Commonwealth v. Epps

• Decision Date: 14 July 2016
• Docket Number: SJC–11921.
• Citation: 474 Mass. 743,53 N.E.3d 1247
• Parties: COMMONWEALTH v. Derick EPPS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

474 Mass. 743

53 N.E.3d 1247

COMMONWEALTH

v.Derick EPPS.

SJC–11921.

Supreme Judicial Court of Massachusetts, Essex.

Submitted Dec. 7, 2015.

Decided July 14, 2016.

David Hirsch for the defendant.

David F. O'Sullivan, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Seth Miller, of Florida, Katherine H. Judson, of Wisconsin, Adam W. Deitch & Lindsay A. Olson, of New York, & Mark W. Batten, Boston, for The Innocence Network.

Heather Kirkwood, of Washington, & David E. Meier, Boston, for David Ayoub & others.

Matthew R. Segal, Dennis Shedd, & Chauncey B. Wood, Boston, for Committee for Public Counsel Services & others.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, & HINES, JJ.

GANTS, C.J.

The defendant was convicted by a Superior Court jury of assault and battery on a child causing substantial bodily injury, in violation of G.L. c. 265, § 13J (b ). The prosecution contended that the defendant violently shook the two year old child in his care based on medical testimony that the child was diagnosed with traumatic brain injury, and scans of her brain that showed retinal hemorrhages, subdural hematoma, and brain swelling, the three symptoms known as “the triad” associated with shaken baby syndrome. The defendant, when interviewed by the police, denied having injured the child and reported that, hours before the child's grievous injuries became manifest, she had fallen down the wooden stairs in her home and had later fallen off a kitchen stool, leaving a bump on her forehead. The Commonwealth's medical expert offered the opinion that injuries of the type and severity suffered by the child could not have been caused by the short falls described by the defendant. The defendant called no expert to offer an opinion to the contrary.

In Commonwealth v. Millien, 474 Mass. 417, 418, 50 N.E.3d 808 (2016), we noted that “[t]here is a heated debate in the medical community as to whether a violent shaking of a baby alone can generate enough force to cause the triad of symptoms of traumatic brain injury, and as to whether these symptoms can sometimes be caused by a short accidental fall.” We conclude that, in the unusual circumstances of this case, the absence of expert testimony that the child's injuries might have been caused by her accidental falls deprived the defendant of an available, substantial ground of defense, and thereby created a substantial risk of a miscarriage of justice. We therefore reverse the judge's denial of the defendant's motion for a new trial, vacate the conviction, and remand the case to the Superior Court for a new trial.¹

Background. 1. Evidence at trial. We summarize the evidence presented at trial in July, 2007. On October 9, 2004, Sara Comeau left for work early in the morning, leaving her two children, Veronica, age two, and Delilah, age four, in the care of the defendant, who was her live-in boy friend.² The two girls were still asleep in their bedroom; the defendant was awake but still in bed.

The defendant told the police during two interviews on October 10 that, after Comeau left for work, Veronica woke up and he brought her into the bed with him. After one to two hours both woke up and the defendant sent Veronica downstairs by herself while he went to use the bathroom. He then heard Veronica cry and found her at the bottom of the stairs; based on what he saw and heard, it seemed that she had fallen down two or three wooden stairs. Veronica told him that she was all right. Veronica then sat on a stool in the kitchen eating cereal while the defendant played a video game. Veronica tried to get down from the stool by herself and fell.³ He found her on the floor, picked her up, and saw a small red mark on the left side of her forehead. She cried briefly but then said that she was okay. The defendant gave her juice and sat her on the couch, where she then started coughing and vomited. The defendant cleaned up the vomit and gave her a bath. Later, Veronica vomited again when she was upstairs.⁴

The defendant's friend, Jason Fletcher, arrived later that morning. When he arrived, the defendant told Fletcher that Veronica had fallen off the stool and Fletcher saw “a bump” above her left eye. The defendant and Fletcher played a football video game downstairs while the children played upstairs. At around noon, Comeau returned home on her lunch break and found the defendant in the living room with Fletcher, sitting on the couch and playing the football video game. Veronica was wearing pull-up underpants and a T-shirt, which was the same T-shirt Comeau had dressed her in when Comeau put her to bed the night before. Comeau saw that Veronica had a red, dime-sized mark on her forehead. Comeau asked the defendant what had happened, and he told her that Veronica had fallen off the stool while she was eating breakfast. She and the defendant then got into an argument about neither child being fully dressed. Before returning to work, Comeau went upstairs and dressed Veronica in pants and a T-shirt. During this time, Veronica said to her, “Mommy, I hit my head.” According to Comeau, Veronica was not acting unusual at this time.

