Com. v. Michaud

• Decision Date: 02 December 1982
• Parties: COMMONWEALTH v. Carol A. MICHAUD (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 768

440 N.E.2d 768

14 Mass.App.Ct. 471

COMMONWEALTH v. Carol A. MICHAUD (and a companion case ¹).

Appeals Court of Massachusetts,

Worcester.

Argued March 8, 1982.

Decided Oct. 1, 1982.

Further Appellate Review Granted Dec. 2, 1982.

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

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

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

Before HALE, C. J., and GRANT and PERRETTA, JJ.

HALE, Chief Justice.

The defendants (Carol and Norman) were convicted by a jury in the Superior Court of involuntary manslaughter on amended indictments which charged, following a form in G.L. c. 277, § 79, that the defendants, "being under the legal duty and being of sufficient ability to provide Rita Michaud who was [their] daughter with sufficient food and drink for her sustenance and maintenance did neglect and refuse so to do; by reason whereof said Rita Michaud, being unable to provide sufficient food and drink for herself, became and was mortally sick and died." They were both sentenced to three years' probation.

The defendants assign as error (1) the denial of their respective motions to dismiss the indictments, as they did not "allege elements necessary to a charge of the crime of manslaughter;" (2) the allowance of the Commonwealth's motions to amend the indictments so that the words "neglect or refuse" as appearing therein would read "neglect and refuse;" and (3) the denial of their respective motions for required findings of not guilty.

The wording of the indictments in this case, as stated above, faithfully followed the form provided by G.L. c. 277, § 79, and, because the terms of that statute are sufficient to allege a criminal offense, an indictment following that form is not open to dismissal. Compare Commonwealth v. Benjamin, 358 Mass. 672, 675-676, 266 N.E.2d 662 (1971); Commonwealth v. McClaine, 367 Mass. 559, 560, 326 N.E.2d 894 (1975). The language in the forms set out in § 79, and in particular the form followed in this case, does not create or define a new or different crime of manslaughter. That language is merely a form by which the common law crime of manslaughter may properly be charged. See Commonwealth v. Hall, 322 Mass. 523, 529-530, 78 N.E.2d 644 (1948).

2. The indictments, as returned by the grand jury, charged, as noted above, that the defendants, having the duty to provide the deceased child "with sufficient food and drink ... did neglect or refuse so to do" (emphasis supplied). Upon the Commonwealth's motion, the judge allowed the amendment of the disjunctive "or" to the conjunctive "and" so that the indictments would conform to the wording of the form set out in G.L. c. 277, § 79, which they otherwise closely tracked. Rule 4(d) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 849-850 (1979), provides that "a judge may allow amendment of the form of a complaint or indictment if such amendment would not prejudice the defendant ...." That rule replaced G.L. c. 277, § 35A, which was repealed by St. 1979, c. 344, § 35, and which contained language to the same effect as the part of rule 4(d) quoted above. The defendants conceded before the trial judge that the Commonwealth's burden was increased by this change and that it did not harm them. Likewise, they have not claimed on appeal that they were prejudiced in any way by the change, but they do contend that the change was one of substance and thus that they are not required to show prejudice. Commonwealth v. Snow, 269 Mass. 598, 603, 606, 609-610, 169 N.E. 542 (1930).

The test to determine whether an amendment is one of form rather than substance is "whether judgment of conviction or acquittal on the indictment as drawn would be a bar to a new indictment in the form in which it stood after the amendment." Snow, supra, at 609, 169 N.E. 542. Commonwealth v. Binkiewicz, 342 Mass. 740, 748, 175 N.E.2d 473 (1961). Commonwealth v. Baker, 10 Mass.App. 852, ---, Mass.App.Ct.Adv.Sh. (1980) 1511, 1512, 407 N.E.2d 398. In this case, if one of the defendants had been acquitted of "neglecting or refusing" to provide nourishment for the child, that defendant could not be successfully prosecuted later for "neglecting and refusing" to provide such nourishment, as the prior acquittal would necessarily imply that the defendant had been put in jeopardy on both elements but found guilty of neither.

