Commonwealth v. Riley

• Citation: 7 N.E.3d 1060,467 Mass. 799
• Decision Date: 15 April 2014
• Docket Number: SJC–10974.
• Parties: COMMONWEALTH v. Michael RILEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 799

7 N.E.3d 1060

COMMONWEALTH

v.Michael RILEY.

SJC–10974.

Supreme Judicial Court of Massachusetts,

Plymouth.

Submitted Dec. 6, 2013.

Decided April 15, 2014.

Dennis Shedd, Lexington, for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Present: SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

BOTSFORD, J.

In 2007, a Plymouth County grand jury returned indictments charging the defendant and his wife, Carolyn Riley, ¹ with the murder of their four year old daughter, Rebecca. The defendant and Carolyn were tried separately in 2010. Carolyn was convicted of murder in the second degree; the defendant was convicted of murder in the first degree on a theory of extreme atrocity or cruelty.² Before us is the defendant's appeal from his conviction and from the denial of his motions for a new trial and for funds to retain a toxicologist. The defendant argues the following: (1) his trial counsel was ineffective in a number of respects; (2) his motion for a required finding of not guilty on the murder charge should have been allowed because there was insufficient evidence of malice; (3) the prosecutor improperly and excessively relied on evidence of the defendant's bad character that was unfairly prejudicial; and (4) the judge abused his discretion in denying the defendant's motion for a new trial without a hearing and the defendant's related posttrial motion for funds to retain a toxicologist. Last, the defendant asks us to use our power under G.L. c. 278, § 33E, to reduce his conviction to involuntary manslaughter. We affirm the defendant's judgment of conviction and the denial of his new trial motion and motion for funds, and we decline to reduce his conviction to a lesser degree of guilt.

1. Background. We summarize the facts as the jury could have found them, reserving certain details for our discussion of the issues raised. The defendant and Carolyn had three children: Gerard, aged eleven at the time of Rebecca's death on December 13, 2006; Kaitlynne, aged six; and Rebecca, aged four. At that time, the defendant, Carolyn, Gerard, and Kaitlynne were each receiving Social Security disability benefits.³

As of June, 2004, the family lived in Weymouth. In August, 2004, when Rebecca was a little over two years old, the defendant and Carolyn took Rebecca to Dr. Kayoko Kifuji, a child psychiatrist who was already treating Kaitlynne, ⁴ and complained to Dr. Kifuji that Rebecca was very hyperactive, hardly slept, and was violent toward her siblings. Dr. Kifuji diagnosed Rebecca with attention deficit hyperactivity disorder (ADHD) and prescribed her clonidine, a medication approved by the Food and Drug Administration (FDA) to treat high blood pressure in adults, but also used “off label” to treat ADHD in children. Approximately two months after Rebecca received her ADHD diagnosis, the defendant initiated a claim for Rebecca for Social Security disability benefits. It was denied. In May, 2005, the defendant and Carolyn took Rebecca back to Dr. Kifuji, who, based on the description of symptoms provided by Carolyn, diagnosed Rebecca, then aged three, with bipolar disorder; as she had for Kaitlynne, Dr. Kifuji prescribed Depakote for Rebecca. See note 4, supra. Thereafter, a request to reconsider the denial of benefits for Rebecca was filed with the Social Security Administration, but was again denied in July, 2005. In December, 2005, the defendant appealed the denial. The appeal had not been heard at the time of Rebecca's death.

In 2005, the family was living in a public housing development in Weymouth, and in December, 2005, the Weymouth housing authority directed that the defendant could not live there.⁵ The defendant moved in with his mother, who lived close by, saw and talked to Carolyn almost every day, and continued to drive Carolyn, Rebecca, and the other children to Rebecca's appointments with Dr. Kifuji.

In January of 2006, Rebecca began attending a preschool program. She showed signs of being overmedicated throughout the school year. She was lethargic, needed assistance on the stairs because she was very unsteady on her feet, and also needed assistance when getting off the school bus—someone would have to lift her physically out of her car seat. School personnel were so worried about Rebecca's appearance that they frequently took her to the nurse's office. Rebecca exhibited similar signs of overmedication when she returned to school in the fall of 2006, after a summer break.

