Com. v. Avellar

• Decision Date: 12 November 1993
• Citation: 622 N.E.2d 625,416 Mass. 409
• Parties: COMMONWEALTH v. Eric A. AVELLAR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 625

622 N.E.2d 625

416 Mass. 409

COMMONWEALTH v. Eric A. AVELLAR.

Supreme Judicial Court of Massachusetts Bristol.

Argued May 5, 1993.

Decided Nov. 12, 1993.

Wendy Sibbison, Greenfield, for defendant.

Cynthia A. Vincent, Asst. Dist. Atty., for the Com.

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

O'CONNOR, Justice.

A jury found the defendant guilty of the murder in the first degree of his infant son Shawn based on extreme atrocity or cruelty. The judge sentenced the defendant to life in prison, and the defendant appeals. ¹ The defendant makes the following arguments: (1) "Since the evidence required the jury to speculate as to when the fatal blow was delivered and as to who delivered it, [the defendant] is entitled to an acquittal"; (2) "The admission [in evidence] of Dr. [Robert] Korn's opinion that [the defendant] killed Shawn, based on groundless 'profile' evidence, created a substantial risk of a miscarriage of justice"; (3) "The trial judge erred in permitting the Commonwealth to introduce evidence that [the defendant] wanted Laura Courtney [Shawn's mother] to have an abortion as probative of [the defendant's] 'attitude toward the child' "; (4) "The prosecutor improperly elicited previously stricken hearsay opinion evidence and prejudicial vouching evidence"; (5) "The trial judge erred in failing to give any instruction on consciousness of guilt and in giving harmful, erroneous instructions on malice"; (6) "The cumulative effect of the above errors requires reversal"; and (7) "The evidence was insufficient to support the jury's verdict of murder committed with extreme atrocity or cruelty; and, even if minimally sufficient, the thrust of the evidence calls for [a new trial or] reduction to second degree murder." We conclude that there was no reversible error and we are not persuaded that justice requires a verdict of less than murder in the first degree. Therefore, we affirm the judgment.

The defendant's first argument raises the question whether the evidence was sufficient as a matter of law to warrant a finding that the defendant, not someone else, caused the injuries that resulted in Shawn's death. We must determine whether, if the jury believed the evidence most favorable to the prosecution bearing on that question, they would have been warranted in inferring beyond a reasonable doubt that the defendant caused the fatal injuries. Berry v. Commonwealth, 393 Mass. 793, 795-796, 473 N.E.2d 1115 (1985). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). The record contains the following trial evidence. Laura Courtney became involved in an affair with the defendant in July, 1988. Both were married but separated from their spouses. After Courtney became pregnant, the defendant told her he wanted her to abort the baby, explaining, among other things, that his divorce was not yet final and he was already paying support for his son. Courtney did not have an abortion and for the remainder of her pregnancy saw little of the defendant. The baby, Shawn, was born April 11, 1989. Several weeks later, following Courtney's request, the defendant went to Courtney's house to see Shawn. A few weeks later the defendant again visited Shawn and then visited him "a couple times a month" during the next several months. The defendant babysat for Shawn three or four times. After one such occasion, Shawn had "a little mark on the side of his eye." The defendant explained that Shawn had rolled off the couch.

Shawn's pediatrician testified that, during three routine office visits, the child's physical examinations were normal, with proper growth and development. The doctor never detected any injuries or bruises on the child. In addition to the routine visits, the doctor also consulted once by telephone with Courtney in late August, when he prescribed over-the-counter medication for an upper respiratory infection.

Shawn was pronounced dead at the hospital October 6, 1989, at 7:23 A.M. Shawn had spent much of the previous day, October 5, with Courtney and her neighbor, Lori Cote at Cote's apartment. Shawn appeared to be a happy baby that day. "He smiled, laughed." He was getting over a cold. Beginning at 4:30 P.M., Cote's brother and his girlfriend, Amie Fontaine, babysat Shawn while Courtney and Cote purchased beer at a package store. After their return, Courtney fed Shawn at 6:30 P.M., and then Courtney and Cote went to visit Courtney's cousin, Paul, while Fontaine babysat for Shawn as he slept. While at Paul's house, Courtney telephoned the defendant and, as a result, the defendant came to Paul's house. Shortly thereafter, Courtney and the defendant returned to Courtney's apartment, which Courtney then left to go to Cote's apartment to retrieve Shawn. It was then about 9 P.M. Shawn was sleeping at Cote's apartment and Courtney woke him up. She did not have "any problems" waking him up and he smiled at her. Fontaine testified that she did not "do anything to [Shawn] that night," and she did not see anyone strike or injure him in any way.

