, 1970; in the letter appellant alludes to a phone conversation of that day in which he claimed to have caught and killed one of the intruders. (Tr. 3279-3283).
22/ Exhibits 1135 and 1136 are the two Volumes of the transcript of that tape and citations will be to the pages of the April 6th transcript. (GX 1116).
23/ There was testimony from a witness who had attended class with Colette MacDonald that night, that she had brought up the recurring problem of the children climbing into the parents bed. (Tr. 2824-25). There was also testimony from the baby-sitter that the older child, Kimberly, (whose blood type was found on the rug in the master bedroom) was in the habit of climbing into the parents bed. (Tr. 3558-59).
24/ Jeff, why are they doing this to me?" (Tr. April 6, Vol. 1. 48).
25/ "Daddy, Daddy, Daddy." (Tr. April 6, Vol. 1. 49).
26/ "Acid is groovy, kill the pigs." (Tr. April 6, Vol. 1. 4).
27/ CID Agent Shaw: Captain MacDonald, you told one of the other investigators earlier that you were wearing a pajama top that was pulled over your head, or something like that.
MacDonald: Right. Well, all I know is that--well, when I was struggling now--after I had been hit the first time, I was struggling with these guys; and my--somehow, my pajama top--I don't know if it was ripped forward or pulled over my head. I don't think it was pulled over my head. I don't remember actually--like backing my head through it. But all of a sudden, it was all around my hands and it was in my way. And I remember that I was holding this thing in my hand--the guy's hand--that--that I couldn't maneuver very well. My hands were kind of wrapped up in the thing. And as they were punching me, I was kind of using that a little bit, you know, holding it--right, exactly--'cause this guy, I thought, was really punching me in the chest, you know, and in the stomach 'cause I--I was getting hit across here (pointing to the mid-section of his body). So, in effect, I was blunting everything by, you know, holding this up; and I couldn't get my hands free out of this thing. And I remember I ended up, when I was laying on the floor--I forgot to say that--when I woke up on--it was still around my hands and everything, and I took it off as I was going in the bedroom. And after I took this knife out of my wife's chest, I--you know, keeping her warm. You know, to treat shock, that would be (inaudible) and keep them warm. (Transcript of April 6, 1970, morning tape, Vol 1. pp 12 & 13)
28/ The jury heard uncontradicted testimony that the appellant's wife's blood type was found in at least twenty-five places on his pajama top and, that some of these bloodstains were bisected by the tears in the garment, from which the examiner concluded that appellant's pajama top had been stained with [his wife's] blood prior to the garment being torn. (Tr. 3648-54, 4076-79). There was also testimony that the cuts in the wife's pajama top were not consistent with having been made with the dull bladed Geneva Forge knife (though they were consistent with having been made by the sharp bladed Old Hickory paring knife found outside the house.) (Tr. 4063-66). Conversely, the two cuts in appellant's pajama top were consistent with having been made by the Geneva Forge paring knife found by the wife's body but were inconsistent, the examiner testified, with those having been made by the Old Hickory knife. (Tr, 4067-68).
29/ CID Agent Shaw: All right, moving along a little bit further with this thing. How does it happen that the pocket from this pajama top has a little bit of your wife's blood on it, very, very minute: thing; but it's laying in the bedroom. The rest of it--of the jacket is soaked with her blood--
MacDonald: I laid it--I laid it over her.
CID Agent Shaw: These are--
MacDonald: I'm sure I took the thing off.
CID Agent Shaw: --(inaudible), you know.
MacDonald: I'm sure I took this thing off the first time. I don't--I didn't make a circuit with this jacket on, I don't think. I came down the hallway--I know that--and I went in, and I took it off to get my hands free--
CID Agent Shaw: Yeah.
CID Agent Shaw: Okay.
MacDonald: --And sometime while I was in there the first time, I--you know, I put it over my wife. (Transcript April 6, 1970, Vol. I, pp. 69-70).
30/ The jury heard uncontradicted testimony that type AB blood, the same type as appellant's older daughter, Kimberly, was also found on his pajama top. (Tr. 3649-3650).
31/ Shaw: We think that--that this club that you originally thought was a baseball bat or something might have come from around the house or something like that. In fact, I'll show it to you. I don't know if pieces of wood will mean anything to you from a photograph, but there is--well, there's paint on it. In fact, we had the idea that you might have used this around the house.
A. I never saw it.
Q. People use pieces of wood to pry open doors--
Q. --and windows--
Q. --for one thing and another.
A. I don't you know, recognize this. Now, I had--I always had some extra lumber laying around in the little well outside the back of my house, but I don't--how long is this? One--it's about three feet?
Q. Yeah, uh-huh (yes), about three feet.
A. Not specifically, no, I don't recognize this.
Q. Well, think about the stock you used to make this--this shelving from. There was a--
A. What size lumber is--it?
Q. It's about one by--one and five-eights by one and a half.
A. A two by two.
A. I didn't have any two by two's. I used four--two by four's that I took out of the old Third Med Supply area. When we broke it up, we--they were going to burn it all and send it--you know, send it to the trash, and I just used my two by four's and cut them down.