After Comeau returned to work, the defendant and Fletcher continued playing the video game downstairs while the girls were playing upstairs. The defendant told the police during his interviews that, shortly after Comeau left, while he and Fletcher were playing the video game, he heard a “boom” from upstairs. He initially thought that it was the children jumping around to music, but then Delilah ran to the top of the stairs and yelled to the defendant that Veronica had fallen. The defendant stated that he went upstairs and found Veronica lying on her back with “her eyes ... almost going in the back of her head.” He began to give her cardiopulmonary resuscitation (CPR). She was limp and gurgling, and her stomach expanded and her arms flared up each time he breathed into her mouth. Her fingers were “like knots,” and her body stiffened as if she were having a seizure. He panicked and yelled for Fletcher. Fletcher came upstairs, and the defendant sent him to get Comeau from her work. The defendant told the police that, when his attempts at CPR failed, he tried to put a toothbrush in her mouth to create an airway.

At trial, Fletcher testified that, while he was playing the football video game downstairs with the defendant, Delilah yelled from upstairs that Veronica had fallen. The defendant went upstairs while Fletcher played four downs of the football video game.⁵ While the defendant was upstairs, Fletcher did not hear any “bangs,” “shouts,” or “noises.” Because the defendant had not returned, Fletcher went upstairs “to see what was going on.”⁶ He then saw Veronica lying unconscious on a mattress in the girls' bedroom and the defendant giving her mouth-to-mouth resuscitation. The defendant sent him to get Comeau, and he drove to the nursing home where she worked.

Comeau drove home immediately when she learned about Veronica's condition and saw Veronica on the couch in the living room with the defendant leaning over her. Veronica had a large lump on her head, which Comeau testified was “red and purple/black” in color. The defendant was attempting to administer CPR, but Comeau screamed and told him to stop because Veronica's stomach was raised and “she had too much air in her.” Comeau asked the defendant what had happened, and he told her that Veronica had fallen down the stairs. Comeau telephoned 911, and the emergency medical technicians arrived. Fire fighter and emergency medical technician Robert Irvin said that Veronica was having difficulty breathing, her eyes were rolling back, and she was sweating profusely. According to Irvin, she had a “bang” on her head, a black eye, a small bang on her nose, and a red line across her chest, which, he said, looked “as if the child had leaned up against a chair or a table.”

A neighbor, Karen Grober, saw the fire trucks and ambulance and went outside to see what was going on. Grober testified that the defendant appeared “upset” and “worried.” Grober asked him what had happened, and he said that he did not know, that he heard a big thump from upstairs, and that when he went upstairs Veronica was on the floor, with her eyes rolling back.

Comeau followed Veronica to Lawrence General Hospital in a separate ambulance. When they arrived, Comeau saw a red mark under Veronica's ribs that had not been there when Comeau had dressed her at lunchtime. Comeau also saw red marks on the inside of both of her knees. Once the defendant arrived at the hospital, he told Comeau that Veronica had fallen down the stairs and had fallen off the breakfast stool, and that Delilah had yelled at the top of the stairs that Veronica had fallen a third time.

At Lawrence General Hospital, medical professionals intubated Veronica to assist her breathing and took several X-rays, including a head computerized tomography (CT) scan. She was eventually “med-flighted” to Boston Children's Hospital, where she arrived unresponsive and was displaying “posturing,” which is an upper motor neuron sign signaling injury to the brain. She was placed in the pediatric intensive care unit. The head CT scan revealed a significant amount of swelling on the left side of Veronica's brain, as well as bleeding in the subdural space and the subarachnoid space. The swelling was such that the left side of the brain was extending over and encroaching into the right side of the brain, a condition known in the medical community as a midline shift. A craniotomy surgery was performed to help relieve the swelling and to help drain some of the blood that had collected.

Dr. Celeste Wilson, a board-certified pediatrician and child abuse specialist, examined Veronica and found that her left pupil was fixed and dilated, and her right pupil was very sluggishly reactive to light. Although she was not an ophthalmologist, Dr. Wilson examined Veronica's eyes and found bleeding in the...