Com. v. O'Brien

• Decision Date: 10 February 1995
• Parties: COMMONWEALTH v. Robert O'BRIEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1170

645 N.E.2d 1170

419 Mass. 470

COMMONWEALTH v. Robert O'BRIEN.

Supreme Judicial Court of Massachusetts,

Middlesex.

Submitted Oct. 6, 1994.

Decided Feb. 10, 1995.

Robert L. Sheketoff, Boston, for defendant.

Michael Adam Chinman, Asst. Dist. Atty., for Commonwealth.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

The defendant was indicted on a charge of murder in the first degree. After a jury trial, the defendant was convicted, on March 29, 1989, of the lesser crime of involuntary manslaughter and was sentenced to from nineteen to twenty years at the Massachusetts Correctional Institution at Cedar Junction. The defendant filed a timely notice of appeal. The Appeals Court, in an unreported decision pursuant to its Rule 1:28, affirmed the conviction. 36 Mass.App.Ct. 1104, 629 N.E.2d 1016 (1994). We granted the defendant's application for further appellate review. The defendant argues that the trial judge erred in (1) refusing his request to recross-examine the victim's mother, Carol Shanahan and (2) prohibiting his inspection of a document used by the prosecution to refresh the recollection of Carol Shanahan on the witness stand. We find no reversible error. We affirm the conviction.

The jury were presented with sufficient evidence to find the following facts. Late in the evening of October 3, 1987, Sean Patrick Shanahan, a five-month old infant, was found dead in his crib at his mother's Somerville apartment. There were no external injuries to Sean's body except a small (one-eighth inch) abrasion on the right side of his nose. An autopsy revealed that Sean died as a result of blunt head trauma.

When initially questioned by police, the defendant, the live-in boy friend of Sean's mother, denied involvement in the child's death. However, when he was informed of the results of the autopsy, the defendant gave two separate statements admitting involvement in Sean's death. In both statements he claimed that he had accidently dropped the child during the day on October 2, but the statements differed as to how the accident occurred. ¹

Carol Shanahan had had three children prior to Sean's death. The two older children, Justin, four years old in October, 1987, and Julia, two years old in October, 1987, were fathered by the defendant, with whom Carol had had an intermittent relationship since she was fourteen years old. Prior to Sean's birth in April of 1987, Carol and the defendant had not lived together for some time. ²

In August of 1987, when Sean was about four months old, the defendant and Carol Shanahan resumed their relationship and the defendant began living with Shanahan and her three children in her apartment in Somerville. Evidence admitted at trial tended to show that the defendant had been abusive toward Sean on a few occasions between the time that he moved into the apartment and the child's death. Carol Shanahan and her neighbor, Selena Gonzalez, both testified about an incident in which the defendant put Sean in a closet and shut the door because he was crying. Carol Shanahan also testified that one day she noticed that the child had a black eye but it was not clear whether the defendant had caused the injury. There was evidence that the defendant yelled at Sean when he cried and would sometimes shake the baby while holding him by his sides.

On October 2, 1987, Shanahan left for work at about 8 A.M., leaving the three children at home with the defendant. Just before 3 P.M. she left work and went home. Taking Justin with her, she went to her mother's house in Charlestown. She stayed at her mother's for about twenty minutes and returned to her apartment with Justin and her eight-year old sister, Darlene. They arrived at approximately 4 P.M. While Shanahan was preparing dinner, Sean woke up and she fed him. She testified he appeared normal although he had a runny nose. After feeding Sean, she put him back to bed. After dinner Shanahan left the apartment to buy some marihuana at the housing project across the street. When she left, Justin and Julia were in their bedroom playing, and Sean was sleeping in his crib. The defendant and Darlene were otherwise alone. Shanahan testified that she was gone about fifteen minutes.

