Commonwealth v. Peno
| Decision Date | 10 August 2020 |
| Docket Number | SJC-12464 |
| Citation | 485 Mass. 378,150 N.E.3d 314 |
| Parties | COMMONWEALTH v. Kimberly PENO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert F. Shaw, Jr., Cambridge, for the defendant.
Erica G. Sylvia, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Kafker, JJ.
In the early morning hours of March 18, 2010, Joseph Peno and his wife rushed their two year old child, Timothy, to the fire and rescue center in Seekonk, Rhode Island. He had visible facial injuries and was not moving. Doctors at the hospital where Timothy was transported discovered that he had been severely beaten and had suffered a traumatic brain injury. He died two days later. Timothy's mother, the defendant, was charged with murder in the first degree in his death. His father pleaded guilty to child endangerment, under an agreement to receive a term of probation in exchange for his testimony at the defendant's trial. After an eight-day trial, the defendant was convicted of murder in the first degree on a theory of extreme atrocity or cruelty, and now appeals from her conviction.
The defendant argues that the Commonwealth secured the conviction by improperly portraying her as a bad mother. She maintains that much of the Commonwealth's evidence served only to inflame the jury's emotions and to turn them against her, and that the Commonwealth misused this evidence to argue that she, and not her husband, was the kind of person who could kill her own child. In the alternative, in the interests of justice, the defendant asks us to use our authority under G. L. c. 278, § 33E, to reduce the verdict or to order a new trial.
We agree that some of the evidence of the defendant's prior conduct, and of Timothy's struggles early in life, should not have been admitted, and that the prosecutor's closing at times crossed the line into impermissible argument. These errors, however, when weighed against the otherwise strong evidence of the defendant's guilt, do not require a new trial. Nor do we conclude that we should use our extraordinary powers to reduce the degree of guilt. Accordingly, we affirm.
1. Background. We recite the facts the jury could have found, in the light most favorable to the Commonwealth, reserving a more detailed recitation of the challenged evidence for further discussion.
a. Relationship between the defendant and Timothy. Timothy was born to the defendant and Joseph Peno1 in October of 2007. At birth, he was diagnosed with fetal alcohol syndrome and addiction to cocaine. Accordingly, the Department of Children and Families (department) took temporary custody. For the first eighteen months of his life, Timothy lived with a foster mother. To address certain developmental issues associated with fetal alcohol syndrome, he received physical, social, and speech therapy. The department also assigned Timothy an early intervention social worker to provide him with additional support.
Approximately one month after Timothy was born, the defendant learned that she was pregnant again. During this pregnancy, she was monitored by the department and was required to undergo addiction counselling. At some point during this pregnancy with their second son, Collin,2 Joseph and the defendant were married.
Joseph and the defendant had multiple supervised visits with Timothy while he was in the foster mother's custody. The social worker who observed the visits noted that the defendant struggled to soothe Timothy, became frustrated quickly, and then would hand Timothy to Joseph.
The Penos began the process of reunification with Timothy during the summer of 2009. At the same time, in August of 2009, the social worker noted that Timothy was beginning to regress from spoken words to gestures. Shortly thereafter, the defendant asked that the social worker stop visiting. The defendant terminated departmental services because she no longer wanted outsiders in her home. Joseph also did not feel that Timothy had the developmental issues that the department reported and did not want the department involved any further in his family's life. The Penos were granted full custody of Timothy in October of 2009. Early in March of 2010, the defendant learned that she was pregnant again. She was torn between raising the child herself and giving it up for adoption.
b. Timothy's death. Approximately one week before Timothy's death, to make it easier to clean and maintain the household, the Peno family began sleeping together in their finished basement. On March 17, 2010, the family drove to multiple locations so that the defendant could purchase alcohol and cocaine. When the family returned home, the defendant went to the basement with Timothy, while Joseph stayed upstairs with Collin to cook dinner.
