Com. v. Kane

• Decision Date: 07 February 1983
• Parties: COMMONWEALTH v. Peter KANE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 598

445 N.E.2d 598

388 Mass. 128

COMMONWEALTH v. Peter KANE.

Supreme Judicial Court of Massachusetts Bristol.

Argued Nov. 2, 1982.

Decided Feb. 7, 1983.

James H. Fagan, Taunton, for defendant.

Patricia O. Ellis, Asst. Dist. Atty. (Phillip L. Weiner, Asst. Dist. Atty., with her), for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, ABRAMS and NOLAN, JJ.

HENNESSEY, Chief Justice.

The defendant was convicted by a jury of murder in the second degree of a two year old boy. ¹ The defendant appealed, and now asserts error in the judge's denial of the defendant's motion for a required finding of not guilty of the charge of murder, and in the judge's permitting testimony by a priest who refused to disclose to the jury the details of a conversation which he had with the defendant, thereby unfairly prejudicing him. We transferred the appeal to this court on our own motion. We conclude that there was no error, and we affirm the judgment of conviction.

On May 15, 1980, the two year old victim was pronounced dead at Rhode Island Hospital after suffering irreversible brain damage and lapsing into a coma seven days earlier. From January, 1980, until the time of his death, the victim had lived in an apartment in North Attleborough, Massachusetts, with his brother who was three years old at the time, his mother, and the defendant, Peter Kane.

The defendant had a regular practice of going into the children's bedroom, closing the door, and thereafter repeatedly striking the boys. On such occasions loud slapping sounds could be heard followed by the children's cries. After a period of time, the defendant would emerge from the room visibly upset and shaking his hand which appeared red and swollen. Following one such incident, the defendant referred to the children as "little bastards."

The children's aunt testified that during one night in February, 1980, while she was visiting the apartment she heard the victim cry out for his mother on three separate occasions. Each time the defendant would respond by going into the child's room and closing the door. She then heard loud whacking sounds followed by his screams and cries.

During the month of March, the defendant's abuse intensified and became more focused on the victim. The defendant hit the baby hard nearly every day during the months of March, April, and early May, and on one occasion tied the child to a door with a belt. The defendant would strike him about the back, buttocks, face, and head severely enough to leave bruises.

On numerous occasions, the defendant administered marihuana to the victim, forcing the smoke into the child's mouth if the child attempted to resist. The abusive beatings by the defendant were usually brought on if the child cried for his mother, or disturbed the defendant while he was relaxing or, most often, when the child neglected to use the toilet.

During the latter part of April, as a result of a beating by the defendant, the child's right hip became swollen and he experienced difficulty walking. His mother took him to a hospital where Dr. Paul Azer noted a number of bruises on the boy's face, neck, and limbs which he estimated to be at least four or five days old, and some bruises possibly two or three weeks old. Dr. Azer's examination did not reveal any neurological damage to the child at that time, nor did the doctor observe any of the bruises which were subsequently found just before the child's death. As a result of the doctor's filing a report of suspected abuse, a social worker visited the apartment to investigate the injuries to the child. At some point following this interview, the mother told the defendant not to hit the children so hard as to leave marks because she did not want the "welfare workers" asking any more questions.

On May 6, Joann Dunn, a child welfare specialist, visited the home. Dunn testified that the child appeared drowsy and cranky but that she did not see the bruises which were present on May 8.

On the morning of May 8, the children got up about 10:30 A.M. and were fed by Mark Henderson, who was living in the apartment temporarily. This breakfast consisted of a bowl of cold cereal which, as usual, was to be the children's sole meal of the day. Henderson, who left for work about 1 P.M., testified that he did not observe the bruises which were present later that day.

In the late afternoon of May 8, the victim's mother went out to the store with another one of her sisters. Before she left she told the defendant where she was going and she then checked her son, who was on his bed. She observed her son from a distance of two and one-half feet but did not observe the bruises that were present later that day. She testified that she did not strike the child that evening. Her sister also testified that she did not observe the bruises.

