Commonwealth v. Roderiques

Citation78 Mass.App.Ct. 515,940 N.E.2d 1234
Decision Date31 March 2011
Docket NumberNo. 08–P–1392.,08–P–1392.
PartiesCOMMONWEALTHv.Elizabeth RODERIQUES.
CourtAppeals Court of Massachusetts

78 Mass.App.Ct. 515
940 N.E.2d 1234

COMMONWEALTH
v.
Elizabeth RODERIQUES.

No. 08–P–1392.

Appeals Court of Massachusetts, Bristol.

Argued Feb. 8, 2010.Decided Jan. 5, 2011.Review Granted March 31, 2011.


[940 N.E.2d 1235]

Colleen A. Tynan for the defendant.Kristen L. Spooner, Assistant District Attorney, for the Commonwealth.Present: McHUGH, DREBEN, & GRAHAM, JJ.McHUGH, J.

[78 Mass.App.Ct. 515] A Bristol County grand jury returned two indictments charging the defendant, Elizabeth Roderiques, with offenses that resulted in severe injuries to her infant child. The first indictment charged her with committing an assault and battery upon a child under fourteen years of age causing substantial [78 Mass.App.Ct. 516] bodily injury. See G.L. c. 265, § 13J( b ), second par. The second charged her with wantonly and recklessly permitting an assault and battery upon a child that caused the child substantial bodily injury. See G.L. c. 265, § 13J( b ), fourth par.1 At the defendant's request and with the Commonwealth's agreement, the trial judge charged the jury that reckless endangerment of a child, see G.L. c. 265, § 13L, was a lesser included offense of the offense charged in the second indictment.

After trial, a Superior Court jury acquitted the defendant of the two offenses charged in the indictments but found her guilty of reckless endangerment of a child. The defendant then filed a motion to vacate the conviction, claiming that reckless endangerment was not a lesser included offense and that the charge she had requested was erroneous and should not have been given. The judge denied the motion and the defendant appeals, asserting that (1) reckless endangerment is not a lesser included offense of wantonly or

[940 N.E.2d 1236]

recklessly permitting an assault and battery on a child causing substantial bodily injury; (2) there was no rational basis in the evidence to present the charge of wantonly or recklessly creating a risk of serious bodily injury to a child; and (3) the Commonwealth's expert impermissibly offered an opinion on an ultimate issue in the case. We affirm.

Facts. When the record is viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979), the jury could have found that, in December, 2003, the seventeen-year-old defendant lived with her boyfriend, Shawn Cambria, and her infant son in a New Bedford apartment. On the afternoon of December 23, 2003, the defendant took the baby, then seven weeks of age, to a pediatrician because he was displaying flu-like symptoms and had kept her awake throughout the previous evening with his fussiness and refusal to eat. The treating physician gave her some medication and she returned [78 Mass.App.Ct. 517] to her apartment. Apart from the flu symptoms and a small bruise on his cheek, nothing out of the ordinary about the infant was discovered during the visit.

During the night of December 23 and the early morning hours of December 24, the defendant, Cambria, and the baby were alone in the apartment. At some point, the defendant fell asleep with Cambria on a pull-out sofa in the apartment's living room. The baby was in a recliner on the floor close by the defendant's head. Several times during the night, the baby awakened the defendant with his fussing and she got up to feed and change him. At one point, the defendant was awakened by the baby, who was crying because he had lost his pacifier. The defendant asked Cambria to put the pacifier back in his mouth. Cambria complied, although he told the defendant that the baby was a “crybaby” and told the infant to “stop fussing.”

At approximately 9:00 a.m. on December 24, the defendant telephoned her father and, in an hysterical voice, told him that the infant's arm had been dislocated. The father and his girlfriend's daughter arrived at the apartment within minutes of the call and discovered the infant lying on a bed crying, with Cambria sitting beside him. The baby's arm was bent and red. They rushed him to a local hospital where he was examined and later airlifted to Boston Children's Hospital.

Before the airlift, two New Bedford police officers observed the baby and saw that he had a large red bruise on his upper right arm, a bruise on his nose, a bruise on his left cheek that extended to his left ear, and bruising on his abdomen and upper thighs. When the infant was finally examined at Children's Hospital, doctors discovered that he had suffered a fracture of the right upper arm, or humerus; multiple fractures to both legs; rib fractures; a compression fracture of the spine; and a fractured clavicle.

The infant's injuries fell into at least three distinct categories. The break in his right lower right leg was a so-called “bucket handle fracture,” produced by a forceful pulling or twisting at the end of the limb and a frequent component of what is known as shaken baby syndrome. The compression fracture to the spine was produced by a force that traveled along the spine vertically, such as the force generated when a child is slammed down on his buttocks. The remaining fractures were of general [78 Mass.App.Ct. 518] traumatic origin. All of the injuries would have required a significant amount of force and would have produced significant pain, producing an outcry from the baby and making him difficult to console.