Q. Did you use the--did you make the shelving in Kimmie's closet?
Q. Down below there?
Q. There's a piece of wood there very similar to this, very similar.
A. Maybe it was around. I--I, you know, don't specifically recognize it from this--you know, from the photograph.
Q. Did you have an ice pick?
A. I don't think I had any two by two's and this is a two by two. I--I know I didn't have any two by two's specifically cut that way. There was four by four's, I think in scraps. Two by four's and just scraps of lumber. (Tr. April 6. Vol. I. m. 45-46).
32/ The results of these wood and paint comparisons are reflected graphically on a chart, GX 655.
33/ The jury heard testimony from two witnesses who described separate occasions in which they used an ice pick to chip frozen food loose from the freezer. (Tr. 3266, 35601).
THE LABORATORY RESULTS
There was a great deal of technical evidence presented to the jury which was the result of examinations conducted by the FBI Laboratory in 1971 and in 1974. In addition to those results previously described the jury heard extensive testimony about appellant's pajama top and about the pile of bedding on the floor of the master bedroom.
THE PAJAMA TOP
Appellant's pajama top has 48 puncture type holes, none of which are found in the torn left panel or sleeve, and all but nine of the puncture holes are in the back and right shoulder of the garment. (Tr, 4056-58) See (7, 606-612). These puncture holes are consistent with having been made by the ice pick (GX 312), and due to the absence of torn fabric surrounding the punctures, the examiner testified that the garment, in his opinion, was stationary when the puncture holes were made. (Tr. 4056-58, 4074-75).
In addition to the testimony that the pajama top was bloodstained before it was torn (Tr. 4076-77) there was evidence that the garment had been torn from the front by one grabbing the V-neck and pulling downward and to the right. (Tr. 4068-70).
When appellant's pajama top was folded right sleeve inside out, as it was found on Colette MacDonald's body, and is depicted in Photo G 1137, it was discovered that twenty-one puncture holes were visible on the upper most layer of (the right sleeve) the material. (Tr. 4192) When twenty-one probes were inserted through these holes in a specific sequence, it was possible to simultaneously align all forty-eight punctures with twenty-one probes. (Tr. 4193-95) See GX 787(a). The examiner concluded that all forty-eight punctures, which due to the absence of torn areas were made while the garment was stationary, could have been made by twenty-one thrusts of an ice pick passing through the folds in the material. (Tr. 4195).
When the twenty-one probes are inserted simultaneously through the pajama top a pattern of sixteen holes appears on the left side and five holes on the right side (Tr. 4192). The photographs authenticated by the pathologist depict that Colette MacDonald sustained sixteen puncture wounds on the left side of her chest and five puncture wounds on the right side. (Tr. 2513-2518). When the pattern made by the ice pick wounds and the pattern made by the probes are plotted on graph paper, they are virtually identical. (Tr. 4457-70) See (GX 1070). Based on these circumstances the examiner testified that in his opinion, the appellant's pajama top could have been on top of Colette MacDonald's chest when the punctures were made in the pajama top. (Tr. 4197).
THE BED SHEET
There was expert testimony that the top sheet from the master bed (GX 103), found on the floor of the master bedroom, contained blood stains of type A (Colette's group) in twenty-six areas and spatters of type AB (Kimberly's group) in two areas. (Tr. 3662-66). Further examination of this sheet by the FBI Laboratory in 1974 revealed that several of these stains (which were in Colette's type blood), were contact stains or fabric impressions.34/ There was testimony, not reflected in appellant's brief that in the opinion of the examiner that areas "A and B" were made by bloodstains transferred from the right sleeve of appellant's pajama top (Tr. 4146-52) See (GX 1077-78); areas "C and D" had the general appearance of having been made by bloody left and right hands (Tr. 4138-39); a portion of area "E" conformed in general appearance to a bare left shoulder,35/ while another portion of area "E" was made by blood transferred from the left sleeve of appellant's pajama top after it was torn (Tr. 4136-37); area "F" was made by blood transferred from the left sleeve of Colette MacDonald's pajama top (GX 270) (Tr. 4133); area "G": was made by the right sleeve of Colette's pajama top (Tr. 4134).36/
There was further evidence adduced that the bedspread (GX 104) found inside the sheet was heavily stained with Colette's type blood. (Tr. 3667). In addition a hair which was microscopically identical to the head hair of Colette MacDonald,37/ and had a blood-like deposit on its shaft, was found adhering to the bedspread and entangled with a purple cotton thread matching those found in the seems of appellant's pajama top. (Tr. 4103-10).
34/ These are on the sheet (GX 103) are referred to by letter A--G.
35/ Appellant's pajama top was torn so as to expose the left shoulder. (Tr. 4113-17) See (GX 606).
36/ Appellant's experts contested the conclusion of the FBI examiner with respect to stain areas C. D. E, and G, but testified on direct examination that they agreed that areas A and B were made by the right sleeve of appellant's pajama top and that area "F" was made by the left sleeve of Colette MacDonald's pajama top. (Tr. 5173, 5192).
37/ Known head hair samples of Colette MacDonald were not obtained until she was exhumed in 1974 as part of the grand jury's investigation.
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