Furthermore, the defendants' argument that the amendment materially altered the function of the grand jury (see Snow, supra, 269 Mass. at 606, 169 N.E. 542; Commonwealth v. Gallo, 2 Mass.App. 636, 639, 318 N.E.2d 187 [1974] ) is without merit. The crime charged in the present indictments was manslaughter. The words "neglect" and "refuse", whether employed disjunctively or conjunctively, are nothing more than specifications of the manner by which the crime was alleged to have been committed. In the words of Commonwealth v. DiStasio, 294 Mass. 273, 278, 1 N.E.2d 189 (1936), "[t]he amendment did not change the substance of the crime charged, but restricted the Commonwealth in its proof, to the advantage of the defendant[s], in much the same way as might have been done by specifications." There was no error in the allowance of the amendment.

3. The defendants both argue that the evidence was insufficient to warrant a finding of guilty of involuntary manslaughter and that it was error to deny their motions for required findings of not guilty when filed at the conclusion of the Commonwealth's case and when renewed at the close of all the evidence. Mass.R.Crim.P. 25, 378 Mass. 896 (1979).

The evidence at the close of the Commonwealth's case, taken in the light most favorable to the Commonwealth, can be briefly summarized as follows: Carol Michaud gave birth to Rita on June 29, 1980. Carol's pregnancy was without complications, and at birth the baby was healthy and weighed seven pounds, six ounces (3,350 grams). Carol breast fed the baby in the hospital. The nurses' notes in the hospital record show that shortly after birth the infant was feeding but was sleepy, and that the next morning the baby nursed very well, but that afternoon she was sleepy and "so didn't nurse as well." There were no other notes as to feeding. The mother and baby were discharged from the hospital on July 1, 1980, the baby then weighing six pounds, thirteen ounces (3,100 grams). As testified to by Carol's obstetrician, this loss of weight was commensurate with the ten percent weight loss that most babies experience in the first few days of life. The baby was not seen alive by a physician after it left the hospital.

On July 24, 1980, at 9:43 A.M. the Blackstone police department got a call from Carol, who asked for help as her baby had stopped breathing. A police officer and rescue squad were dispatched, and the officer was the first to arrive. He was met by Carol, who directed him to the master bedroom. As he entered the bedroom he saw Norman giving artificial respiration to the baby. The officer noticed a small exchange of air in the baby, but, as she then stopped breathing, he employed mouth to mouth resuscitation procedures. A few minutes later an emergency medical technician arrived, who continued the resuscitative efforts, and shortly after that the rescue squad arrived and transferred the baby to the Fogarty Memorial Hospital in North Smithfield, Rhode Island. Although cardiopulmonary resuscitation was given to the baby during the entire short ride to the hospital, the initial assessment by Dr. Mead, the emergency room physician, was that there was nothing that could be done medically to save the baby. The baby arrived in the emergency room with no pulse or respiratory functions, cold and stiff with rigor mortis. Nevertheless, life saving emergency techniques were employed by the hospital staff. Those efforts were without result, and the baby was pronounced dead at 10:12 A.M. The emergency room physician testified that the baby appeared to be undernourished. All of the nurses commented that "this child certainly looks very thin."

An autopsy was performed by the chief medical examiner of the State of Rhode Island, Dr. William Q. Sturner. Photographs of the body were taken before the autopsy was performed, and five of them were introduced in evidence. The pictures show a baby whose ribs and backbone were clearly visible and protruding and whose eyes had sunken in their sockets. Dr. Sturner's initial visual observations were that the baby was thin and malnourished. There were no physical abnormalities, nor were there any injuries or bruises. The child's diaper was soiled with feces and a moisture consistent with urine. The autopsy revealed no abnormalities of internal organs or of the gastrointestinal tract which could provide an organic or physiological basis for the malnourishment of the child (i.e., there was no inability on the part of the child to absorb food). The baby's stomach was empty, but a yellow mucous and soft fecal material were found in the baby's intestinal tract and distal colon. Dr. Sturner stated that the baby's condition was the result of malnourishment, which he defined as the lack of adequate or appropriate or sufficient amounts of material to sustain normal growth and development. On the basis of his autopsy, which included tests for toxic and infectious agents in the baby's body and complete microscopic studies of the internal organs of the infant, the physical characteristics which were mentioned above, and the fact that the baby weighed, at death, approximately six pounds (2,738.8 grams), or one pound, six ounces less than she weighed at birth, Dr. Sturner opined the cause of death to be electrolyte imbalance due to malnutrition and dehydration as a result of starvation. He ruled out as a cause of death the "sudden infant death syndrome," or so-called "crib death."

Carol and Norman had four other children living with them at the time of the incident. There was a twelve year old...