[940 N.E.2d 1237]

2

When interviewed by the social workers and the police, the defendant first said that the baby had slept in his bassinet that night, that she fed him at 2 a.m. and 6 a.m., and that she noticed nothing out of the ordinary until she awoke up at 9 a.m. and discovered the significant bruising on his arm. Later, the defendant said that she had slept on the sofa bed with Cambria and that the infant had been in a recliner on the floor near her head. When asked by a State police investigator if she knew who had injured the baby, the defendant responded “something to the effect of ‘It wasn't me. It must have been Shawn’ ” (Cambria), who, she indicated, had been yelling at the baby that evening to stop crying and sometimes would “handle the baby a little more aggressively than appropriate.”

For his part, Cambria said that the defendant must have hurt the baby because he had not done so. However, he did say that he had been playing “air drums” with the baby on the evening of December 23, describing “air drums” as a maneuver in which he grabbed the infant's arms and waved them around in the air as if the baby were playing drums. Cambria, who claimed to suffer from periodic blackouts, also said that it was possible that he had stepped on the baby on the recliner when he got up during the evening to use the bathroom or get a drink of water, though he did not think that had happened.

Discussion. Against that backdrop, the defendant first argues that reckless endangerment of a child, an offense requiring proof that the defendant “wantonly or recklessly engage[d] in conduct that create[d] a substantial risk of serious bodily injury ... to a child or wantonly or recklessly fail[ed] to take reasonable steps to alleviate such risk where there is a duty to act,” G.L. c. 265, § 13L, inserted by St.2002, c. 322, § 2, is not a lesser included offense of G.L. c. 265, § 13J( b ), fourth par., the [78 Mass.App.Ct. 519] offense with which the defendant was actually charged in the second indictment.3

Although the Commonwealth and the defendant are sharply divided on the question, we find it unnecessary to resolve it. In our view, even if the trial judge erred in giving the instruction because § 13L is not, strictly speaking, a lesser included offense of any of the offenses set out in § 13J( b ), the defendant invited the error and no substantial risk of a miscarriage of justice arose when the judge accepted the invitation.4

We have discussed the concept of invited error in earlier decisions. In

[940 N.E.2d 1238]

Commonwealth v. Knight, 37 Mass.App.Ct. 92, 99–100, 637 N.E.2d 240 (1994), for example, we faced a claim that a manslaughter conviction should be reversed because the manslaughter instruction was flawed and, although requested by the defendant, was premised on a theory our jurisprudence did not recognize. In rejecting that claim, we explained that

“[a]s the challenged instruction was given upon the specific request of defense counsel at trial, to the extent that the issue is reviewable at all, 5 ... the defendant on appeal bears a heavy burden in attempting to have his conviction [78 Mass.App.Ct. 520] overturned. He must demonstrate at least a substantial risk of a miscarriage of justice.”

See Commonwealth v. Simcock, 31 Mass.App.Ct. 184, 196, 575 N.E.2d 1137 (1991) (“The consequences of trial tactics may not be converted after conviction into alleged errors by the judge.... The less is this so if the tactics produce some measure of success, as they did here”); Commonwealth v. Grant, 49 Mass.App.Ct. 169, 171, 727 N.E.2d 1207 (2000) (“Where the error [in giving an instruction] was invited by the defendant, our review is limited to whether a substantial risk of a miscarriage of justice occurred”). See also Commonwealth v. Vinnie, 428 Mass. 161, 180, 698 N.E.2d 896 (1998) (conviction of murder in first degree affirmed even though judge did not instruct on murder in second degree because, in part, defendant asked that instruction on murder in second degree be omitted).

Because the defendant requested the instruction she now challenges, we limit our review, in accordance with the cited cases, to determining whether the instruction, if improper, created a substantial risk of a miscarriage of justice. In approaching that question, we do not look at a theoretical case tried in some theoretical fashion on theoretical issues and ask whether a miscarriage of justice were possible. Instead, we...

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2 cases
  • Commonwealth v. Santos
    • United States
    • Appeals Court of Massachusetts
    • August 26, 2019
    ...whether there was an error that created a substantial risk of a miscarriage of justice").10 See, e.g., Commonwealth v. Roderiques, 78 Mass. App. Ct. 515, 519, 940 N.E.2d 1234 (2011), S.C., 462 Mass. 415, 968 N.E.2d 908 (2012) ; Commonwealth v. Knight, 37 Mass. App. Ct. 92, 99–100, 637 N.E.2......
  • Commonwealth v. Roderiques
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 4, 2012
    ...opinion on the ultimate issue in the case. A divided panel of the Appeals Court affirmed the conviction. Commonwealth v. Roderiques, 78 Mass.App.Ct. 515, 940 N.E.2d 1234 (2011). The court found it unnecessary to decide whether reckless endangerment of a child is a lesser included offense of......

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