COMMONWEALTH vs. HEATHER DRAGOTTA (аnd three companion cases1).
No. 14-P-1796.
Essex. January 12, 2016. - February 25, 2016.
February 25, 2016
89 Mass. App. Ct. 119 (2016)
Present: KAFKER, C.J., COHEN, & BLAKE, JJ.
Further appellate review granted, 475 Mass. 1102 (2016).
Assault and Battery. Wanton or Reckless Conduct. Parent and Child, Duty to prevent harm. Child Abuse. Practice, Criminal, Hearsay, Witness. Evidence, Expert opinion, Hearsay, Witness, Expert.
The evidence at a jury-waived criminal trial was sufficient to support the defendant‘s conviction of wantonly or recklessly permitting another to commit an assault and battery upon her infant daughter causing bodily injury, where the judge could find that the defendant continued to allow her boyfriend to care for the infant knowing that he did not know how to do so, that he had not followed instruсtions in the past, and that he had repeatedly and forcibly mishandled the child in such a manner as to cause her substantial harm [124-125]; further, the evidence was sufficient to support the codefendant boyfriend‘s convictions of assault and battery upon the same child causing bodily injury [125-126].
At a criminal trial, the testimony of the Commonwealth‘s expert medical witness, in which she referenced another doctor‘s impressions as material upon which she had relied in reaching her own оpinion, did not result in a deprivation of the defendant‘s right to cross-examine the witnesses against him [126-127]; further, to the extent that the presentation of this evidence on direct examination was error, it did not create a substantial risk of a miscarriage of justice, where none of the challenged testimony undercut the defense theory, and where it could be assumed that, as the case was tried without a jury, the judge did not rely on the testimony for any improper purpose [127-129].
INDICTMENTS found and returned in the Superior Court Department on October 1, 2010.
The cases were heard by Richard E. Welch, III, J.
Jacob B. Stone for Steven Amos.
Patrick Levin, Committee for Public Counsel Services, for Heather Dragotta.
Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.
Sufficiency of the evidence. Viewing the evidence in the light most favorable to the Commonwealth, the judge was warranted in finding the following. See, e.g., Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
The victim was born on April 27, 2010, without any complications. Dragotta is the victim‘s mother. Amos was Dragotta‘s boyfriend but not the father of the child. On the evening of June 3, 2010, Dragotta and Amos brought the five and one-half week old infant to the Lawrence General Hospital emergency room because she was not using her right arm and cried when it was touched. The X-rays taken at the hospital showed that not only was the victim‘s right arm fractured, but that her left arm was bowing. The fracture of the right arm was a displaced transverse fracture, meaning that the fracture went entirely across the bone and the twо ends were slightly offset. These findings prompted the hospital to file a report of abuse with the Department of Children and Families (DCF), pursuant to
The next day, Wilson examined the victim and spoke to Dragotta and Amos about the cause of the injuries. Dragotta told Wilson that she returned home on June 3 with the victim after visiting hеr relatives in New Hampshire, and she gave the baby to Amos while she went into the kitchen. Shortly thereafter, Dragotta noticed the victim was not using her right arm.
Because of the unexplained injury to the victim‘s arm, Wilson ordered a full skeletal survey (X-rays), a computerized tomography
Kleinman described the fractures as being of various ages, with the arm fracture being the most recent and the two fractures to the lateral ribs being more recent than the other fractures, having likely been incurred somewhere between seven days and two to four weeks earlier.4 In Kleinman‘s opinion, all of the victim‘s fractures were caused by inflicted injury.
Wilson reviewed the test conducted on the victim‘s head and testified that there was a subdural hematoma or bleeding on the brain. Wilson gave an opinion that the injury was the result of inflicted trauma from an acceleration or deceleration motion to the head. Two theories account for such an injury: either the head goes back and forth in such a motion as to create a whiplash or banging of the brain against the skull, or the head may accelerate into a solid object causing the skull to stop when it strikes the object while the brain continues going forward.
Wilson further opined that the victim would have been in pain when the fractures were inflicted, and she agreed that the arm
Dragotta and Amos were first asked about these injuries on Friday afternoоn, June 4, 2010, by Detective Daniel Cronin and by Amy Silverio, the DCF worker assigned to the case. Interviewed alone, Dragotta explained that her infant daughter‘s health was unremarkable until she was about two weeks old, when she developed some gassiness and could be fussy at times. She told her pediatrician about this at the well-being visit on May 11, 2010, and according to Dragotta, he recommended gently moving the infant‘s legs in a bicycling motion to relieve the gas and demonstrated the manеuver for her. Dragotta showed Amos the maneuver when she got home.
When asked how she thought the victim could have sustained her injuries, Dragotta became tearful and admitted that a maneuver Amos used to help the victim relieve gas could have broken her ribs. Dragotta described the maneuver as one in which Amos would take the victim‘s “legs and push them towards her stomach and push down to relieve some gas or stool.” Dragotta said Amos did this maneuver “pretty often” and “сonsistently for about one week.” She acknowledged that the victim would cry when Amos did this. On one occasion, the victim made a particularly disturbing sound that prompted Dragotta to tell Amos not to do it anymore; she believed he heeded her request.
