Commonwealth v. Roderiques
Massachusetts Appeals Court
January 5, 2011
78 Mass. App. Ct. 515
Assault and Battery, Wanton or Reckless Conduct, Reckless Endangerment of a Child, Lesser included offense, Request for jury instructions, Expert Opinion
A grand jury issued two indictments against the defendant –assault and battery upon a child under fourteen years of age causing substantial bodily injury and wantonly and recklessly permitting an assault and battery upon a child that caused the child substantial bodily injury. Per the defendant’s request, the trial judge gave an instruction on reckless endangerment of a child as a lesser included offense of second charge. The jury found the defendant guilty of reckless endangerment of a child. The defendant filed a motion to vacate the conviction, which was denied. On appeal, the defendant argued that reckless endangerment is not a lesser included offense and that the Commonwealth’s expert offered an impermissible opinion about an ultimate issue in the case. The judgment was affirmed.
Facts
On December 23, 2003, the defendant took her then seven week old infant to a pediatrician because the infant had flu-like symptoms. The infant was fussy and refused to eat the previous evening, keeping the defendant awake. The pediatrician did not notice anything out of the ordinary during the visit besides the flu-like symptoms and a small bruise on the infant’s cheek.
That night, the defendant, the defendant’s boyfriend, and the infant were alone in their apartment. The defendant fell asleep with her boyfriend on a pull-out sofa and the infant was nearby in a recliner on the floor near the defendant’s head. The infant continued to be fussy and woke up the defendant several times during the night to be fed and changed. The defendant was also awakened when the infant lost his pacifier; the defendant asked the boyfriend to put the pacifier back in the infant’s mouth, which the boyfriend did while complaining that the infant was a “crybaby.”
At 9:00 AM the next morning, the defendant called her father and told her the infant’s arm had been dislocated. The infant was rushed to a local hospital, where police observed bruises on the infant’s right arm, nose, left cheek, abdomen, and upper thighs. After the infant was airlifted to Boston Children’s Hospital, doctors learned that the infant had a fractured upper right arm, multiple fractures to both legs and ribs, a compression fracture of the spine, and a fractured clavicle. The fracture in the infant’s right leg was produced by a forceful pulling or twisting and was a frequent result of shaken baby syndrome. The fracture to the spine was consistent with an injury that would be sustained if the infant was slammed down on his buttocks. Experts later agreed that the injuries required a significant amount of force and would have caused the infant to cry loudly because of the amount of pain produced by the injuries.
Both the defendant and the boyfriend denied injuring the infant. The defendant told police that it must have been the boyfriend because he had been yelling at the infant to stop crying that night and occasionally handled the baby aggressively. The boyfriend said that the defendant must have hurt the baby. The boyfriend said that it was possible he stepped on the baby during the night when he went to the bathroom or went to get a drink of water.
Whether Reckless Endangerment is a Lesser Included Offense
The Appeals Court declined to decide whether reckless endangerment of a child is a lesser included offense of wantonly and recklessly permitting an assault and battery upon a child that caused the child substantial bodily injury finding that the defendant invited the error when she requested the instruction. Therefore, the court limited the review to whether giving the instruction created a substantial risk of a miscarriage of justice.
The Court concluded that even though the evidence was circumstantial it was sufficient to support a conviction on the second indictment on the theory that the defendant was aware her boyfriend was committing assault and batteries and the defendant wantonly or recklessly failed to intervene or rescue the infant from the boyfriend. To support this theory, the Court pointed to the uncontested facts presented at trial that the infant was injured while alone with the defendant and her boyfriend and the infant’s injuries would have caused the infant to cry out loud, evidence that the injuries were caused by force to the infant’s body and occurred over time, and the defendant’s claim that she did not hear the infant crying loudly, which experts agreed would have occurred while the baby was being injured.
The Court also noted that reckless endangerment was a lesser charge that allowed the defendant to avoid a larger penalty because reckless endangerment was intended to punish less severe conduct. Thus, the Court found that giving the instruction did not create a substantial risk of a miscarriage of justice.
Expert Testimony
The defendant also argued that the Commonwealth’s expert witness, a pediatrician, impermissibly gave an opinion on an ultimate issue when she testified that the infant’s injuries were not accidental and could not have been caused by someone stepping on the infant. The Court rejected this argument. Expert testimony is admissible when the testimony aids the jury in making a decision because the issue is beyond the jury’s common knowledge. The Court found the pediatrician’s testimony to be helpful and appropriate. Therefore, the trial judge did not abuse his discretion by allowing the pediatrician to testify.
Dissent
The lone dissenter argued that the error in giving the instruction for reckless endangerment created a substantial risk of a miscarriage of justice because the Commonwealth presented the theory at trial that the defendant committed an assault or battery or wantonly and recklessly allowed someone else to injure the infant. Therefore, the jury was not able to focus on the elements of reckless endangerment while listening to the evidence presented at trial. The dissenter also noted that the evidence was not clear cut – it was possible that the infant was injured in a different room, which would account for the defendant not hearing the cries of the infant. Moreover, there was uncertainty over whether the infant’s injuries occurred over time.
The judgment was affirmed.
- Prepared by JM
