Commonwealth v. Millien

• Decision Date: 03 June 2016
• Docket Number: SJC–11928.
• Citation: 50 N.E.3d 808,474 Mass. 417
• Parties: COMMONWEALTH v. Oswelt MILLIEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

474 Mass. 417

50 N.E.3d 808

COMMONWEALTH

v.Oswelt MILLIEN.

SJC–11928.

Supreme Judicial Court of Massachusetts, Middlesex.

Submitted Dec. 7, 2015.

Decided June 3, 2016.

David Hirsch for the defendant.

Kate Cimini, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Seth Miller, of Florida, Katherine H. Judson, of Wisconsin, Adam W. Deitch & Lindsay A. Olson, of New York, & Mark W. Batton for The Innocence Network.

Heather Kirkwood, of Washington, & David E. Meier, Boston, for David Ayoub & others.

Matthew R. Segal, Dennis Shedd, Lexington, & Chauncey B. Wood, Boston, for Committee for Public Counsel Services & others.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

GANTS, C.J.

On the evening of October 20, 2009, the defendant's six month old daughter, Jahanna, was rushed to the emergency room, unconscious and unresponsive. She was diagnosed with traumatic brain injury, and scans of her brain showed retinal hemorrhages, subdural hematoma, and brain swelling, the three symptoms known as “the triad” associated with shaken baby syndrome. The defendant, who was the baby's sole caretaker when she became unconscious, claimed that Jahanna accidentally fell backwards from the couch where she was sitting and landed on the wooden floor. After Jahanna's physicians concluded that her brain injuries could not have been caused by an accidental fall from the couch but were instead caused by a violent shaking, the defendant was charged and later convicted by a jury of assault and battery on a child causing substantial bodily injury (head injuries ), in violation of G.L. c. 265, § 13J (b ), and assault and battery on a child causing bodily injury (fractured vertebrae), in violation of G.L. c. 265, § 13J (a ).¹

There is a heated debate in the medical community as to whether a violent shaking of a baby alone can generate enough force to cause the triad of symptoms of traumatic brain injury, and as to whether these symptoms can sometimes be caused by a short accidental fall. At trial, the jury heard only one side of this debate, because the defense attorney did not retain a medical expert to offer opinion testimony or to assist him in cross-examining the Commonwealth's medical experts. We conclude that, in these circumstances, where the prosecution's case rested almost entirely on medical expert testimony, the defendant was denied his constitutional right to the effective assistance of counsel because, by not providing the jury with the other side of this debate, his attorney's poor performance “likely deprived the defendant of an otherwise available, substantial ground of defence.” See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974).²

Background. 1. Evidence at trial. We summarize the evidence presented at trial. The defendant was in his early twenties when his girl friend, Amanda Leavitt, told him that she was pregnant. He urged her to “keep” the baby, and accompanied her to medical appointments during the pregnancy. Although he was disappointed when he learned that Leavitt was going to have twin girls, preferring a boy, he was happy when the girls, Jahanna and Taeja, were born on March 27, 2009, and was with Leavitt in the operating room when she had her cesarean section.

Before the babies were born, Leavitt moved to the home of her mother, Dianna Gagnon, who lived with her boy friend and Leavitt's teenaged siblings in Woburn. The defendant visited nearly every day and generally stayed overnight after the twins were born. The defendant shared the responsibilities of child care with Leavitt; he fed, changed, and played with the twins daily. When the twins were approximately five months old, Leavitt found a job at a restaurant, working several nights a week from between 4 and 5 p.m. to between 9 p.m. and midnight, and during that time the defendant, Leavitt's mother, or the defendant's mother or sister cared for the twins. In September, 2009, Leavitt and the twins moved to a townhouse apartment in Woburn, and the defendant lived there with them.

The defendant was inexperienced in caring for babies, but he sought advice regarding child care from Leavitt and Gagnon. No witness ever saw him spank or abuse the twins, but at times, he patted the twins too roughly while trying to burp them and on a few occasions walked away from the changing table while he was changing them. He was responsive to criticism, however, when other caretakers instructed him how better to care for the twins. Jahanna was the fussier baby, and the defendant was more comfortable caring for Taeja than he was caring for Jahanna. But when Jahanna was colicky, the defendant sometimes would pick her up and walk around and talk with her. Gagnon described the defendant as a man of quiet demeanor whom she never saw angry and never heard shout, and whom she never saw hit or grab anyone.