At approximately 10 P.M. , the defendant asked Joseph to go out for more alcohol. He responded that the liquor stores would be closed. Nonetheless, around 11 P.M. , the defendant put Timothy and Collin in the family vehicle, roused Joseph from a nap, and told him to drive her to a store. When they got to the corner, she changed her mind and asked Joseph to drive them home. Timothy and the defendant went upstairs and headed toward the master bedroom, while Joseph returned to the couch, with Collin lying on the floor next to him; Collin was "doing fine where he was," and Joseph did not think to put him in his crib upstairs. Joseph heard the defendant tell Timothy to "go to bed," and then quickly fell asleep.
A short time later, Joseph woke to what sounded like "a muffler," or like Timothy's muffled voice coming from the basement. Joseph ran downstairs to the playroom door, where he was met by the defendant, who had blood on her mouth. Joseph asked her what had happened, and she replied that Timothy had bitten her. Joseph returned upstairs to get Collin, who was sleeping, and headed downstairs again. He encountered the defendant, who was coming up the stairs carrying Timothy. He again asked her what had happened, and the defendant said that she would "take care of it." Joseph continued into the basement to "check[ ] out the room," and saw spots of blood on the floor. He put Collin down on the floor near a couch and began to clean up the blood.
A few minutes later, Joseph heard the defendant yelling from upstairs. He went upstairs, carrying Collin, and found the defendant in the hallway attempting to give Timothy mouth-to-mouth resuscitation. Both Timothy and the defendant had blood on their shirts. The defendant asked Joseph several times to telephone 911. Instead, Joseph decided that she should change Timothy's clothes and then he would drive them to the Seekonk fire and rescue center. Joseph thought this would be faster, because he was not sure where to find the handset to the landline telephone and the fire and rescue center was "just down the street" from the Penos' house. After placing Timothy on the bed, Joseph noticed that Timothy's face was red and his nose was bleeding; Timothy then threw up on the bed. Joseph decided not to attempt to change Timothy's clothes, and instead grabbed a blanket to wrap around him. Joseph then put Timothy in the front seat of his vehicle; Timothy whimpered as he was put down. The defendant was at the top of the stairs, acting upset, while Collin had somehow gone downstairs. The defendant commented, "I'm going to do a lot of time for this." The defendant put Collin in the rear of the vehicle, and then sat in the front with Timothy in the middle between her and Joseph. During the three-minute drive, she picked him up and held him.
Shortly after 12:15 A.M. on March 18, 2010, the family arrived at the Seekonk fire and rescue center. The defendant banged on the front door and yelled that they needed assistance. She asked the officer at the front desk to come outside, without explaining the problem. Joseph carried Timothy into the center wrapped in a blanket. Timothy's face was visibly red, and his eyes were swollen shut. One of the police officers there telephoned 911 in order to alert paramedics. When asked what happened, Joseph said, "My wife had a breakdown."3
Paramedics were summoned to assess Timothy. Joseph seemed anxious, and said, "My wife, his mother ... can you help him?" A paramedic determined that Timothy had no pulse and was not breathing, and began performing cardiopulmonary resuscitation. Within minutes, Timothy was placed in an ambulance and driven to the hospital; Joseph accompanied him in the front of the ambulance.
When he arrived at the hospital, pediatricians observed that Timothy had serious injuries to his face, head, neck, chest and arms. Due to a lack of brain activity, the family ultimately decided to remove Timothy from life support, and he was pronounced dead. The cause of death was a traumatic brain injury. An autopsy later revealed lacerations that were consistent with Timothy having been punched in the face. He also had multiple skull fractures caused by blows to or compression of his head. The autopsy indicated that there had been at least five distinct traumatic injuries inflicted during a single event.
c. Investigation. While Timothy was en route to the hospital with Joseph, officers at the Seekonk fire and rescue center secured the Penos' vehicle and contacted the East Providence fire department to take charge of Collin. The defendant was escorted into the interview area. She appeared disheveled and "out of sorts." Her shirt had a brownish stain on the left shoulder, and her right hand was visibly swollen.
A detective and another officer interviewed the defendant. From the outset, the detective could detect an odor of alcohol coming from the defendant, who confirmed that she had drunk beer earlier that day. The defendant remarked that she did not want any more children. She also said that Timothy cried a lot, whereas Collin did not. She said that Joseph had been sleeping at the time of the incident, and that he was "always" sleeping.
Eventually, the...
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