Com. v. Robinson

• Decision Date: 31 January 1991
• Docket Number: No. 88-P-373,88-P-373
• Citation: Com. v. Robinson, 565 N.E.2d 1229, 30 Mass.App.Ct. 62 (Mass. App. 1991)
• Parties: COMMONWEALTH v. Janice ROBINSON.
• Court: Appeals Court of Massachusetts

Page 1229

565 N.E.2d 1229

30 Mass.App.Ct. 62

COMMONWEALTH v. Janice ROBINSON.

No. 88-P-373.

Appeals Court of Massachusetts Suffolk.

Argued Oct. 17, 1990.

Decided Jan. 31, 1991.

Kim C. Rosen, Northampton, for defendant.

Annemarie Relyea-Chew, Asst. Dist. Atty., for Com.

Before SMITH, FINE and IRELAND, JJ.

SMITH, Justice.

On February 27, 1984, the defendant, a nineteen year old mother, brought her eleven month old son (the child) to the Children's Hospital in Boston. After an examination, he was admitted to the hospital; it was his third admission. After admission, he was diagnosed as suffering from "failure to thrive" because of his below average growth and poor weight gain. ¹ On March 3, while in the hospital, the child became critically ill. Tests revealed a dangerously high level of sodium chloride (sodium) in the child's blood and in the formula he was being fed. He died on March 5, 1984. An autopsy was performed. The medical examiner determined that the child's death resulted from poisoning caused by massive salt intoxication. There was no organic reason found to explain the child's failure to thrive.

On May 23, 1984, a Suffolk County grand jury indicted the defendant for manslaughter in connection with her son's death. Before trial, the defendant filed a motion to exclude certain psychiatric evidence derived from a forty-five minute private conversation between the defendant and a physician. The defendant also filed a motion to suppress two nursing bottles (nursers) used in feeding the child while at the hospital and the results of tests showing the nursers' contents to be tainted with dangerous concentrations of sodium. Both motions were denied.

The defendant obtained leave to appeal the denial of each motion. The Supreme Judicial Court reversed the motion judge's denial of the exclusion motion and precluded the psychiatric evidence from being introduced at the trial. Robinson v. Commonwealth, 399 Mass. 131, 132-136, 503 N.E.2d 31 (1987). The Court, however, affirmed the motion judge's denial of the defendant's suppression motion. Commonwealth v. Robinson, 399 Mass. 209, 215-218, 503 N.E.2d 654 (1987).

The case was tried before a Superior Court judge and a jury. The defendant's motions for a required finding of not guilty were denied after the close of the Commonwealth's case and after the close of all the evidence. The jury found the defendant guilty of involuntary manslaughter. Her motion for a required finding of not guilty filed after the return of the guilty verdict was also denied.

The defendant has raised numerous issues on appeal. She challenges the judge's denials of her motions for a required finding of not guilty filed during the trial and also after the return of the verdict. The defendant also contends that the judge erred in some of his evidentiary rulings. Finally, the defendant contends that the prosecutor engaged in misconduct of such a nature that a new trial is required.

We start our analysis with the "required finding" issue. During the course of summarizing the facts necessary to our decision on that issue, we will dispose, by footnotes, of some of the other claims raised by the defendant.

1. Denials of motions for required finding of not guilty.

a. Denials of motions filed during trial. The defendant agrees with the Commonwealth that the child died of salt poisoning and that the excessive salt found in the child came from a quart bottle containing his formula. The defendant argues, however, that the Commonwealth failed to present sufficient evidence that she was the person who put the salt into the formula.

In deciding the issue raised by the defendant, we apply familiar standards. "In reviewing the denial of motions for [required findings of not guilty] in criminal cases, we have frequently said that 'we must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged....' " Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). "We consider the state of the evidence both at the close of the Commonwealth's case and at the close of [all] the evidence." Commonwealth v. Helfant, 398 Mass. 214, 216, 496 N.E.2d 433 (1986). We note that the Commonwealth's position as to proof did not deteriorate after it closed its case.

