Com. v. Gallison

• Decision Date: 03 June 1981
• Citation: 421 N.E.2d 757,383 Mass. 659
• Parties: COMMONWEALTH v. Denise M. GALLISON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 757

421 N.E.2d 757

383 Mass. 659

COMMONWEALTH v. Denise M. GALLISON.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 3, 1981.

Decided June 3, 1981.

Patricia A. O'Neill, Boston, for defendant.

Robert M. Raciti, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

The defendant was convicted on December 18, 1978, of manslaughter, G.L. c. 265, § 13, for the death of her two-year old daughter, Jennifer, and of assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A, upon her three-year old son, Edward. The defendant was also convicted of assault and battery on Edward, G.L. c. 265, § 13A, and on two counts for failure to provide care for a minor, G.L. c. 273, § 1. She received a sentence of not more than twenty nor less than eighteen years at the Massachusetts Correctional Institution, Framingham, (MCI) on the manslaughter conviction, and a nine- to ten-year concurrent sentence on the conviction of assault and battery by means of a dangerous weapon. ¹ The convictions for assault and battery and failure to provide care for a minor resulted in concurrent sentences of two years in MCI, to be suspended for two years, but to go into effect from and after any sentence then being served or waiting to be served. She appeals from these convictions, pursuant to G.L. c. 278, §§ 33A-33G. ²

The defendant claims her motion for directed verdicts as to the indictments charging manslaughter and assault by means of a dangerous weapon was improperly denied. She argues also that the judge's charge erroneously defined manslaughter, and that his instructions to the jury improperly permitted a nonunanimous verdict. Last, she claims that failure to allow a motion to sever the indictments pertaining to Edward from those pertaining to Jennifer denied her a fair trial. We conclude that there was no error.

The Commonwealth presented evidence of the following facts. The son, Edward Gallison, Jr., was born in November, 1974. The daughter, Jennifer, was born in September, 1975. The Department of Public Welfare brought a petition for care and protection of Edward in October, 1975. Both children were eventually placed in foster homes. Jennifer was returned to the defendant's physical custody in July, 1977. Edward was returned to the defendant's physical custody in September, 1977. Edward was in good health and had no bruises or mouth damage at that time. On May 12, 1978, police officers and welfare department workers who entered the Gallison apartment found Edward alone in the apartment and bruised "from head to toe." Photographs taken that day evinced numerous bruises about the boy's body, missing front teeth and upper lip, as well as two small scars, one on each buttock, apparently caused by a lighted cigarette.

Several Commonwealth witnesses recounted the defendant's abusive treatment of Edward. One Timothy Mullins, a fellow worker of the defendant's husband, described seeing Edward when he visited the Gallisons during January and February, 1978. On one occasion he found Edward standing still as punishment in the middle of the parlor. During a later visit Mullins again observed the boy similarly standing in the parlor, this time wearing a pair of his soiled underpants over his head. The defendant explained to Mullins that she was toilet training Edward. Mullins described a third instance of seeing the defendant give Edward a "little slap" on the back of the head saying, "Get in, you little bastard," as he entered Mullins's car. Mullins had observed the deformed condition of Edward's mouth during his visits but assumed it was due to a harelip.

The Gallisons' downstairs neighbor, Mary Brown, testified that, over the period from September, 1977, to May 1978, she heard daily sounds of "hollering" and "spanking" during the hours the defendant's husband was at work. The witness heard the defendant yelling around the noon hour, "I will kill you if you don't eat." The neighbor also related that one day in early May, 1978, the defendant asked to have a cigarette and came into the neighbor's apartment for coffee. The two had coffee together each day of that week, and on one of those visits Edward accompanied his mother. The witness observed that his lip "(h)ad like a piece missing" and his face had scars and black eyes.

