Com. v. Michaud

• Decision Date: 16 June 1983
• Citation: 451 N.E.2d 396,389 Mass. 491
• Parties: COMMONWEALTH v. Carol A. MICHAUD. (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 396

451 N.E.2d 396

389 Mass. 491

COMMONWEALTH v. Carol A. MICHAUD.

(and a companion case ¹).

Supreme Judicial Court of Massachusetts,

Worcester.

Argued Feb. 9, 1983.

Decided June 16, 1983.

Robert I. Warner, Boston, for Normand R. Michaud.

Milton H. Raphaelson, Worcester, for Carol A. Michaud.

William E. Loughlin, Asst. Dist. Atty., for the Commonwealth.

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

HENNESSEY, Chief Justice.

The defendants were convicted of involuntary manslaughter of their daughter Rita Michaud. G.L. c. 265, § 13. On appeal, they claim error in the allowance of the Commonwealth's motion to amend the indictments, and in the denial of their motions to dismiss the indictments and for required findings of not guilty. The Appeals Court affirmed the convictions. Commonwealth v. Michaud, 14 Mass.App. 471, 410 N.E.2d 768 (1982). We allowed the defendants' applications for further appellate review. We conclude that the defendants' motions for required findings of not guilty should have been allowed. Accordingly, the convictions are reversed. ²

In reviewing the denial of the defendants' motions for required findings of not guilty, we consider " 'whether the evidence, in its light most favorable to the Commonwealth ... [was] sufficient ... to permit the jury to infer the existence of the essential elements of [involuntary manslaughter].' Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975). Accord, e.g., Commonwealth v. Dunphy, 377 Mass. 453, 455-456, 386 N.E.2d 1036 (1979); Commonwealth v. Seay, 376 Mass. 735, 737, 383 N.E.2d 828 (1978); Commonwealth v. Campbell, 375 Mass. 308, 311-312, 376 N.E.2d 872 (1978).... [T]he evidence and the inferences permitted to be drawn therefrom must be 'of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt,' as required by Commonwealth v. Cooper, [264 Mass. 368, 373, 162 N.E.2d 729 (1928) ]." Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). Commonwealth v. Borans, 379 Mass. 117, 134-135, 393 N.E.2d 911 (1979). Accord, Commonwealth v. Barrett, 386 Mass. 649, 655, 436 N.E.2d 1219 (1982), and cases cited.

The evidence, in the light most favorable to the Commonwealth, is briefly summarized. Carol gave birth to Rita on June 29, 1980. Carol's obstetrician testified that the pregnancy was without complications. At birth, the baby weighed seven pounds, six ounces, and appeared to be doing very well. Carol breast fed the baby in the hospital. Carol and the baby were discharged from the hospital on July 1, 1980, Rita then weighing six pounds, thirteen ounces. Carol's obstetrician testified that it is normal for a baby to lose ten per cent of its weight in the first few days of life.

On July 24, 1980, at 9:43 A.M., Carol called the Blackstone police and requested emergency aid because her baby was not breathing. The first officer to arrive found Normand giving artificial respiration to the baby, and observed a small exchange of air in the baby. Shortly after that, observing no exchange of air, he started mouth-to-mouth resuscitation. An emergency medical technician arrived, and continued the resuscitative efforts until the baby arrived at the Fogarty Memorial Hospital in North Smithfield, Rhode Island, where the emergency room staff took over. All efforts were unavailing, and the baby was pronounced dead at 10:12 A.M., by Dr. Charles Mead, the emergency room physician.

It was Dr. Mead's opinion that the baby was dead when she arrived at the emergency room, because she was cold, stiff, had no pulse, and was discolored. He testified that her condition was consistent with her having been deprived of oxygen for some period greater than fifteen minutes. He felt that the child looked undernourished, based on her size and lack of subcutaneous tissue, or baby fat. He stated that the nurses commented that "this child certainly looks very thin." The Commonwealth introduced four photographs which Dr. Mead testified were a fair and accurate representation of the baby's appearance when he examined her on July 24.

