Com. v. Twitchell

Decision Date11 August 1993
Citation617 N.E.2d 609,416 Mass. 114
PartiesCOMMONWEALTH v. David R. TWITCHELL (and a companion case 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Steven M. Umin, Washington, DC (Kevin J. Hasson, Washington, DC, Rikki J Klieman & Stephen J. Lyons, Boston, with him), for defendants.

Marcy Cass, Asst. Dist. Atty. (Paul B. Linn, Asst. Dist. Atty., with her), for Com.

Theodore E. Dinsmoor, Boston, for The First Church of Christ, Scientist, amicus curiae, submitted a brief.

Eric S. Maxwell & John Reinstein, Boston, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

David and Ginger Twitchell appeal from their convictions of involuntary manslaughter in connection with the April 8, 1986, death of their two and one-half year old son Robyn. 2 Robyn died of the consequences of peritonitis caused by the perforation of his bowel which had been obstructed as a result of an anomaly known as Meckel's diverticulum. There was evidence that the condition could be corrected by surgery with a high success rate.

The defendants are practicing Christian Scientists who grew up in Christian Science families. They believe in healing by spiritual treatment. During Robyn's five-day illness from Friday, April 4, through Tuesday, April 8, they retained a Christian Science practitioner, a Christian Science nurse, and at one time consulted with Nathan Talbot, who held a position in the church known as the "Committee on Publication." 3 As a result of that consultation, David Twitchell read a church publication concerning the legal rights and obligations of Christian Scientists in Massachusetts. That publication quoted a portion of G.L. c. 273, § 1, as then amended, which, at least in the context of the crimes described in that section, accepted remedial treatment by spiritual means alone as satisfying any parental obligation not to neglect a child or to provide a child with physical care. We shall subsequently discuss this statute in connection with the defendants' claim, rejected by the trial judge, that the spiritual treatment provision in G.L. c. 273, § 1, protects them from criminal liability for manslaughter. 4

We need not recite in detail the circumstances of Robyn's illness. The jury would have been warranted in concluding that Robyn was in considerable distress and that, in the absence of their belief in and reliance on spiritual treatment, the parents of a child in his condition would normally have sought medical treatment in sufficient time to save that child's life. There was also evidence that the intensity of Robyn's distress ebbed and flowed, perhaps causing his parents to believe that prayer would lead to the healing of the illness. On the other hand, the jury would have been warranted in finding that the Twitchells were wanton or reckless in failing to provide medical care for Robyn, if parents have a legal duty to provide a child with medical care in such circumstances and if the spiritual treatment provision of G.L. c. 273, § 1, did not protect them from manslaughter liability.

We shall conclude that parents have a duty to seek medical attention for a child in Robyn's circumstances, the violation of which, if their conduct was wanton or reckless, could support a conviction of involuntary manslaughter and that the spiritual healing provision in G.L. c. 273, § 1, did not bar a prosecution for manslaughter in these circumstances. We further conclude, however, that special circumstances in this case would justify a jury's finding that the Twitchells reasonably believed that they could rely on spiritual treatment without fear of criminal prosecution. This affirmative defense should have been asserted and presented to the jury. Because it was not, there is a substantial risk of a miscarriage of justice in this case, and, therefore, the judgments must be reversed.

1. We shall first consider whether the law generally imposes a parental duty to provide medical services to a child, the breach of which can be the basis of a conviction for involuntary manslaughter. We thus put aside temporarily the question of what, if any, application the spiritual treatment provision in G.L. c. 273, § 1, has to this case.

The Commonwealth presented its case on the theory that each defendant was guilty of involuntary manslaughter because the intentional failure of each to seek medical attention for their son involved such "a high degree of likelihood that substantial harm will result to" him as to be wanton or reckless conduct. Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902 (1944). See Commonwealth v. Godin, 374 Mass. 120, 129, 371 N.E.2d 438 (1977), cert. denied, 436 U.S. 917, 98 S.Ct. 2263, 56 L.Ed.2d 758 (1978). Our definition of involuntary manslaughter derives from the common law. See Commonwealth v. Catalina, 407 Mass. 779, 783, 556 N.E.2d 973 (1990). A charge of involuntary manslaughter based on an omission to act can be proved only if the defendant had a duty to act and did not do so. Commonwealth v. Welansky, supra. That duty, however, is not limited to those duties whose violation would create civil liability. Commonwealth v. Godin, supra 374 Mass. at 126-127, 371 N.E.2d 438.

