Commonwealth v. Boghossian, 100819 MASUP, 18-606

Docket Nº:Criminal 18-606
Opinion Judge:Peter B. Krupp, Justice of the Superior Court
Party Name:COMMONWEALTH v. Tania BOGHOSSIAN
Case Date:October 08, 2019
Court:Superior Court of Massachusetts
 
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COMMONWEALTH

v.

Tania BOGHOSSIAN

Criminal No. 18-606

Superior Court of Massachusetts, Department of Trial Court, Middlesex

October 8, 2019

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS

Peter B. Krupp, Justice of the Superior Court

Defendant Tania Boghossian is charged with armed assault to murder a person 60 years or older (Count 001), suffocation (Count 002), assault and battery on an elder (Count 003), and abuse, neglect or mistreatment of a person 60 years or older for whom she was a caretaker (Count 004). Defendant’s father, Antoine Boghossian, is the named victim in each charge. While Counts 001 - 003 arise out of a single incident on October 12, 2018, Count 004 broadly sweeps up almost six years of interactions between defendant and her father. Specifically, Count 004 alleges a violation of G.L. c. 265, § 13K(d½), "[o]n diverse dates" between November 1, 2012 and October 12, 2018. Defendant moves to dismiss Count 004. She argues under Commonwealth v. McCarthy, 385 Mass. 160, 430 N.E.2d 1195 (1982), that the grand jury heard insufficient evidence to support that indictment, particularly after the Supreme Judicial Court’s interpretation of "wanton or reckless" conduct in Commonwealth v. Hardy, 482 Mass. 416, 123 N.E.3d 773 (2019). For the following reasons, the motion must be denied.

BACKGROUND

The grand jury had the following information, and could have reasonably inferred from the information before it, the following:

A. The Precipitating Incident (Counts 001 - 003)

On October 12, 2018, Mr. Boghossian, who was 86 years old, was a patient at Mt. Auburn Hospital, and had been a patient there for a week with a diagnosis of "vascular dementia with behavioral disturbances." The hospital discussed with defendant hospice options for Mr. Boghossian and recommended a skilled nursing facility for him. The hospital noted that although Mr. Boghossian was only supposed to be on one medication, defendant had been giving him two different medications.

Because of his seizure activity, perhaps among other reasons, the hospital assigned a one-to-one sitter to stay with Mr. Boghossian at the hospital and to call in a nurse if needed. During Mr. Boghossian’s hospitalization, defendant frequently stayed in his room. The one-to-one sitter noticed Mr. Boghossian would be slightly more agitated when defendant was in the room than when she was not.

On October 12, 2018, when the one-to-one sitter stepped behind a curtain to let defendant have a private moment with Mr. Boghossian, the one-to-one sitter heard rustling, heard defendant say we are going to stop breathing now, and then observed defendant holding a pillow over her father’s face and pinning the pillow down with her forearms. The sitter quickly intervened. Ultimately, defendant tried to run away, sprinting into a stairwell and running down to the lobby before being stopped by security. These alleged facts give rise to Counts 001, 002 and 003.

B. Earlier Events (Count 004)

Count 004 arises from involvement by Springwell Protective Services ("Springwell") with defendant and her father over the six years before October 12, 2018. Springwell, among other things, investigates suspected elder abuse and neglect and provides services to elders in the community.

Mr. Boghossian was diagnosed with dementia in or before 2012.1 From 2012 on, defendant handled her father’s finances and medical appointments, sometimes with the assistance of an aide, who was a family friend and who at various times lived in the Boghossian home.[2] As discussed below, Springwell first became involved with defendant and her father in or about November 2012.

1. 2012 - 2013

In November 2012, Mr. Boghossian was in a car accident, but kept driving and did not remember he had been in the accident. Mr. Boghossian was hospitalized after the accident and later was placed in a skilled rehabilitation facility. (The Commonwealth made clear at argument that it does not contend that defendant violated § 13K(d½) by permitting Mr. Boghossian to drive in connection with the November 2012 car accident.) On December 26, 2012, Mr. Boghossian had a stroke and became even more confused. Springwell personnel spoke to defendant about Mr. Boghossian not being left alone given his cognitive and physical status. Defendant expressed feeling overwhelmed. From January through July 2013, Mr. Boghossian was in a skilled facility. At the end of this period, defendant reported that she had hired someone to provide 24/7 care and Springwell’s involvement ended.

No evidence of any events or conduct violative of § 13K(d½) was presented to the grand jury related to the period between Mr. Boghossian’s car accident in November 2012 and events beginning in August 2015.3

2. 2015

Springwell became involved again in August 2015 when it received information that Mr. Boghossian had dementia and was wandering, but would usually find his way home. It received information that on one occasion in August 2015, Mr. Boghossian "wandered into traffic and caused an accident." Defendant refused to obtain adult daycare or private care for her father.

Springwell also received reports that defendant would often drop off Mr. Boghossian at the Belmont Public Library ("BPL") and he would be at the BPL 5-7 times per week. BPL staff reported concerns about Mr. Boghossian being confused. They reported that he acted as if he were home, appeared very agitated at times, and in one instance took off his pants and folded his clothes as if he was trying to go to sleep. The librarian would call defendant, but she would often refuse to come and pick up Mr. Boghossian. The Belmont police were called many times.

Springwell personnel contacted Mr. Boghossian’s primary care physician in 2015, who reported that defendant was difficult to deal with and did not follow his instructions for her father’s care, including giving Mr. Boghossian medication that was not then-prescribed, in contravention of medical direction. Mr. Boghossian’s primary care physician told Springwell that he had recommended to defendant that Mr. Boghossian needed 24-hour care at...

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