Courtney returned to her apartment with Shawn. The defendant offered to babysit while Courtney and Cote went to a local bar. As Courtney was getting ready to leave, the defendant's friend, Tracey Payne, came to visit the defendant. Payne testified that he was at Courtney's apartment for about one-half hour with the defendant and Shawn and that Courtney was there part of the time. Payne remembered Shawn being put to bed before Courtney left, but he did not remember who did that. He was sure that Shawn was not on the couch when Courtney left. Payne did not touch Shawn.

At 11:30 P.M., October 5, Courtney called the defendant to check on Shawn. The defendant told her that Shawn "fell off the couch, but he's all right" and he "put him to bed." When Courtney returned home at 12:30 A.M., October 6, the defendant was asleep on the couch. She checked on the baby from the doorway of his room and woke up the defendant. After she and the defendant went to bed together, she wanted to discuss their relationship. As the defendant did not want to have this discussion, he fell asleep. She then got out of bed and went to the kitchen, where she wrote him a love note.

The alarm awoke them at 5:30 A.M. and the defendant arose, without speaking, ten or fifteen minutes later. Fifteen minutes after the defendant arose, Courtney heard him say to Shawn, "I have to change your diaper, and you have to go to the doctor's." She then heard Shawn make a "weird noise," as if gasping for air. The apartment was quiet for the next fifteen minutes or so. According to Courtney, the defendant left for work at approximately 6:45 A.M. When the defendant left, Courtney got out of bed and observed the defendant leaving the building.

She then went to check on Shawn, who appeared to be sleeping. After he did not respond to his name, she touched his hands, which were cold. When she picked him up, Shawn was limp, had half-closed eyes, and appeared not to be breathing. She brought him into the living room, set him on the couch, dialed 911, and attempted to resuscitate him. When the rescue team arrived, Courtney was hysterical. The emergency medical technician noted that Shawn had a pulse but appeared in respiratory distress. While being transported to the hospital, Shawn stopped breathing, and then his heart stopped. The hospital's efforts at resuscitation were unsuccessful, and Shawn was pronounced dead at 7:23 A.M. Dr. Korn, the emergency room physician who first examined Shawn, found a bulging fontanel (the soft spot on a baby's head) and several bruises on the face and hands. He also observed retinal hemorrhages in back of Shawn's eyes that were bright red, implying that the injury to the head was "relatively new." His initial diagnosis was "child abuse and death due to head trauma."

Dr. John C. DuVally performed an autopsy and concluded that the cause of Shawn's death was a "[m]assive skull fracture with bleeding due to head trauma." Dr. DuVally explained that death likely occurred when the injured brain expanded and pushed down on the brain stem. His examination of Shawn further revealed several faint superficial bruises on his head, chest, and back; a ruptured frenulum (the web of skin between the upper lip and the upper gum); three fractured ribs; and blood in the pleural and abdominal cavities. He was unable to form an opinion as to the amount or nature of the force necessary to cause the fracture, but he concluded that the injuries were consistent with "[s]ome sort of force being applied to the back of the head." He further concluded that the injuries were not consistent with "shaken baby syndrome" or a fall from a two or three foot couch.

Of critical importance to our conclusion that the evidence warranted a finding that the defendant inflicted the injuries that resulted in Shawn's death is Dr. DuVally's testimony concerning the period within which, in his opinion, the injuries occurred. He testified that, as part of the autopsy procedure, "sections are taken of a number of the bruises that [he had] described; also, what amounts to routine sections. They're called the heart, lung, spleen, kidneys, adrenal, and so forth. The sections of the bruises were very recent. There was hemorrhage into the fat. [He could not] date them or time them exactly, but [he] would say certainly less than twelve hours." Dr. DuVally also characterized various other hemorrhages as "very recent" and when asked whether he could "give an outside time as to the length of the process" by which the massive skull fracture would have resulted in Shawn's death, he answered, "I'd say less than twelve hours is the best I could do; and, again, these are estimates." In response to the question, "Would that be twelve hours from the injury to the time of death," Dr. DuVally said, "Yes. Anywhere within ... twelve hours. It could be much shorter."

Finally, the following questions addressed to...