Dragotta thought the injury to the victim‘s head and arm were new. She suspected that her sister, who had briefly watched the victim during her visit to New Hampshire on June 3, may have done something. Dragotta told Silverio and Cronin that her sister sufferеd from depression and had a “couple OUI‘s [driving under the influence of alcohol].” Dragotta was informed that DCF would be taking custody of the victim and was visibly upset when she left the interview room and passed Amos.
Upon entering the interview room, Amos blurted out, “If I tell you I hurt her, can she get her baby back?” Cronin admonished him not to lie to protect someone else. Amos immediately volunteered that he could explain the rib fractures because he was “positive” he had broken her ribs. He demonstrated how he put his hands behind the victim‘s knees and pushed forcefully up and
When Amos did this, he said the victim would grunt, cry, and defecate. According to Amos, Dragotta had seen him do it three or four times. He said that the maneuver “relieved” the victim for two to three hours and that he was doing it to help Dragotta, who was stressed “paper thin.” He admitted being concerned that he was hurting the victim and that he was pushing too hard.
About a week before the interview, around May 28, Amos thought the technique was no longer working because nothing was coming out of the victim‘s buttocks. He stopped doing the technique because he was afraid he was causing damage to the victim‘s internal organs and her ability to go to the bathroom on her own.
Amos said he could also explain the head injury. During that Memorial Day weekend, about the time he stopped doing the knee-to-stomach maneuver, Amos used the victim “like a guitar,” dipping and spinning her in the living room while he listened to music and Dragotta took a shower. He said he had her in one arm with a hand on her buttocks and two fingers around her neck until he made a forward motion and removed his two fingers from her neck leaving her head unsupported and her head came crashing down on his collarbone. The victim was still too young to be able to hold her head up, a fact Amos must have known as her caregiver. The victim cried for a couple of minutes and he saw bruising on her ear.
Although Amos initially denied having knowledge of what could have caused the injury to the victim‘s right arm (which prompted the visit to the emergency room), he admitted at the end of the interview that he may have grabbed her arm too tightly when she was lying on his chеst on the evening of June 3, 2010.
The following Monday, June 7, 2010, Silverio and Cronin interviewed Dragotta again, at her home. Her mother, Kim Dragotta, was with her. Dragotta admitted seeing the bruised ear during Memorial Day weekend and some bleeding in the victim‘s eye.5 At the time, Dragotta asked Amos about it, and he told her about the infant‘s head striking his collarbone while he was dancing
Discussion. 1. Sufficiency of the evidence. Dragotta argues on appeal that the evidence was insufficient to support her conviction of wantonly or recklessly permitting Amos to commit an assault and battery upon her child causing a bodily injury, namely, the head injury.6 “Wanton or reckless conduct may occur by act or omission where there is a duty to act and the failure to so act provides a ‘high degree of likelihood that substantial harm will result to anothеr.‘” Commonwealth v. Robinson, 74 Mass. App. Ct. 752, 759 (2009), quoting from Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). See, e.g., Commonwealth v. Pugh, 462 Mass. 482, 496-497 (2012). The wanton or reckless conduct here was Dragotta‘s continuing to allow Amos to care for the infant knowing that he did not know how to do so, that he had not followed instructions in the past, and that he had repeatedly and forcibly mishandled the child in such a manner as to cause her substantial harm.
The evidence that we consider under the Latimore7 standard established that Dragotta regularly observed Amos push the five and one-half week old victim‘s knees into her chest with such force that she defecated. This was not at аll like the gentle bicycling maneuver that Dragotta had been taught, and which she had explained to Amos. The force she saw applied was described by the expert as similar to that typically associated with a motor vehicle collision. The force here resulted in multiple fractures of the ribs and fractures of the right and left leg. In addition, the fractures were in various stages of healing confirming that this technique had been used on multiple occasions. These frаctures would have caused the child to be irritable and fussy, and while
Finally, Dragotta‘s tearful response during her interview with Silverio and Cronin, when she revealed that Amos‘s technique for relieving gas may have broken the victim‘s ribs, is direct proof that she knew the maneuver exposed the victim to bodily injury. Even if the judge credited Dragotta‘s testimony that she eventually told Amos to stop using this much force to compel the infant to pass gas and defecate, she nonetheless continued to allow him to provide unsupervised care for the child despite her knowledge that he obviously did not know how to care for the child safely, as later confirmed by the child‘s subsequent, substantial injuries, including the head injury for which Dragotta was held respоnsible for recklessly permitting.
