On February 27, 1984, the defendant, a nineteen year old mother, brought her eleven month old son (the child) to the Children’s Hospital in Boston. After an exami
On May 23, 1984, a Suffolk County grand jury indicted the defendant for manslaughter in connection with her son’s death. Before trial, the defendant filed a motion to exclude certain psychiatric evidence derived from a forty-five minute private conversation between the defendant and a physician. The defendant also filed a motion to suppress two nursing bottles (nursers) used in feeding the child while at the hospital and the results of tests showing the nursers’ contents to be tainted with dangerous concentrations of sodium. Both motions were denied.
The defendant obtained leave to appeal the denial of each motion. The Supreme Judicial Court reversed the motion judge’s denial of the exclusion motion and precluded the psychiatric evidence from being introduced at the trial.
Robinson
v.
Commonwealth,
The case was tried before a Superior Court judge and a jury. The defendant’s motions for a required finding of not
The defendant has raised numerous issues on appeal. She challenges the judge’s denials of her motions for a required finding of not guilty filed during the trial and also after the return of the verdict. The defendant also contends that the judge erred in some of his evidentiary rulings. Finally, the defendant contends that the prosecutor engaged in misconduct of such a nature that a new trial is required.
We start our analysis with the “required finding” issue. During the course of summarizing the facts necessary to our decision on that issue, we will dispose, by footnotes, of some of the other claims raised by the defendant.
1. Denials of motions for required finding of not guilty.
a. Denials of motions filed during trial. The defendant agrees with the Commonwealth that the child died of salt poisoning and that the excessive salt found in the child came from a quart bottle containing his formula. The defendant ■argues, however, that the Commonwealth failed to present sufficient evidence that she was the person who put the salt into the formula.
In deciding the issue raised by the defendant, we apply familiar standards. “In reviewing the denial of motions for [required findings of not guilty] in criminal cases, we have frequently said that ‘we must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient... to permit the jury to infer the existence of the essential elements of the crime charged ....’”
Commonwealth
v.
Latimore,
From February 27 to February 28, the child lost a small amount of weight. He was placed on an intravenous unit (I.V.) on February 28. At that time, the total amount of salt in the child’s body was equivalent to two and three-quarters teaspoons, a normal amount of salt. On February 29, the defendant commented to a nurse that the child was getting puffy from the I.V. and, on Thursday, March 1, she said, “if only he could be that big all the time.”
In the afternoon of March 1, another parent whose child was a patient at the hospital overheard the defendant lamenting the fact that the child’s medical problems were not yet solved. During this conversation, while holding the child on her lap, the defendant said, “Poor little thing would be better off dead.”
3
Later the same day the, defendant com-
A Mrs. Roche and a Mr. and Mrs. Keller, parents of children receiving treatment in the hospital, had become friendly with the defendant. While they were in the parents’ waiting room, the defendant told them that “they were trying to take her baby away.” When asked who was trying to take the [child] away, the defendant responded, “I read [the child’s] chart. They’re trying to take my [child] away.” According to Mr. Keller, the defendant said, “I can’t believe Social Services [is] investigating me for child abuse.”* **
4
Later that week, Mrs. Roche heard the defendant say that she was concerned that the child was not gaining weight and “she had to come up or figure out some way to get him fattened up so she [could] get him out and take him home”. Also during the week, the defendant told Mrs. Roche that while she was pregnant she had become overweight and her obstetrician told her to stop using salt. The defendant also told an investigator that she knew salt was bad and could lead to swelling. In a later conversation with an investigator she said she
In the afternoon of March 1, around 2:30 p.m., a dietary aid saw the defendant in the divisional kitchen making tea. The dietary aide left but returned to the kitchen at 3:05 p.m.. At that time, she observed and wiped up from the counter some white particles which she assumed to be sugar. 5 At 10:00 a.m. on March 2, another dietary aide saw the defendant boiling water in the kitchen. At noon on the same day, a nurse entered the divisional kitchen and discovered that the round tupperware container of salt packets was not in its normal place. Instead, she found a square plastic container of salt packets among the sugar and crackers. The nurse observed that about forty or fifty of the packets were empty and there was no loose salt in the container. Later, the defendant’s fingerprints were found on two of the empty salt packets.
On March 2 at 3:00 p.m., the child underwent a pancreatic stimulation test. This test required that the child not be fed the whole day. During the test, however, he was to receive intravenous fluids. At about 5:00 to 5:30 p.m., while the child was undergoing his test, Mrs. Roche and the defendant were in the hospital cafeteria. Mrs. Roche saw the defendant take more than a “handful” of salt packets from the serving line and place them in her “pocketbook/pouch.” When Mrs. Roche asked about the salt, the defendant answered that
The child was returned to the defendant after the pancreatic stimulation test at approximately 8:00 p.m. The defendant told the nurse that she had saved dinner and would feed the child. The nurse, one Turner, did not see the defendant feed the child at that time.