The two women left the apartment about 6:15 P.M. The defendant, who was alone in the apartment with the two boys, lay down on a cot in his bedroom to get some rest. The women returned to the apartment within twenty minutes to one-half hour, and the mother went directly into her bedroom to find the defendant reclining on the cot. She shook his foot and he got up right away, which according to her was unusual. The defendant then indicated that he thought that she had come in earlier because he had heard a "thump." Thereafter, the defendant immediately followed her into the kitchen and said, "Let's go check on [the victim] and get him up for supper." The mother testified that this was also unusual behavior for the defendant. The defendant then went to the victim's bedroom and screamed for the mother, who came to the room to find the child unconscious and not breathing.

Both the defendant and the mother testified that the child was found lying on the floor in his bedroom with his arm wrapped around a hobbyhorse. While the mother attempted to give him mouth to mouth resuscitation, the defendant listened to see if the child had a heartbeat. The defendant then yelled for the sister to call an ambulance. Shortly thereafter the mother started slapping the defendant and shouted to him, "What did you do with my baby? He was all right when I left."

Emergency medical technicians arrived. Their examination of the boy revealed that he was unconscious and cyanotic with no pulse or respiration. The child's pupils were fully dilated and nonreactive to light. There was no blockage found in his mouth. However, bruises were observed on his face and hip. The baby was taken to a hospital. When the defendant arrived at the hospital and entered the room, the mother was heard to exclaim, "Don't let him near my baby. He hurt my baby." The defendant did not say anything in response.

At the hospital Dr. John Killion noted certain bruises on the boy's right forehead, left cheekbone, and on the left side of the child's body. The bruises on the boy's left side were described as fresh, while the bruises on his right forehead were considered to be older. The child was transferred to Rhode Island Hospital, where two doctors concluded that the child had suffered irreversible brain damage. He could not breathe on his own and there were no signs of brain activity. In addition, no verbal or spontaneous neurological responses to pain or other stimuli were exhibited by the child.

Dr. David Fletcher observed bruises on the boy's left cheek and left hip, as well as on the area of his back. These bruises were considered to be less than one or two days old, and possibly only two hours old. Dr. Fletcher testified that the injuries he observed were not consistent with a single fall from a bed twenty-four inches from the floor, which was the approximate height of the victim's bed.

The victim suffered cardiac arrest on May 9, and his condition deteriorated steadily to May 12, when an electroencephalograph revealed no electrical activity emanating from the child's brain. He was never removed from the respirator and, on May 15, 1980, he expired due to pulmonary edema. Forensic pathologist Dr. Arthur Burns, who served as deputy chief medical examiner for the State of Rhode Island, performed an autopsy on the body. Dr. Burns testified that death was due to acute pneumonia which was secondary to and caused by the cranial cerebral trauma which had resulted in subdural hemorrhage, cerebral edema, and subsequent coma.

The child's body, which weighed twenty-two pounds and measured thirty-two inches in length, had bruises on the right forehead, left cheek and lower lip as well as on the left shoulder and hip. In addition, Dr. Burns observed a bruise measuring two and three-quarter inches by one and one-eighth inch on the back of the boy's head.

Dr. Burns testified that the injuries incurred by the child were inflicted by a severe blunt force such as a fist, a foot, a wall, or a door, and were not consistent with a fall from a bed twenty-four inches high, nor with a single fall down a flight of stairs. Further, the doctor concluded that the injuries suffered by the child could have occurred on May 8 and that it was not possible that the hematoma occurred before that date.

At some point after the defendant was arrested he was released into the custody of one Ellen Strang who, with her husband, posted the required bail. During a conversation with Mrs. Strang on June 19, 1980, the defendant stated that "he wondered sometimes if he hadn't killed [the victim] himself and just couldn't remember because he was stoned." However, at trial, the defendant testified that he was not "stoned" on the afternoon of May 8, 1980.

1. We are not persuaded by the defendant's argument that the evidence was insufficient to sustain the verdict of guilty of murder in the second degree. He states that the judge should have directed a verdict for the defendant upon so much of the indictment as charged murder, and should have submitted for the jury's consideration only the charge of involuntary manslaughter.

Murder is the unlawful...