In these circumstances, the judge could find that Dragotta knew or should have known that there was a substantial risk that Amos would injure the child if she remained in his unsupervised care. See Commonwealth v. Garcia, 47 Mass. App. Ct. 419, 422 (1999) (even if there were no direct evidence that the parents of a thirty-three day old infant were aware of multiple rib, clavicle, and leg fractures, and a skull fracture, evidence of unexplained bruises and recognition that the infant was in pain was sufficient cirсumstantial proof to conclude that “an ordinary person in the same circumstances would have realized the gravity of the danger“). See also Commonwealth v. Roderiques, 462 Mass. 415, 427 (2012) (evidence showed that the defendant knew assaults were occurring but wantonly and recklessly failed to intervene).
Similarly unavailing is Amos‘s claim that the evidence was insufficient to support his convictions on three theories. He first claims that the injuries occurred when he was acting in loco parentis and attemрting to care for the victim. The excessive, unreasonable force Amos used breaking the infant‘s ribs while trying to cause her to pass gas and defecate clearly exceeded any imaginable in loco parentis rights.8 See Garcia, supra. His desire to amuse and interact with the infant likewise did not encompass a
Next, Amos argues that proof of recklessness is absent because he was unaware that his сonduct was likely to cause the victim substantial harm. The claim belies the recognition in his statement to Silverio and Cronin that the pushing maneuver may have been causing organ damage, that using the infant as a guitar and letting go of her head so that it crashed on his shoulder may have caused the brain bleed, and that his grabbing of the victim‘s arm so tightly may have broken it. Moreover, proof of recklessness only requires that the defendant intended to do the reckless act, not that he intended a specific result. See Welansky, 316 Mass. at 398-399; Commonwealth v. Macey, 47 Mass. App. Ct. 42, 48 (1999). All that is required is that “an ordinary person in the same circumstances would have realized the gravity of the danger.” Garcia, supra at 422. Here, there is no question that there was sufficient evidence to support a finding that Amos intended the acts that caused the multiple fractures and subdural hematoma. We are also convinced on this evidence that an ordinary person in the same circumstances would have realized the substantial risk of injury to whiсh he was subjecting an infant by engaging in such conduct. See ibid.
Amos‘s third contention, that the Commonwealth was required to prove that Amos had exclusive control of the victim, fails to recognize that viewing the evidence and the inferences in the light most favorable to the Commonwealth was sufficient to show that Amos had control of the victim and that he inflicted the injuries. See generally Macey, supra. The Commonwealth need not “exclude all possible exculpatory interpretations of the evidence.” Ibid., quoting from Commonwealth v. Russell, 46 Mass. App. Ct. 307, 310 (1999).
2. Wilson‘s expert testimony.9 Next, Amos argues that Wilson improperly testified to a neuroradiologist‘s opinion that the subdural hematoma was acute, thereby depriving him of the right to
creates “a substantial risk of causing . . . physical harm [beyond fleeting pain or minor transient marks]“).
Amos adds to this argument that Wilson‘s testimony regarding the neuroradiologist‘s impressions, as well as her recitation of the details underlying her differential diagnosis, ruling out other causes of the injury, violated the prohibition against an expert presenting on direct examination the specific information on which she relied. See Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 527-528 (1986); Greineder, supra at 594; Commonwealth v. Jones, 472 Mass. 707, 713-715 (2015).10 We assume without deciding that the admission of the challenged evidence was error. Because thе defendant did not object, we review only to determine whether the error, if any, created a substantial risk of a
Amos presented a defense grounded on the theory that the victim‘s bones were not healthy, which was undetectable to him or Dragotta, and therefore, his innocent actions would not have caused injury to a healthy child. In support of this theory, Amos presented an expert who gave an opinion that the victim suffered from rickets or, alternatively, a copper deficiency, that caused the bones to weaken and break. A second expert opined that the victim‘s increased platelet count generated from the healing fractures could have caused the subdural hematoma. A high platelet count will make it more likely blood will clot, and in this case, that clot may have expanded in the small collection of veins in the skull causing a small tear and bleed.
None of the challenged testimony undercut the defense theory. In particular, one expert agreed with Wilson that the subdural hematoma was acute, eliminating any risk of prejudice from Wilson having conveyed the same impression after consulting with the neuroradiologist. Moreover, the defense was able to elicit testimony from Wilson that bolstered its case, namely, that the victim did not exhibit signs typically associated with a head injury from an acceleration or deceleration event, and that Wilson failed to run a full set of tests to determine the health of the victim‘s bones. In these circumstances, the admission of the challenged evidence did not create a substantial risk of a miscarriage of justice.
Finally, this was a bench trial. “[I]t is presumed that the judge as trier of fact applies correct legal principles.” Commonwealth v. Milo M., 433 Mass. 149, 152 (2001), quoting from Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992). “[T]he judge will understand the limited reason for the disclosure of the underlying inadmissible information and will not rely on that information for any improper рurpose.” Williams v. Illinois, 557 U.S. 50, 69 (2012). “In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.” Harris v. Rivera, 454 U.S. 339, 346 (1981).
We conclude the judge here was not improperly swayed by having some of this information introduced on direct rather than
Judgments affirmed.