Nurse Turner checked with the defendant an hour later in the child’s room. The defendant said that she had fed the child “one teaspoon of cereal, one-half teaspoon of fruit, two peas and [one half ounce] of Pregestimil.” An hour later, at 10:00 p.m., Turner noted that the child’s feet and eyes were marked by puffiness. The defendant told her that the child had refused to take any more from the bottle. Turner told the defendant that the child should be fed again because of his lack of food during the day. During this conversation, the defendant pointed out that the child had received intravenous fluids during the day, he looked puffy and “good,” and that “[i]t’s too bad it’s just fluid.”
During the night, around midnight, the child started screaming. A nurse removed the child from his bed for a feeding. Another nurse, Clarke, warmed the child’s formula, drawn from the quart bottle in the divisional kitchen refrigerator. Then, she transferred the warmed formula into the nurser that another nurse had found on the child’s bedside table. The nurse tried to feed the child from the nurser but he continually struggled and would “suck, swallow, turn his head and scream.” He ended up ingesting two ounces of the formula. Next, another nurse attempted, unsuccessfully, to feed the formula to the child. She used a child’s cup taken from his bedside table. During this feeding, the child also
Sometime between 4:00 and 5:00 a.m., March 3, one of the other parents in the room woke the defendant, who was sleeping on a cot in the child’s room. The child had started choking and vomiting. After changing the child’s diaper and reporting his vomiting and excretion to the nurse, the defendant returned to her cot and slept. At about 7:00 a.m., the defendant brought the child out to Clarke, who was still on duty. The nurse observed that the infant was “breathing hard,” “flopping,” and had a fever. A doctor, one Parker, examined the child in the treatment room at about 7:30 a.m. She confirmed that the child’s temperature was extremely high. The child’s condition worsened and he became comatose and cyanotic. Resuscitative and diagnostic procedures, such as drawing blood to determine sodium and potassium levels, were undertaken. Sometime between 8:30 a.m. and 8:45 a.m., someone in the treatment room said the laboratory results were back and the sodium level was “234,” an ex-' tremely high level. 7 At the time the sodium level was announced, no one had seen the defendant in or near the treatment room.
The child was moved to an intensive care unit (ICU) on the sixth floor. Between 8:50 a.m. and 9:00 a.m. the defendant arrived on the fourth floor. There, she encountered Mrs. Roche and told her that the child was ill “because his sodium level was high, that he had too much salt in his body, that it must have been something he ate or drank.” At that time,
After the child was admitted to the ICU, another blood sample was taken by that unit’s laboratory. The sodium level was even higher than the result obtained earlier. The hospital personnel were alarmed by the high sodium level and started to look for its origin in the hospital. Initially, they checked the intravenous fluid given to the child during the pancreatic stimulation test. The sodium level in the remaining 200-280 cc of fluid was normal, at one-half the percent of salt found in the human blood stream. Other items used in diagnostic testing on the child were excluded because the volume of their composition would not be large enough to create such a sodium level. The results of their preliminary investigation, coupled with the sodium levels found in the child, led the investigators to conclude that a massive dose of salt had been orally administered to the child. The investigators then tested a sample of the formula taken from the quart bottle which was in the refrigerator. The child had been fed that formula the previous evening. The sodium level in the sample was 2,200 milliequivalents (“mEq”) and the chloride level was 2,000 mEq. Those levels indicated that an amount equivalent
One of the investigators, a doctor, entered the child’s room and found the defendant’s belongings. He opened one of her suitcases and found a closed duffel bag. Inside the bag he discovered a nurser which still contained five ounces of formula. The doctor tasted the formula and found it extremely salty. A sample of this formula was then tested. The sodium level of the sample was 970 mEq and the chloride level was 980 mEq.
The milk lab was inspected at 1:30 or 2:00 p.m. The hospital authorities found no salt anywhere, because salt was not used by the laboratory personnel as an additive and, therefore, had never been stored in the milk lab. In addition, blood samples were drawn from all other babies for whom formula was prepared in the laboratory on March 3, and all of their sodium levels were normal.
The child died on Monday, March 5, never having regained consciousness. The defendant’s mood became hysterical. When the defendant saw another mother, whom she had befriended, she commented, “He’s not supposed to be dead. He is just supposed to be sick.”
The defendant argues there was no direct evidence linking the defendant to the child’s death and that the circumstantial evidence and its inferences were insufficient as matter of law to establish that link. We disagree and conclude that the evidence was sufficient to warrant a rational trier of fact to find beyond a reasonable doubt that the defendant placed large amounts of salt in the child’s formula, causing his death.