Police and social workers removed Edward from the apartment on May 12, 1978. He was taken to Cambridge City Hospital. Dr. Porter, the physician who examined Edward after his admission to the hospital on May 12, 1978, described him as "(a) small boy, fearful. He was covered with multiple bruises, black and blue marks over his body. Strikingly, was the finding that his upper lip was gone." The lip had been obliterated by repeated forceful blows. The doctor opined that Edward's teeth were missing as a result of blows to the mouth. Dr. Porter described Edward's buttocks as leathery, as if "struck a multiple number of times" by an object other than a hand. He further testified that two small scars which he found on each of Edward's buttocks resulted from cigarette burns inflicted perhaps two weeks earlier. Although he was three and one half years of age at the time, his size was at the fiftieth percentile of a child two and one half years of age. Noting that Edward had been born prematurely, the doctor characterized premature birth as a risk factor for abuse, but declined to state that abuse might focus on one child and not another.

When the police and social workers entered the defendant's apartment on May 12, 1978, Jennifer could not be found. They were told by the defendant's husband that Jennifer was in Texas with his parents. After further investigation, the police returned to the defendant's apartment on May 14, 1978, and placed her under arrest for manslaughter and for concealing Jennifer's body.

The Commonwealth's case as to the death of Jennifer consisted primarily of two statements which the defendant made to the Somerville police on the day of her arrest. The statements were not consistent, but she indicated Jennifer became ill in February, 1978. Jennifer was vomiting continuously and had diarrhea; her temperature on February 5 was 100o F. She described the worsening of Jennifer's illness on February 6, 1978, the day of an historically severe blizzard. The defendant said she thought the child had pneumonia when her fever rose from 101o F to 105o F by late afternoon. Jennifer continued to suffer from diarrhea and vomiting and began to shake and shiver. The apartment was unheated because of lack of oil. The defendant brought Jennifer into the kitchen, which was the warmest room. The child collapsed, fell face down, and hit her head against a wooden kitchen chair. ³ The defendant stated that the child did not cry, but was "like she was in a deep sleep." The child wasn't breathing, but the defendant found a heartbeat and attempted resuscitation. She made no calls to neighbors, doctors, or police to seek assistance. She asked her husband to help her when he came back from the store, but their efforts were futile and the child "just went." The defendant's husband laid the baby in her cot overnight. They found Jennifer "ice-cold" the next morning. The defendant and her husband then moved Jennifer's body to the back room, the coldest room in the apartment. The defendant stated that she opened the window and "blocked that room off." Jennifer's body remained in the back room for six weeks ⁴ until the defendant's husband put it into a large trash bag and placed it into a trash container on a nearby street. The defendant and her husband agreed to say only that Jennifer was away with her grandmother.

Also in her statements to the police was the defendant's account that she administered liquid aspirin to Jennifer and fed her pieces of bread to relieve the vomiting and diarrhea. She claimed she used a neighbor's phone to call Somerville Hospital when Jennifer's illness became acute on February 6, but was refused an ambulance because of the storm. The downstairs neighbor Mary Brown, whose phone the defendant had used previously, denied that the defendant had sought use of her phone at all on the evening of February 6. Employees working the Somerville Hospital emergency switchboard during the late afternoon and evening of February 6, testified that no callers were denied ambulance service because of the storm that day. One of the owners of the ambulance service covering Somerville Hospital on February 6 testified that she logged no request for an ambulance to the defendant's address.

There was no direct evidence of the condition of Jennifer's body or of the cause of death. The body was never recovered, probably having been incinerated in the regular course of rubbish disposal. The defendant stated that she had not taken Jennifer to a doctor because the clinic would not give shots without prior medical records. She denied ever beating or needing to discipline Jennifer. The only evidence of bruises on Jennifer came from the social worker, Carolyn Punch, who observed a circular bruise, a thumbprint, on Jennifer's left cheek during a home visit in September, 1977. The defendant explained to the social worker that she had inflicted the bruise inadvertently.

There was testimony that the defendant's apartment was cluttered and dirty, with empty cans, beer cans, and dishes on the kitchen table. Witnesses attested to a distinct, unpleasant odor in the apartment. Dog urine and feces littered the floor.

The defendant did not testify. Two witnesses called by the defense proffered testimony that Edward's mouth deformity resulted from dental surgery and that parental abuse might target on only one of several children.

We turn now to the various claims of error.

1. The Motion for Directed Verdicts.

a. Manslaughter. The elements of manslaughter are set forth in Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902 (19...