Com. v. Neverson

• Decision Date: 25 October 1993
• Docket Number: No. 92-P-408,92-P-408
• Citation: 35 Mass.App.Ct. 913,619 N.E.2d 344
• Parties: COMMONWEALTH v. Trevor NEVERSON.
• Court: Appeals Court of Massachusetts

Page 344

619 N.E.2d 344

35 Mass.App.Ct. 913

COMMONWEALTH v. Trevor NEVERSON.

No. 92-P-408.

Appeals Court of Massachusetts,

Hampden.

Argued June 11, 1993.

Decided Sept. 10, 1993.

Further Appellate Review Denied Oct. 25, 1993.

Charles K. Stephenson, Granby, for defendant.

Elizabeth Dunphy Farris, Asst. Dist. Atty., for Com.

Before ARMSTRONG, KASS and LAURENCE, JJ.

RESCRIPT.

At the defendant's first trial for the murder of his fifteen month old stepdaughter, the judge ordered a required finding of not guilty as to so much of the indictment as charged murder in the first degree and submitted the case to the jury on murder in the second degree and manslaughter. The case ended in a mistrial, the jury being unable to agree. The defendant sought to block a second trial on prior jeopardy grounds, his contention being that the evidence at the first trial was insufficient to support a finding of guilt beyond a reasonable doubt. See Commonwealth v. Ginnetti, 400 Mass. 181, 182, 508 N.E.2d 603 (1987). That contention was rejected by the Supreme Judicial Court in Neverson v. Commonwealth, 406 Mass. 174, 178-179, 546 N.E.2d 876 (1989). The defendant, now retried and found guilty of manslaughter, appeals from his conviction.

1. His first contention is that his motion for a required finding of not guilty was improperly denied because the evidence failed to establish that the injuries that caused death were inflicted during the period 2:00 P.M. to 11:30 P.M., when according to the evidence the baby was in his sole custody. The evidence on this point was substantially the same as that at the first trial (described at 406 Mass. at 178, 546 N.E.2d 876). The baby was reported dead by the parents shortly after 7:00 A.M. the next morning. The medical examiner, Dr. Loren J. Mednick, arrived at 8:30 A.M., determined at that time that advanced rigor mortis was present ("two plus, three plus" range), indicating, Dr. Mednick testified, that the baby had been dead from six to twelve hours; more specifically, that the baby had died as early as 8:35 P.M. and at the latest at 2:35 A.M. The medical examiner testified that, to a reasonable degree of medical certainty, he could estimate that death occurred prior to the midpoint in that range, which would be approximately 11:35 P.M., and that the child's extensive injuries (causing hemorrhaging in major internal organs) had been suffered approximately two to three hours prior to death. Dr. George Kastas gave as his opinion that the injuries had been inflicted no more than two hours prior to death, most likely one hour; but in his view the child had been dead ten to twelve hours before Dr. Mednick's initial examination at 8:30 A.M. Thus, despite the relatively slight variations between the experts, both placed the time that the injuries were inflicted before 11:30 P.M., when, according to the testimony, the baby's mother returned home from work. Neither doctor's opinion seems to have turned on the milk in the baby's stomach, which, according to Dr. Mednick, was probably drunk no more than an hour or so before death. The pivotal factor, as we read their testimony, was the condition (swelling, etc.) of various lacerations and abrasions that were inflicted by (in their view) blunt force blows inconsistent with household accident. Moreover, as we read the...