Com. v. Macey

• Decision Date: 28 May 1999
• Docket Number: No. 97-P-1491,97-P-1491
• Citation: Com. v. Macey, 710 N.E.2d 1017, 47 Mass.App.Ct. 42 (Mass. App. 1999)
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Maria MACEY.

Page 1017

710 N.E.2d 1017

47 Mass.App.Ct. 42

COMMONWEALTH v.Maria MACEY.

No. 97-P-1491.

Appeals Court of Massachusetts Hampden.

Argued Dec. 4, 1998.

Decided May 28, 1999.

William T. Walsh, Jr., for the defendant.

Jane Davidson Montori, Assistant District Attorney(Elizabeth G. Dineen, Assistant District Attorney, with her) for the Commonwealth.

Present: BROWN, PORADA, & GREENBERG, JJ.

BROWN, J.

The defendant appeals from her conviction of an assault and battery upon a child (i.e., a person under fourteen years of age) that causes substantial bodily injury.¹SeeG.L. c. 265, § 13J.The child victim was one of the defendant's twin sons, Justin Macey.

No reversible error has been made to appear.We treat the various issues raised on appeal in turn.We will focus only on such facts as are relevant to the analysis of the legal issues presented.

1.Scienter requirement.The defendant contends that § 13J of c. 265 violates her due process rights protected by art. 1, 10, and 12 of the Massachusetts Declaration of Rights because § 13J does not require scienter as an element of the offense.Section 13J prescribes the penalty for assault and battery causing "substantial bodily injury" to a child, but is silent regarding a definition of the crime itself.²

The defendant's argument that § 13J is unconstitutional because it lacks a requirement of "scienter" misses the mark.The scienter element is supplied by resort to the common law and is satisfied by proof that the defendant acted either intentionally or in a wanton or reckless manner.

"The Massachusetts statutes that advert to conduct involving assault ... only set forth punishments and do not define the crimes....By resort to the common law, our courts have recognized two categories of assault...."Commonwealth v. Musgrave, 38 Mass.App.Ct. 519, 521, 649 N.E.2d 784(1995), S. C., 421 Mass. 610, 659 N.E.2d 284(1996)."The classic definition of assault and battery is 'the intentional and unjustified use of force upon the person of another, however slight.' "Commonwealth v. Welch, 16 Mass.App.Ct. 271, 274, 450 N.E.2d 1100(1983), quoting fromCommonwealth v. McCan, 277 Mass. 199, 203, 178 N.E. 633(1931)."The law recognizes, however, an alternative form of assault and battery in which proof of a wilful, wanton and reckless act which results in personal injury to another substitutes for (or in some cases is said, with some imprecision, to allow the 'inference' of) intentional conduct."Commonwealth v. Welch, supra."[T]here is no basis for interpreting 'assault and battery' in G.L. c. 265, § 13J, in a manner different from the interpretation applicable to 'assault and battery' under G.L. c. 265, § 13A."Commonwealth v. Cabral, 46 Mass.App.Ct. 917, 918, 706 N.E.2d 314(1999).

The judge's instructions included all the elements that the Commonwealth must prove beyond a reasonable doubt under the intentional conduct theory.³Moreover, the jury were not left to convict the defendant of assault and battery under the first definition, "which requires a finding that the touching or use of force was intentional,"Commonwealth v. Moore, 36 Mass.App.Ct. 455, 459, 632 N.E.2d 1234(1994), because here the judge instructed the jury on the alternative theory of assault and battery.⁴We discern no basis upon which to reverse the defendant's conviction in this regard.

2.Sufficiency of the evidence.(a)The defendant contends that the denial of her motion for a required finding of not guilty was error.We disagree, as there was sufficient evidence, albeit much of it circumstantial, ⁵ adduced to prove beyond a reasonable doubt that the defendant committed a criminal assault and battery.See and compareCommonwealth v. Roman, 427 Mass. 1006, 1007, 694 N.E.2d 860(1998).

We briefly summarize the relevant evidence.The defendant denied shaking the baby in a written statement taken by Trooper John Murphy on November 17, 1995.Trooper Murphy testified that the defendant told him that the only possible causes of Justin's (a twin) injuries were from her daughter, Michelle, who was somewhat jealous of the twins' birth; from the battery-operated swing that the baby had been in; or from her husband, Christopher.Trooper Murphy testified that when he had asked the defendant if at any point the baby had fallen from her arms, off of anything, or down the stairs, she had answered no.