There were no complications regarding the twins' birth, but Jahanna soon developed various health problems. She was “cranky,” cried often, and was difficult to feed. When Jahanna was approximately two months old, her primary care pediatrician, Dr. Elizabeth Burba, placed her on a more gentle formula. Nine days later, Leavitt telephoned the doctor's office and reported that Jahanna had vomited blood. She was referred to the emergency room at Winchester Hospital, where she was diagnosed with gastro-esophageal reflux and was prescribed antacid medication. Dr. Burba noted at Jahanna's three-month “well visit” that she was “taking her feeds now” and gaining weight. Leavitt discontinued using the medication after “a couple of months” because Jahanna was doing well. When Jahanna was approximately four months old, Leavitt noticed that one of her legs “would kind of be limp.” She testified, “I would hold her up and one leg would be touching the ground and one would be in the air, like a bend in the knee.” Leavitt took Jahanna to Dr. Burba's office, where she was diagnosed with a “hip click.” She was given a hip ultrasound, which was normal. On September 29, 2009, Leavitt reported that Jahanna had again vomited blood, and returned to the Winchester Hospital emergency room, where she was given an abdominal x-ray, which was normal, and once again was prescribed the antacid medication. At her six-month “well-visit” on October 2, Jahanna was “no longer fussy or irritable,” and her “gross motor development examination,” which showed that she could roll over from side to side, move objects from one hand to another, and sit up with a bit of support, was normal for her age. During her care of Jahanna, Dr. Burba saw no sign that Jahanna had been abused.

On October 20, 2009, Leavitt was at work and the defendant was alone in her Woburn apartment caring for the twins. At approximately 8:45 p.m., Robert Jeffrey, who lived next door with his wife, Eileen, knocked on the door to Leavitt's apartment, which was slightly ajar, and asked the defendant for a cigarette. He saw the defendant sitting on the couch in the living room feeding Jahanna, with Taeja sitting in “a little bouncy thing” on the floor. Their demeanor appeared “good”; Jahanna “was just whining like she was hungry.” The defendant said he did not have any cigarettes, so Robert³ drove to a nearby gasoline station, approximately four minutes away. When Robert parked in front of his apartment, about ten minutes later, the defendant ran over, looking “[v]ery shooken up,” and asked to use Robert's telephone to call his girl friend because something had happened to one of the babies. Eileen, who was a certified nurse assistant, was walking towards Robert from the steps of the Jeffrey home when Robert returned. She heard the defendant say that the baby fell, and when Eileen asked if she was okay, the defendant said he did not know. She then immediately walked into the defendant's apartment and saw Jahanna on the couch. Jahanna was pale and unresponsive, and her eyes were closed. Robert then drove the defendant and Jahanna to the emergency room at Winchester Hospital.

At trial, Eileen testified that she was sitting at her computer on the first floor of her apartment when Robert left to find cigarettes, and she went outside when she heard him returning. Although the walls between her apartment and the Leavitt apartment were thin, and she could often hear noises coming from the Leavitt apartment, Eileen heard no banging or other noise during the time that Robert was gone.

Jahanna arrived in the emergency room of Winchester Hospital at approximately 9:18 p.m. Dr. Atima Delaney, the attending pediatric physician in the emergency room who treated Jahanna, obtained a medical history of Jahanna from the defendant that evening. Dr. Delaney described the defendant as “worried and quiet.” The defendant told Dr. Delaney that he had been sitting on the couch while Jahanna had been lying on the couch. When he turned around to grab a bottle, Jahanna fell off the couch. When he turned back, he saw the baby lying on her back on the hardwood floor. She immediately vomited, and then became unconscious.

A computerized tomography (CT) scan taken at Winchester Hospital revealed a large subdural hematoma (a collection of blood between the dura⁴ and the brain), brain swelling, and a comminuted skull fracture located in the left parietal skull.⁵ The CT scan also showed a “midline shift,” meaning that one side of the brain had started to push over to the other side because of the brain swelling. Because of the severity of Jahanna's injuries, she was transferred to Children's Hospital, where a pediatric neurosurgeon, Dr. Mark Proctor, performed emergency brain surgery. When he opened the dura inside the skull to relieve the brain swelling, the fluid, including clotted blood, was under such high pressure that it “squirted up about one and a half to two feet.” The presence of clotted blood revealed that the injury had happened “within hours.” Dr. Proctor did not see extensive injury to the brain itself, ...