Darlene, almost ten years old at the time of trial, testified that after Shanahan left Sean began to cry. The defendant went into Sean's room and came out carrying the baby. The defendant carried Sean into the kitchen and Sean vomited on the defendant's shoulder. Darlene testified that the defendant got a "mean" look on his face and threw Sean up in the air over his head. The defendant bent down to try to catch Sean but he was unsuccessful and Sean hit the floor, making a "loud noise" when he landed. Sean began to cry and the defendant picked him up. Darlene testified that as the defendant was carrying Sean back to his room he turned to Darlene and told her to "swear to God on Sean's soul that you won't tell anyone" or he would "get someone after [her]." The defendant put Sean back in his crib, and then sat down and watched television with Darlene until Shanahan returned. At no time did the defendant seek medical assistance for Sean.

Shanahan testified that after she returned from purchasing the marihuana the defendant's behavior changed. He said that he accepted Sean as his own child and wanted to marry her. Shanahan also testified that Darlene seemed particularly quiet. Later that evening Sean woke up and Shanahan noticed that he looked as though he had a cold; his face was puffy, his eyes were runny, and he was wheezing. She attempted to feed him but he would not eat. The next morning, October 3, Sean again appeared as if he had a cold so Shanahan left him in his crib. Shanahan's mother came over in the afternoon and looked at Sean. She testified at trial that she thought Sean looked sick. Sean remained in his crib for the rest of the day and Shanahan did not check on him again. Her neighbor, Selena Gonzalez, watched the children for a time in the afternoon.

Late that evening the defendant, Shanahan, and Selena Gonzalez decided to look in on Sean. The defendant quickly rose from his seat and entered the child's room. He came out seconds later with a look of shock on his face. He pointed to Sean's room and then ran out of the apartment. Gonzalez and Carol then went into the room and discovered that the child was dead.

1. Denial of recross-examination. The defendant asserts that it was his strategy at trial to impeach the testimony of Darlene and thereby establish that the head injury occurred as the result of an accident earlier on October 2 as claimed by the defendant. In order to argue successfully this theory, the defendant claims he had to show that there were symptoms of the head injury prior to the time that Darlene claims Shanahan left the apartment to buy marihuana. The defendant claims that the "cold" symptoms observed by Shanahan and other witnesses were actually symptoms of a head injury. Therefore, the defendant argues, the issue of when Sean's "cold" symptoms appeared was crucial to the defense. ³

Under cross-examination, Carol Shanahan testified, consistent with her testimony on direct examination, that she did not see Sean on October 2, 1987, from the time she left for work in the morning until around dinner time. When she saw him, Sean appeared to have a runny nose but exhibited no other cold symptoms. Defense counsel asked Shanahan whether she remembered making a statement to the police shortly after Sean's death in which she stated that when she got home with Darlene in the afternoon the two of them looked in on Sean and that he appeared to have a cold, and that he was wheezing and gasping and sounded hoarse. Shanahan testified that, while she remembered making a statement to the police, she could not remember stating that she checked on Sean in the afternoon or that he had appeared to have had a cold at that time. On being shown her written statement to police made following Sean's death, Shanahan repeated that she could not recall stating she had checked on Sean in the afternoon.

On redirect examination, the prosecutor elicited testimony from Shanahan explaining that she was in an upset state on October 7 when she gave the statement because Sean's funeral had been the day before. On recross-examination, defense counsel attempted to ask Shanahan about a second statement she made some time after the October 7 statement, in preparation for trial. On the prosecutor's objection and the court's suggestion that the second statement was beyond the scope of redirect examination, defense counsel argued that the statement was within the scope of redirect because it impeached Shanahan's explanation as to why her October 7 statement was inconsistent with her trial testimony. The judge sustained the prosecution's objection. The judge precluded defense counsel from asking Shanahan about the contents of the second statement, which was not in evidence, ruling that it did not address a new matter raised on redirect.

The defendant argues that his right to confrontation under the Federal and Massachusetts Constitutions was violated when the judge denied his request to recross-examine Carol Shanahan regarding the second statement. We conclude that the judge acted within his sound discretion in ruling that the matter on which the defendant sought to examine Shanahan was not a new matter raised for the first time on redirect examination of the witness. Therefore, the defendant had no right to recross-examine her on the statement as it was beyond the scope of redirect examination.

The confrontation clause of the Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution guarantee a defendant the right to cross-examine each witness against him. This right to cross-examination is an essential component to the right to a fair trial....