Although the case against the defendant rested on circumstantial evidence, “[i]t is well settled that a case may be submitted to the jury on the issue of a defendant’s guilt on circumstantial evidence.”
Commonwealth
v.
Healy,
Here, there was evidence that the defendant had the means and the opportunity to commit the crime. Salt in large amounts was available to her, and she had access to the child’s formula while it was being refrigerated. She was observed in and around the kitchen, the location of the refrigerator, on several occasions, including the relevant times that the two salt loads were added to the formula (see note 5, supra). A nurser containing salt-tainted formula was found secreted in the defendant’s belongings. There was evidence which could indicate that on the morning of March 3 the defendant knew that the child’s crisis was the result of salt ingestion before that fact was known to anyone else outside of the treatment room. Further, the defendant could have been found to have been motivated, however irrationally, to add salt to the child’s formula. She suspected that the authorities were directing an investigation to her as the possible source of the child’s failure to gain weight. She was aware that salt ingestion gave an appearance of added weight to the body. A reasonable inference could be drawn that the defendant added the salt to the formula to have the child give the appearance of weight gain, have him released from the hospital, and thereby deflect the investigation from herself.
It is possible, of course, that the salt was added to the child’s formula by accident during the course of his stay at the hospital. There was, however, considerable evidence of painstaking investigations conducted by the hospital personnel to locate the source of the toxic amount of salt found in the formula. The results of those investigations, by a process of elimination, pointed to the defendant as the source. See Commonwealth v. Arias, 29 Mass. App. Ct. at 620.
In the circumstances, we conclude that the evidence was enough at the close of the Commonwealth’s case so that the jury were not left to speculate as to the defendant’s guilt. We
b.
Denial of motion filed after verdict.
The defendant claims that the judge erred when he denied the defendant’s motion for a required finding of not guilty of involuntary manslaughter filed after the return of the verdict (see Mass.R.Crim.P. 25[b],
Involuntary manslaughter is an unlawful homicide unintentionally caused by wanton or reckless conduct. See
Commonwealth
v.
Welansky,
“In deciding a rule 25(b)(2) motion for a required finding of not guilty following a guilty verdict, ... [a trial judge and the reviewing court do] not properly exercise discretion concerning the weight or integrity of the evidence, but instead must assess the legal sufficiency of the evidence by the stan
2. Claims of prosecutorial misconduct. The defendant claims that during the various stages of the trial the prosecutor engaged in misconduct requiring a new trial. 9 In order to put the defendant’s arguments in proper perspective, it is necessary that we briefly outline certain rulings by the trial judge on a motion in limine filed by the defendant.
In that motion, the defendant requested that the judge prohibit the Commonwealth from introducing expert evidence concerning the “failure to thrive” syndrome and a related syndrome, known as “Munchausen by proxy.”
10
The day before the trial started, the judge allowed the motion in part and “barred [the Commonwealth] from introducing any evidence concerning either Munchausen by proxy or any profile evidence of the character, education, socio-economic condition, etc. of defendant ... on the Failure to Thrive syndrome.” The judge, however, did not preclude the Commonwealth “from introducing evidence of the physical condition of the child, . . . which led to his admission to Chil
Later, as we shall see, the judge modified his ruling, further limiting the Commonwealth’s presentation of evidence on those matters that were the subject of the defendant’s motion in limine. We now decide the defendant’s claims as they arose during the various stages of the trial.
a. The prosecutor’s opening statement. In his opening statement, the prosecutor represented to the jury that evidence would be introduced showing that, during the child’s several hospital admissions, extensive testing was done and the results of those tests excluded the possibility that the child’s failure to grow resulted from an organic disorder or disease. The prosecutor further represented that specific evidence would be presented that, throughout the course of the child’s life, the defendant failed to provide the necessary nutrients to sustain her child’s life and growth.
The defendant, immediately after the prosecutor’s opening statement, moved for a mistrial on the ground that the prosecutor had violated the judge’s ruling on the defendant’s motion in limine. The judge denied the motion but refined his previous ruling on the defendant’s motion. The judge ruled that the fact of the child’s two previous hospital admissions was admissible but “no evidence of what occurred in the prior two hospitalizations will be admitted at trial.” Further, the judge ruled that the Commonwealth will not be able to introduce any “direct evidence that the mother did not feed the child or that she provided inadequate nutrition for her child.” The prosecutor, in accordance with the judge’s ruling, did not introduce any evidence on those matters. The defendant now claims that the references in the opening statement constituted prosecutorial misconduct because the prosecutor knew that the evidence would not be admitted. The claim is frivolous.
A prosecutor may state in the opening statement whatever he reasonably and in good faith expects to prove by evidence.
Commonwealth
v.
