Commonwealth v. Roderiques

• Decision Date: 04 June 2012
• Docket Number: SJC–10950.
• Citation: 462 Mass. 415,968 N.E.2d 908
• Parties: COMMONWEALTH v. Elizabeth RODERIQUES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 415

968 N.E.2d 908

COMMONWEALTH

v.Elizabeth RODERIQUES.

SJC–10950.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Feb. 7, 2012.

Decided June 4, 2012.

Colleen A. Tynan for the defendant.

Tara L. Blackman, Assistant District Attorney (Kristen L. Spooner, Assistant District Attorney, with her) for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, & GANTS, JJ.

CORDY, J.

During the night of December 23–24, 2003, the defendant's infant son suffered fractures to his right upper arm, clavicle, ribs, vertebrae, both femurs, and his right lower leg. The only people present in the apartment aside from the infant were the defendant and the defendant's boy friend, Shawn Cambra.

A Bristol County grand jury returned two indictments against the defendant. The first charged her with committing an assault and battery on a child under fourteen years of age causing substantial bodily injury. G.L. c. 265, § 13J ( b ), second par. The second charged her with wantonly and recklessly permitting an assault and battery on a child that caused the child substantial bodily injury. G.L. c. 265, § 13J ( b ), fourth par. At defense counsel's request and with the Commonwealth's eventual agreement, the judge instructed the jury that they could consider whether the defendant recklessly endangered her child in violation of G.L. c. 265, § 13L, as a lesser included offense of the offense charged in the second indictment. The jury acquitted the defendant of the offenses charged in the indictments but found her guilty of the lesser included offense.

The defendant filed a motion to vacate the conviction, claiming that the crime of reckless endangerment of a child was not a lesser included offense and that the jury instruction to the contrary that her counsel had requested should not have been given. The judge denied the motion. The defendant appealed, reasserting this claim of error, and also claiming that the Commonwealth's expert witness at trial impermissibly offered an opinion on the ultimate issue in the case.

A divided panel of the Appeals Court affirmed the conviction. Commonwealth v. Roderiques, 78 Mass.App.Ct. 515, 940 N.E.2d 1234 (2011). The court found it unnecessary to decide whether reckless endangerment of a child is a lesser included offense of recklessly permitting an assault and battery on a child, concluding that even if the judge erred by giving the instruction, the defendant invited the error. While inclined to apply the “invited error doctrine” and forgo review entirely, the Appeals Court went on to consider whether the instruction, if error, created a substantial risk of a miscarriage of justice. The court concluded that it did not because the evidence was sufficient to convict the defendant of the greater offense. Id. at 519–521, 940 N.E.2d 1234. The court further found that the judge did not abuse his discretion by allowing admission of the expert's testimony. Id. at 522, 940 N.E.2d 1234. The dissent questioned both the court's invocation of the invited error doctrine and its conclusion that no substantial risk of miscarriage of justice was present. Id. at 522–524, 940 N.E.2d 1234 (Graham, J., dissenting). We granted the defendant's application for further appellate review. We now affirm the conviction on somewhat different grounds.

1. Background. We summarize the evidence before the jury. In December, 2003, the defendant, aged seventeen, lived in a New Bedford apartment with her infant son, then seven weeks old, and Cambra. The apartment contained five rooms—a living room, kitchen, bathroom, and two bedrooms. The front door of the apartment led into the living room, through which the other rooms were accessed. The defendant's father, Rene Roderiques, was then living with his girl friend and her daughter at another location in New Bedford. Rene kept in contact with the defendant, stopped by the apartment almost daily, and would drive the defendant anywhere she needed to go.

On the afternoon of December 23, 2003, Rene and the defendant took the infant to the pediatrician, because the infant was displaying flu-like symptoms and had kept the defendant awake throughout the previous night. The doctor gave the baby an electrolyte solution and advised the defendant to administer more to the infant that night. Apart from the flu symptoms and a small bruise on his cheek, nothing out of the ordinary about the infant was observed during the visit. The defendant returned to the apartment, and she and Cambra were the only people to have contact with the baby that night.