The Commonwealth claims that the defendants owed an affirmative duty of care to their son which they wantonly or recklessly failed to perform. The duty to provide sufficient support for a child is legally enforceable in a civil proceeding against a parent. See Ventura v. Ventura, 407 Mass. 724, 729, 555 N.E.2d 872 (1990). A breach of that duty is a misdemeanor. G.L. c. 273, § 1 (1992 ed.). Where necessary to protect a child's well-being, the Commonwealth may intervene, over the parents' objections, to assure that needed services are provided. See Matter of McCauley, 409 Mass. 134, 137, 565 N.E.2d 411 (1991); Custody of a Minor, 375 Mass. 733, 748-749, 379 N.E.2d 1053 (1978). More important, for our current purposes, a parental duty of care has been recognized in the common law of homicide in this Commonwealth. See Commonwealth v. Hall, 322 Mass. 523, 528, 78 N.E.2d 644 (1948) (conviction of murder in the second degree based on withholding of food and liquids).

The defendants argue, however, that any common law duty of care does not include a duty to provide medical treatment and that there is no statute imposing such a duty except G.L. c. 273, § 1, which, in turn, in their view, provides them with complete protection against any criminal charge based on their failure to seek medical treatment for their son. In their argument that the common law of the Commonwealth does not include a duty to provide medical treatment, the defendants overlook Commonwealth v. Gallison, 383 Mass. 659, 421 N.E.2d 757 (1981). In that case, we upheld a conviction of manslaughter, saying that a parent who "made no effort to obtain medical help, knowing that her child was gravely ill," could be found guilty of wanton or reckless involuntary manslaughter for her child's death caused by her omission to meet her "duty to provide for the care and welfare of her child." Id. at 665, 421 N.E.2d 757. Cf. Commonwealth v. Michaud, 389 Mass. 491, 498-499, 451 N.E.2d 396 (1983) (evidence insufficient to support Commonwealth's theory of involuntary manslaughter for reckless failure to seek medical attention for a child). The Gallison opinion did not rely on § 1 as the basis of the parent's duty to provide medical care. It relied rather on the more general duty of care underlying civil and criminal liability. Commonwealth v. Gallison, supra 383 Mass. at 665, 421 N.E.2d 757. There is, consequently, quite apart from § 1, a common law duty to provide medical services for a child, the breach of which can be the basis, in the appropriate circumstances, for the conviction of a parent for involuntary manslaughter.

2. We, therefore, consider the impact, if any, of G.L. c. 273, § 1, on this case. The defendants argue that the spiritual treatment provision in § 1 bars any involuntary manslaughter charge against a parent who relies, as they did, on spiritual treatment and who does not seek medical attention for his or her child, even if the parent's failure to seek such care would otherwise be wanton or reckless conduct. We disagree.

The Commonwealth asks us to eliminate any application of the spiritual treatment provision to this case by holding that the spiritual treatment provision is unconstitutional. The argument is based solely on the establishment of religion clause of the First Amendment to the Constitution of the United States and the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. Apparently, the latter theory was not raised below, and the former was raised but was not decided. These claims of unconstitutionality place the Commonwealth in the position of challenging the constitutionality of its own duly enacted statute. Issues of timeliness and standing are obvious. The retroactive invalidation of a statute on which a criminal defendant relied in justification of his conduct would present a serious fairness issue. Cf. Marks v. United States, 430 U.S. 188, 196, 97 S.Ct. 990, 995, 51 L.Ed.2d 260 (1977). Because we shall conclude that the spiritual treatment provision does not apply to foreclose a charge of involuntary manslaughter, we need resolve neither these preliminary questions nor the underlying constitutional one. The constitutional issues, of course, remain within § 1. On those issues, see Dalli v. Board of Educ., 358 Mass. 753, 759, 267 N.E.2d 219 (1971); Walker v. Superior Court, 47 Cal.3d 112, 144, 253 Cal.Rptr. 1, 763 P.2d 852 (1988) (Mosk, J., concurring), cert. denied, 491 U.S. 905, 109 S.Ct. 3186, 105 L.Ed.2d 695 (1989); State v. McKown, 475 N.W.2d 63, 69 n. 9 (Minn.1991), cert. denied, 502 U.S. 1036, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992); ...

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