Errington,
b. The claim that during the trial the prosecutor attempted to circumvent the judge’s rulings on the defendant’s motion in limine. The defendant claims that, despite the judge’s exclusion of any direct evidence that the defendant provided inadequate nutrition to the child, the prosecutor attempted to elicit testimony on that issue. She argues that such misconduct was “egregious” and deprived her of a fair trial.
Throughout the trial, the judge permitted testimony that the child’s failure to thrive did not result from organic causes. The judge, however, consistently excluded testimony on maternal/infant deprivation as an inorganic cause for failure to thrive. Because of the judge’s rulings, the prosecutor had to walk a narrow path. A few times during the course of the trial, which lasted over three weeks, the prosecutor’s questions could reasonably be considered as asking medical witnesses questions in regard to maternal/infant deprivation. The judge, when those occasions arose, brought the prosecutor back to the proper path of inquiry, and also immediately gave curative instructions to the jury. We have examined the examples (far fewer in number than the questions leading to reversal in
Commonwealth
v.
Long,
c. The prosecutor’s closing argument. The defendant argues that the prosecutor’s closing argument was “replete with errors.” She cites only two alleged instances in her brief. Both times, the prosecutor properly was arguing rea-
Judgment affirmed.
Notes
The medical condition known as “failure to thrive” is a chronic, potentially life threatening disorder of infancy and childhood. The term is used to describe infants and young children whose weight is persistently below the third percentile for their age on standardized growth charts, or less than eighty-five percent of the ideal weight for their age.
Failure to thrive results either from an organic condition, such as a serious pediatric illness, or from a nonorganic source, including the failure of the infant or child to receive adequate, proper food.
On March 2, there were sixteen or seventeen children on Pregestimil.
The defendant claims that it was error for the judge to admit the statement because it was irrelevant and highly prejudicial. There was no error. Evidence is relevant if “it has a rational tendency to prove the issues made
The defendant objected to the words “for child abuse” in Keller’s testimony. She argued that the prosecutor had violated a pretrial discovery agreement that he had entered into with the defendant whereby the Commonwealth had promised to provide to the defendant the statements of the Commonwealth’s witnesses. The defendant claimed that Keller’s statement did not include the words “for child abuse.”
The prosecutor responded that he had expected Keller’s testimony to be the same as Mrs. Roche’s and that Keller, on his own, added the words “for child abuse” in the course of his testimony. The prosecutor stated that he was as surprised as the defendant by the addition. The judge found no violation of the pretrial agreement and overruled the defendant’s objection. There was no error.
One of the Commonwealth’s expert witnesses testified that after the child’s death, information obtained over the course of the February 27 through March 5 admission was analyzed. The data included the child’s weight, blood chemistry analysis, fluid intake, urine output, and chemical composition and specific gravity of the urine. The witness testified that the child’s sodium level increased from two and two-thirds teaspoons of salt on February 28 to an additional three and three-quarters teaspoons of salt by March 2. By the morning of March 3, the child’s body contained yet another five teaspoons of salt. The witness testified that, in his opinion, two salt loads were administered to the child at different times. The first load, according to the witness, was sometime between 1:00 p.m. on March 1 and 3:00 p.m. on March 2, the second after 7:30 p.m. on March 2 and before 8:00 a.m. on March 3.
The defendant objected to Mrs. Roche’s testimony on the ground that the prosecutor had delayed in giving to her the contents of the witness’ statement. The prosecutor responded that he interviewed Mrs. Roche on June 4 at about 7:00 p.m. and gave the statement to defense counsel the following morning. The judge, after hearing that defense counsel knew of Mrs. Roche’s testimony fifteen days before she testified, permitted the Commonwealth to introduce the testimony. There was no error.
The normal level for sodium in a human is 135-145 milliequivalents (“mEq”).
On June 22, nineteen days after the trial started, the prosecutor learned that a nurse named Person was in the treatment room during the child’s crisis. She was interviewed and stated that she had learned that the child’s sodium level was “extremely high.” The nurse had “no memory” of leaving the room and telling the defendant.
The prosecutor told defense counsel of the interview on June 24, after both sides had rested but before final arguments. The defendant moved for a mistrial, claiming that if the jury heard the nurse’s testimony they might believe that the defendant learned about the sodium level from the nurse before she talked to Mrs. Roche.
The trial judge, after hearing arguments, offered to reopen the case and have Person testify. The prosecutor was agreeable to call the witness to testify on behalf of the Commonwealth. The defendant declined the offer “on tactical grounds.”
Appellate counsel now argues that the evidence was exculpatory and the prosecutor engaged in misconduct because he “wrongfully withheld” the statement. The argument is without merit. The defendant, as the judge’s offer shows, could still have had Person’s testimony but declined. Further, the evidence was not necessarily exculpatory, as the nurse would not have testified that she told the defendant of the sodium level.
We have already considered some of the defendant’s claims. See footnotes 4, 6, and 8.
See
People
v.
Phillips,