Dr. William Sturner, the chief medical examiner for the State of Rhode Island, performed an autopsy on the baby's body commencing at approximately 12:30 P.M., on July 24. The Commonwealth introduced five photographs which Dr. Sturner testified fairly and accurately depicted the baby's appearance just prior to the autopsy. In these photographs, the baby's ribs and backbone are visible. Dr. Sturner testified that he found the baby's body to be thin and malnourished. He based his opinion on the baby's weight, which was approximately six pounds; the differential between that weight and the birth weight, amounting to a loss of approximately one pound, six ounces; and the baby's prominent rib markings, and sunken cheeks and eyes due to the lack of subcutaneous tissue. There were no injuries or bruises. The baby's diaper was soiled with feces and a moisture consistent with urine. Dr. Sturner found no evidence of abnormalities of the face or mouth area, and the autopsy revealed no evidence of abnormalities of the gastro-intestinal tract or other internal organs which would prevent the absorption of food. The stomach was empty, but there were yellow mucous and fecal material in the distal colon and intestinal tract, indicating some ingestion in the preceding twenty-four to forty-eight hours, but not in the last four to six hours. He found no evidence other than starvation to account for the baby's death, and in particular made a specific determination that the death was not caused by the sudden infant death syndrome, or crib death. On the basis of the autopsy, as well as several tests, it was Dr. Sturner's opinion that the baby died of electrolyte imbalance due to malnutrition and dehydration as a result of starvation. He defined starvation as the lack of adequate or appropriate or sufficient sustenance and fluid getting to the tissues of the baby to sustain normal growth and development.

The Commonwealth introduced Carol's and Normand's statements to the police. Carol told the police that after she came home from the hospital she breast fed Rita for fifteen minutes at each breast, six or seven times a day. One of her breasts became sore, and, after calling a doctor, she purchased a breast pump. The last weekend (July 18 or 19) the weather got very hot, and the baby seemed to be cutting down her feeding. As a result, Carol's breasts filled up, and she used the breast pump, and fed the pumped milk to Rita later. She got three to three and one-half ounces of milk from both breasts combined, although on one occasion she got eight ounces. Even in the last week, the baby appeared healthy to her, and seemed to be getting heavier or longer. In response to a hypothetical question, Dr. Sturner testified that if Carol had fed Rita in the manner she described the baby would not have died of starvation. For purposes of this testimony, Dr. Sturner assumed that Carol's milk was of proper quality and quantity, and that Rita ingested milk during these feedings.

Normand told the police that he was a disabled veteran and that he stayed at home and cared for the four older children, while Carol cared for Rita. He stated that about a week before Rita died, his wife told him that the baby was not eating properly, and he told her to make an appointment with a doctor. However, he saw nothing wrong with the baby. The day before the baby died, Carol, Normand and the baby drove to a veteran's administration hospital, where Normand was being treated. They did not seek an examination for the baby. Other than the immediate family, the only person who saw the baby after she was born and left the hospital was a babysitter. She testified that when Carol brought the baby home, it looked healthy, with "beautiful pinkish colored cheeks." She saw Rita the Sunday before she died, and again the day before she died, and both times the baby looked paler than she had when she came home from the hospital. She never saw the baby undressed.

The defendants were charged with involuntary manslaughter. "Involuntary manslaughter is an unlawful homicide unintentionally caused by ... wanton or reckless conduct." Commonwealth v. Vanderpool, 367 Mass. 743, 747, 328 N.E.2d 833 (1975), and cases cited. "The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another." Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902 (1944). Commonwealth v. Gallison, 384 Mass. 184, ---, Mass.Adv.Sh. (1981) 1260, 1266, 425 N.E.2d 276. Moreover, we have approved jury instructions that "even if a particular defendant is so stupid [or] so heedless ... that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct in his dangerous act or omission, if an ordinary normal man under the same circumstances would have realized the gravity of the danger." Commonwealth v. Welansky, supra, 316 Mass. at 398-399, 55 N.E.2d 902. Commonwealth v. Godin, 374 Mass. 120, 129, 371 N.E.2d 438, cert. denied, 436 U.S. 917, 98 S.Ct. 2263, 56 L.Ed.2d 758 (1977).

Parents have a duty to provide for the care and welfare of their children. Commonwealth v. Gallison, 384 Mass. 184, --- - ---, Mass.Adv.Sh. (1981) 1260, 1266-1267, 425 N.E.2d 276, and cases cited. The Commonwealth's position was that either Carol and Normand did not feed Rita, or they failed to take reasonable steps to care for her in light of what they knew or should have known to be her deteriorating condition, or both. As to the failure to feed Rita, based on the opinions of Drs. Mead and Sturner, the jury could have found that Rita died of starvation. However, the Commonwealth also had to produce enough evidence to permit a rational juror...