The defendant put the infant to sleep on one of the recliner chairs in the living room. She and Cambra slept on the pull-out sofa bed, with their heads at its foot, right next to the infant's recliner. The defendant, who described herself as a heavy sleeper, explained that she wished to ensure that she would hear the baby if he stirred. When the sofa bed was extended, it touched the recliner on which the baby slept, thereby bisecting the room. Cambra slept on the side of the sofa bed that was oriented toward the apartment's front door, and the defendant slept on the side from which the rest of the apartment could be accessed. The defendant got up to feed and change the baby a few times during the night, the last of which was around 6 a.m.

At approximately 9 a.m., the defendant woke up with Cambra still sleeping beside her and the baby still asleep on the recliner. She began to dress the baby, who had a 10 a.m. doctor's appointment for an unrelated condition. It was at that point that Cambra alerted the defendant to a large bruise extending all the way around the infant's right arm. The defendant telephoned her father and, in a hysterical voice, told him that the infant's arm had been dislocated. Rene and his girl friend's daughter arrived shortly thereafter. They discovered the infant lying on a bed crying, with Cambra sitting beside him. The infant's arm was bent and red. They rushed him to a local hospital where he was examined and later flown to Children's Hospital in Boston.

Two New Bedford police detectives observed the baby at the hospital in New Bedford. One of them testified that the baby had a big red bruise on his upper right arm, a bruise on his nose, a bruise forming on his left cheek which extended to his ear, and bruising on the abdomen and upper thighs. The baby was not crying and not in visible distress. When the infant was finally examined at Children's Hospital, doctors discovered that he had suffered a fracture of the right upper arm, multiple fractures to both legs, rib fractures, a compression fracture of the spine, and a fractured clavicle.

The defendant was interviewed at the New Bedford hospital by Detective Eric Swenson of the State police and by an investigator with the Department of Social Services. She initially stated that she had slept in her bed that night and that the baby had slept in his bassinet. She had fed the baby at 2 a.m. and 6 a.m., discovering nothing amiss, and had otherwise not heard the baby cry or scream that night. When Detective Swenson asked her whether she knew who injured the baby, she responded with “[s]omething to the effect of, ‘It wasn't me. It must have been [Cambra].’ ” She further admitted to yelling sometimes at the baby, and that particularly throughout the night of December 23 and 24 Cambra had been yelling at the baby to stop crying.

The defendant agreed to go to the police station, where she was interviewed by Swenson a second time. This time, she changed her story and admitted that she had slept on the sofa bed with Cambra and that the baby had slept on the recliner. She had been afraid to admit that before because her father, who was present at the hospital, would have been upset that the baby was not sleeping in his bassinet.

Cambra was also interviewed at the police station. Cambra told the police that the defendant must have hurt the baby because he had not. Cambra also related that on December 23 he had been playing “air drums” with the baby, a maneuver in which he grabbed the infant's arms and waved them around in the air as if the baby were playing drums. In regards to that night, Cambra stated that he and the defendant slept on the sofa bed and the baby slept on the recliner. He also said that, because he slept on the portion of the sofa bed oriented toward the apartment's front door, it would be necessary to step on the recliner if he wanted to access the bathroom. Cambra did recall getting up to use the bathroom or get a drink of water, and claimed that it was possible that he had stepped on the baby, though he did not think that had happened. He claimed, however, to have some medical conditions that might have caused him to black out and lose consciousness at some point.

Both the Commonwealth and the defendant introduced expert testimony concerning the extent and causes of the baby's injuries. Dr. Jennifer Denton, one of the doctors who evaluated the baby at Children's Hospital, testified on behalf of the Commonwealth. She explained that the baby's injuries were usually produced through various mechanisms. The break in the lower right leg was a so-called “bucket handle fracture,” produced by a forceful pulling or twisting at the end of the limb and a frequent component of what is known as “shaken baby” syndrome. The compression fracture to the spine was produced by a force that traveled along the spine vertically, such as the force generated when a child is slammed down on his buttocks. The remaining fractures were the product of general trauma; in particular, the broken right femur was a very unusual break, which could not have been done without significant force, even to an infant. These injuries would have been painful to the baby, and he would have cried and been difficult to console.

Denton concluded that, in her opinion, the baby had not suffered “accidental injuries.” In her view, someone stepping on the baby while he slept in the...