We summarize the evidence as it may have appeared to the jury. While a patient, the child received feedings of Pregestimil, a special formula stocked by the hospital's pharmacy. Most formulas are "ready-to-feed" in four or eight ounce bottles. Pregestimil, however, is a special formula requiring hand-blending. It is prepared in the hospital's milk laboratory daily according to the attending doctor's daily prescription. The laboratory would prepare thirty-two ounces of the formula at a time and deliver it in quart bottles to the refrigerators in the divisional kitchens at about 2:30 P.M. to 3:05 P.M. each day. The formula would be transferred from the quart bottle to a nurser at feeding time. Each quart bottle was labeled with the patient's name. ² Unused formula in the quart bottle from the previous day is thrown out when fresh formula is placed in the divisional kitchens. The kitchen, which was a part of the division where the child was being treated, had a sign outside its door stating "Authorized Personnel Only." Parents of the patients, however, were allowed to enter and had access to their children's food, including the quart bottles of formula. In addition, parents were allowed to feed their own children.

From February 27 to February 28, the child lost a small amount of weight. He was placed on an intravenous unit (I.V.) on February 28. At that time, the total amount of salt in the child's body was equivalent to two and three-quarters teaspoons, a normal amount of salt. On February 29, the defendant commented to a nurse that the child was getting puffy from the I.V. and, on Thursday, March 1, she said, "if only he could be that big all the time."

In the afternoon of March 1, another parent whose child was a patient at the hospital overheard the defendant lamenting the fact that the child's medical problems were not yet solved. During this conversation, while holding the child on her lap, the defendant said, "Poor little thing would be better off dead." ³ Later the same day the defendant commented to the nurse that the child's puffiness made him look good. The nurse pointed out that he was bloated from the I.V. fluids. The defendant knew that the I.V. fluids contained salt.

A Mrs. Roche and a Mr. and Mrs. Keller, parents of children receiving treatment in the hospital, had become friendly with the defendant. While they were in the parents' waiting room, the defendant told them that "they were trying to take her baby away." When asked who was trying to take the [child] away, the defendant responded, "I read [the child's] chart. They're trying to take my [child] away." According to Mr. Keller, the defendant said, "I can't believe Social Services [is] investigating me for child abuse." ⁴ Later that week, Mrs. Roche heard the defendant say that she was concerned that the child was not gaining weight and "she had to come up with or figure out some way to get him fattened up so she [could] get him out and take him home". Also during the week, the defendant told Mrs. Roche that while she was pregnant she had become overweight and her obstetrician told her to stop using salt. The defendant also told an investigator that she knew salt was bad and could lead to swelling. In a later conversation with an investigator she said she remembered that during her pregnancy a doctor had told her salt was not good for the kidneys and that she used unsalted potato chips during her pregnancy.

In the afternoon of March 1, around 2:30 P.M., a dietary aide saw the defendant in the divisional kitchen making tea. The dietary aide left but returned to the kitchen at 3:05 P.M. At that time, she observed and wiped up from the counter some white particles which she assumed to be sugar. ⁵ At 10:00 A.M. on March 2, another dietary aide saw the defendant boiling water in the kitchen. At noon on the same day, a nurse entered the divisional kitchen and discovered that the round tupperware container of salt packets was not in its normal place. Instead, she found a square plastic container of salt packets among the sugar and crackers. The nurse observed that about forty or fifty of the packets were empty and there was no loose salt in the container. Later, the defendant's fingerprints were found on two of the empty salt packets.

On March 2 at 3:00 P.M., the child underwent a pancreatic stimulation test. This test required that the child not be fed the whole day. During the test, however, he was to receive intravenous fluids. At about 5:00 to 5:30 P.M., while the child was undergoing his test, Mrs. Roche and the defendant were in the hospital cafeteria. Mrs. Roche saw the defendant take more than a "handful" of salt packets from the serving line and place them in her "pocketbook/pouch." When Mrs. Roche asked about the salt, the defendant answered that there was very little salt in the divisional kitchen and if she got hungry later she wanted to have some salt to put on her salad. ⁶

The child was returned to the defendant after the pancreatic stimulation test at approximately 8:00 P.M. The defendant told the nurse that she had saved dinner and would feed the child. The nurse, one Turner, did not see the defendant feed the child at that time.

Nurse Turner checked with the defendant an hour later in the child's room. The defendant said that she had fed the child "one teaspoon of cereal, one-half teaspoon of fruit, two peas and [one half ounce] of Pregestimil." An hour later, at 10:00 P.M., Turner noted that the child's feet and eyes were marked by...