Com. v. Earle

Decision Date18 November 2010
Docket NumberSJC-10655.
PartiesCOMMONWEALTH v. Margaret A. EARLE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
937 N.E.2d 42
458 Mass. 341


COMMONWEALTH
v.
Margaret A. EARLE.


SJC-10655.

Supreme Judicial Court of Massachusetts,
Plymouth.


Argued Sept. 13, 2010.
Decided Nov. 18, 2010.

937 N.E.2d 44

Michael R. Schneider, Boston, for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

COWIN, J.

458 Mass. 341

In 2005, the defendant was convicted by a Superior Court jury of murder in the second degree for the death of her twenty-one month old daughter, who died in March, 1985. We allowed the defendant's application for direct appellate review. The defendant claims on appeal that (1) the evidence of malice was legally insufficient; (2) the Superior Court judge erred in refusing to give a manslaughter instruction; (3) the prosecutor's closing arguments created a substantial risk of a miscarriage of

458 Mass. 342
justice; and (4) the judge erred in denying the defendant's motion for a new trial without a hearing. We conclude that the evidence of malice was legally insufficient to support a conviction of murder in the second degree and therefore reverse the defendant's conviction. Accordingly, we need not reach the remaining issues raised on appeal.1

1. Facts. Because this case raises a question of sufficiency of the evidence, we summarize the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), reserving a discussion of some of the details for our analysis of the issues raised on appeal.

On March 7, 1985, the victim died as a result of blunt force trauma to her abdomen that severed her small bowel, setting in motion a bacterial process that led to organ failure and death. At that time, the defendant was living in a two-bedroom apartment in Brockton with her boy friend and her cousin.

937 N.E.2d 45

Medical testimony placed the estimated time of trauma between approximately midday on March 6, 1985, and the morning of March 7.2 On the evening of March 6, the defendant's upstairs neighbor, Susan Lewis, invited the defendant to celebrate her twenty-first birthday. The defendant went to Lewis's apartment at about 9 p.m. She left the victim with her boy friend. When the defendant returned to her apartment at about 11:10 p.m., she saw her boy friend holding the victim in the bathroom because the victim was sick and vomiting; he told the defendant that the victim had begun vomiting about ten minutes earlier. The defendant saw that the sheets in the crib were stained. She cleaned the crib and put the victim back in it. The victim was then up "all night getting sick" and experiencing stomach pain.

The next morning, while it was still dark, the defendant's

458 Mass. 343
cousin awoke to the sound of the victim crying. He noticed that "[the victim's] color was way off." He observed that her skin tone was a "greenish-blue or greenish-gray," and that she was whimpering. He was concerned and informed the defendant, who was still in bed, that the victim appeared to be sick.

Sometime before 8 or 8:30 a.m., the defendant placed a telephone call to a friend, who heard the victim crying. At 9:30 a.m., the defendant received a telephone call from her sister, who heard the victim whimpering. The defendant told her sister that the victim appeared to be sick and had been vomiting a green substance; that she was listless and seemed to be in considerable pain around her abdomen; that she would react and hold her stomach when touched; and that she would whimper when picked up. At that point, the defendant heard the victim "crying, Mama," and observed her spitting up a green mucus. The defendant then changed the victim's pajamas. At some point during the morning, the defendant also changed the victim's diaper and observed "watery diarrhea."

At around 10:45 a.m., Lewis's daughter, thirteen year old Colleen Jones, went to the defendant's apartment to use the telephone. Jones observed the victim on the couch in her pajamas, faintly "moaning and groaning," and she saw that the victim had a bruise on her cheek. The defendant was on the telephone with a friend, and asked Jones to walk to that friend's house to retrieve a bottle of ginger ale for the victim. Jones did so, and brought the ginger ale to the defendant at around 11:10 or 11:25 a.m. Jones then left the apartment.

The defendant's telephone records indicate that a single, four-minute telephone call was placed from her telephone number to the victim's doctor's office, at noon. There was evidence at trial that the defendant had told both her sister and one of her friends, during calls prior to noon, that she had already spoken to the doctor's office and had been told that it sounded as if the victim had "the flu."