The defendant's husband testified that he told the State troopers that his daughter may have been responsible for the baby's injuries.

The expert medical testimony was conflicting regarding whether the defendant's seven year old daughter, Michelle, would have been capable of inflicting the injuries sustained by the victim.On direct examination by the prosecutor, Dr. Steve Lieberman expressed the opinion that a seven year old child who was approximately four feet tall weighing approximately fifty pounds could not shake a six-week old baby that weighed six pounds violently enough to cause the type of injuries suffered by the victim.On cross-examination the same expert admitted that in his grand jury testimony he had stated the opinion that the girl could not have shaken the victim because one of the factors that he took into consideration was that "the baby weighed ten or eleven pounds," in fact, the victim actually weighed under six pounds.⁶The doctor admitted that he did not know for certain whether or not the young girl could have done it.

The defendant's husband, Christopher, spent time alone with the baby on the day the baby was injured.He testified that when he left home on November 16, 1995, the day of the incident, Justin had "rosy cheeks" and very wide eyes, that he would "look around a lot, side to side," that he was warm, and that he was "just like any other baby, cries and whimpers every once in awhile."Christopher testified that the baby looked normal when he left to go to work that morning at ten after six.

He further testified that when he arrived home around 4 P.M. the defendant was on the phone.When she got off the phone, she told him that Justin had not taken his last feeding around eleven and that he had not eaten the entire afternoon.Christopher proceeded to pick up and feed Justin.Christopher testified that "when [he] fed him, [the baby] took the bottle a little slower at first than normally" and that he"had to coax him [Justin] a little bit just to get him to take the bottle but he did eventually take it."At that time Christopher noticed that "he[the baby] was cold and he was ... kind of pale, a whitish color....His eyes were glossy and I noticed he wasn't blinking like he normally would."

Christopher was left alone feeding Justin when the defendant left the house for ten minutes to pick up their daughter at the Boys and Girls Club.The Boys and Girls Club was a place where Michelle went on a daily basis after school.Christopher wrapped Justin in a blanket and put a hat on him because the baby was cold; then, Christopher "picked [James, the other twin] up and played with him for a little while."

According to Christopher, around 6:30 that evening, the defendant left to go to the grocery store and stayed out about three or four hours.During the time that the defendant was out, Christopher left the twins upstairs in the duplex with their seven year old sister, Michelle, for a short period.Christopher went downstairs to play his guitar.Christopher answered in the negative when asked, on cross-examination, whether he was worried about leaving Michelle with the twins when he went downstairs even though he had testified that his daughter had a temper.Christopher answered affirmatively when asked, also on cross-examination, whether his daughter was jealous of the twins.

Q: "Now with regard to Michelle she displayed a great deal of anger and jealousy with regard to those twins; correct?"

A: "Yep."

...

Q: "And she really did get mad, right?"

A: "Yes."

Q: "She went around the house slamming things, didn't she?"

A: "Yep, stomping up and downstairs."

Q: "What else did she do? ..."

A: "Just walked up and down the stairs."

Q: "I think you said stomping?"

A: "Yes."

In a written statement taken on November 17, 1995, by Trooper John Murphy, the defendant stated that when her husband got home at 4 P.M. that day she told him that Justin had been sleeping since around noon.Her statement indicated that Christopher then picked Justin up and fed him and that Justin was not really taking his bottle and his body was cold.She stated that Justin looked white to her and that his eyes were glossy.The defendant stated that she told her husband, "I don't like the way he[Justin] looks; he doesn't look like himself."Christopher wrapped the baby in a blanket, and the defendant called their doctor between 6 and 7 P.M., because "at first I [the defendant] didn't think much of it, and Chris[topher] said he[Justin] was just cold."

In her statement, the defendant stated that she gave the doctor Justin's symptoms and the doctor asked her if Justin had a temperature.The defendant replied that she did not think so.In response to the doctor's questions, the defendant said that Justin was eating and moving his bowels.The doctor told the defendant to bring Justin in the next morning, since he already had an appointment.After that, the defendant said that her husband tried feeding Justin again at 7 P.M., and, even though he did not take the bottle at first, he then started taking it so she thought that everything was fine, and she left to go shopping.

The defendant contends that the principle applies that, "[w]hen the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof."Commonwealth v. Croft, 345 Mass. 143, 145, 186 N.E.2d 468(1962).Here, however, both the mother's statement and the father's testimony support the conclusion that the baby's injuries occurred sometime after 6:10 A.M.,...