The defendant moved back to live with his family between the end of November and early December of 2006. At this point the family was living in Hull; Carolyn's half-brother, James McGonnell, his girl friend, Kelly Williams, and her son also were living in the house. Whereas Carolyn used to keep all the Riley children's medication in the kitchen, once the defendant rejoined the family, medication was kept in his and Carolyn's bedroom. Additionally, the defendant directed control of when the children received their medication. He frequently yelled at Carolyn, “Give these fucking kids their medicine,” or “Shut the fucking kids up,” when the children appeared to be annoying him, and Carolyn would then administer the medication.⁶ Further, Carolyn, at the defendant's direction, began to give the children their nighttime medications earlier in the evening—between 5 and 6 p.m.—and Rebecca would fall asleep within one-half hour thereafter. She would sleep until around 6 a.m., then would be up for approximately one and one-half hours, be given her morning dose of clonidine, and go back to sleep until 11 a.m. or noon. As a consequence, Rebecca was sleeping between twelve and fifteen hours per day in the weeks leading up to her death. Those at school noted that Rebecca's condition progressively worsened in those weeks: she became even more lackadaisical, did not engage with the other children or staff members, and required an aide to sit behind her to prop up her body.

On her last day at school, Friday, December 8, 2006, Rebecca appeared to have a cold. The cold persisted on Saturday, and she developed a barking cough that sounded like a croup cough. Williams suggested to Carolyn that she might want to take Rebecca to a doctor. On Sunday, Rebecca did not eat anything and her cough was forcing her to vomit; she was given adult strength liquid cough medicine to suppress her cough. In light of these symptoms, Williams told the defendant and Carolyn that they should take Rebecca to see a doctor. Carolyn said that she would make an appointment, but did not do so.

On Monday morning, the defendant and Carolyn went to the Social Security office because the defendant was not receiving his disability benefit check. Rebecca vomited numerous times that day and appeared dazed as she wandered around the house. Williams again said that Rebecca should see a doctor, even offering to take Rebecca to the hospital emergency room herself. Carolyn told Williams that she had called the pediatrician and learned there were no more “sick visits” available for Monday, and that she would need to make an appointment for Tuesday. In fact, Carolyn had not called the pediatrician, and did not make an appointment for Tuesday.

On Tuesday morning, the defendant and Carolyn returned to the Social Security office. Rebecca was visibly worse on Tuesday; she was still feverish and was now also dazed and incoherent. She would walk down the hall without focusing on anything. Concerned for Rebecca's condition and angry at the defendant for not getting her medical attention, McGonnell threatened to hurt the defendant to the point where an ambulance would come and pick up the defendant and Rebecca. The defendant told McGonnell that it was none of his business because Rebecca was his child.

After that encounter, Rebecca walked to her parents' bedroom with a lack of focus in her eyes, knocked on the door, and called for her mother; the defendant answered the door and told Rebecca, “Go to your fucking room,” in an annoyed tone of voice. Rebecca went to her bedroom but returned to her parents' bedroom on two other occasions. Each time, the defendant yelled at her, did not allow her in the room, and sent her back to her own bedroom.

Around 6:30 p.m. that evening, the defendant and Carolyn left the house to take trash that had been piling up in the yard to Carolyn's mother's house. Before leaving, Rebecca had been given her nighttime medication. While Williams was watching Rebecca in the defendant's and Carolyn's absence, Rebecca walked down the hall toward her parents' bedroom, incoherent and unresponsive. Even when Rebecca's name was called, she did not respond; she looked “like a zombie.” When Williams picked her up, she was very cold and clammy but still was feverish; her body was limp, almost as though she were dead weight. The defendant and Carolyn returned hours later, and Williams, in a state of panic, told them that they needed to take Rebecca to a doctor immediately. She even suggested that they call an ambulance and noted that she had considered calling one herself.⁷ The defendant told Williams that Rebecca had an appointment with her pediatrician at 8 a.m. the next day; no appointment had been made. Carolyn then picked up Rebecca and returned her to the bedroom she shared with Kaitlynne. Around this time, Rebecca was given cough medicine and an extra tablet of clonidine.

At approximately 10 p.m., Rebecca again walked down the hall to her parents' bedroom. The defendant opened the door, grabbed Rebecca by the arm, turned her around, pushed her back toward her bedroom, and yelled, “Go to your fucking room.” Rebecca cried, calling for her mother and saying that she did not feel well. Rebecca kept returning to her parents' bedroom. After her parents turned Rebecca away from their bedroom several more times, McGonnell kicked the defendant's and Carolyn's door and, in a panicked tone, told them that they needed to call an ambulance. Williams...