At around noon, Jones saw the defendant in the hall. The defendant asked Jones to babysit the victim at an unspecified time that day so that the defendant could go to a local drug store. Jones returned to the defendant's apartment at around 2 p.m. with a friend to babysit, and

937 N.E.2d 46
observed that the victim was still on the
458 Mass. 344
couch and did not appear to have moved since Jones had last seen her. Jones observed that the victim's face had a yellow discoloration, and that she had a cut on her upper lip and a bruise on her cheek.3

After the defendant left for the drugstore, Jones heard the victim "moaning and groaning," and at one point noticed that the victim had vomited a thick yellow substance. Approximately thirty minutes after the defendant left, Jones observed that the victim was quiet. Jones rolled her onto her back and a "yellowish green" substance came from the victim's mouth. Jones saw that the victim was not breathing and screamed for her mother, Lewis, who was in the upstairs apartment. Lewis arrived, performed mouth-to-mouth resuscitation, and had her daughter telephone 911. Lewis observed that the victim was "[y]ellowish" in color, had a cut on her lip, and was bruised.

Officer Ricardo Froio of the Brockton police department arrived at the victim's apartment soon after 2:42 p.m. and performed cardiopulmonary resuscitation on her.4 He observed that her stomach was distended and swollen. Detective Thomas Enos entered the apartment at the same time as Officer Froio and saw that the victim's skin was waxy and discolored, that she had a cut and bruising around her lip, and that she had either cuts or bruises on her cheek and forehead. He also noticed that her stomach was swollen and very hard. Officer Gail Bowers also arrived at about the same time and saw "lividity ... on the bottom" of the victim, a bruise on her left temple, and black and blue marks on the lower part of her body.

The forensic pathologist who performed the autopsy a few hours after the victim was pronounced dead noted contusions of the left forehead, left eye, and chin; three contusions of the right cheek; an abrasion of the upper lip; contusions of the left shoulder, of the right flank, and just above the navel; three "abrasion contusions" of the right middle back; and a bruise of the left thigh. All the bruising was from before the victim's

458 Mass. 345
death. The pediatrician who saw the victim when she arrived at the emergency room observed a similar set of bruises, and also recalled bruises on the victim's left wrist and the left side of her abdomen. He stated that all the bruising was from "within a twenty-four hour period" of her death.5

The pathologist also testified that the victim's stomach was noticeably distended, and that there was a great deal of resistance when it was palpated. The emergency room physician likewise observed that the abdomen was "quite bloated" and rigid to the touch. In his internal examination, the pathologist noted two fractured ribs and internal hemorrhaging, and discovered a transection of the small bowel that caused peritonitis and, ultimately, the victim's death.

Medical testimony established the symptoms that would typically be observed in a child suffering from peritonitis as a result

937 N.E.2d 47
of a severed intestine. Initially, the child would experience pain and fever, would refuse to eat, and would likely vomit. Over time, the child's abdomen would start to distend and the child would refuse to walk because of the pain it would cause. With the progression of peritonitis, the child might assume a fetal position to take pressure off the abdomen, and the child would move around less to avoid painful muscle contractions. The pain would be "excruciating," and as it might hurt to cry, the child might moan or whimper. Over time, the fever would grow more severe, and the child might become lethargic, experience loss of sensorium, and perhaps have hallucinations. This deterioration would be gradual.

The distention of the child's abdomen would also be gradual. The emergency room physician testified that he would expect the process leading to distention to begin within four to six hours of injury, with the abdomen becoming clearly distended by twelve hours. The medical examiner testified that the abdomen would probably be "board-like" within nine hours of the injury.

Years after the victim's death, in December of 1995, the defendant's boy friend told his then wife that on March 6, 1985, he had thrown the victim down and stomped on her stomach

458 Mass. 346
twice; each time he stomped on the child, he had "squished and squished" her.6

2. Discussion. As noted, in challenges to the sufficiency of the evidence introduced at trial, we review the evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). Evidence is sufficient to reach the jury, and a motion for a required finding of not guilty is properly denied, where the evidence, viewed in its light most favorable to the Commonwealth and drawing all inferences in favor of the Commonwealth, would permit a rational jury to find each essential element of the crime beyond a reasonable doubt. Id. The...

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