Commw. V. Azar

• Decision Date: 23 January 2002
• Docket Number: SJC-08553
• Citation: 435 Mass. 675
• Parties: COMMONWEALTH vs. DAVID M. AZAR. Docket No.:SUPREME COURT OF THE STATE OF MASSACHUSETTS
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

COMMONWEALTH vs DAVID M. AZAR

Docket No.: SJC-08553

SUPREME COURT OF THE STATE OF MASSACHUSETTS

October 1, 2001.

January 23, 2002

County: Middlesex.

Summary: Homicide. Malice. Practice, Criminal, Instructions to jury, Assistance of counsel, New trial. Constitutional Law, Assistance of counsel.

Richard J. Fallon (Elizabeth A. Keeley, Assistant District Attorney, with her) for the defendant.

Marguerite T. Grant, Assistant District Attorney, for the Commonwealth.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Indictment found and returned in the Superior Court Department on December 15, 1988.

Following review by the Appeals Court, 32 Mass. App. Ct. 290 (1992), a motion for a new trial, filed on November 11, 1998, was heard by Hiller B. Zobel, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

MARSHALL, C.J.

When a criminal defendant's conviction has been affirmed on direct appeal and the defendant thereafter moves for a new trial, raising for the first time an issue that could have been raised at the trial or on appeal, interests of finality and the fair and efficient administration of justice must be weighed in addition to "the ever-present concern that justice not miscarry for the defendant." Commonwealth v. Curtis, 417 Mass. 619, 623 (1994). Our recent opinions, in particular, have described "society's justified interest in finality that has long been implicit, and sometimes explicit, in our announcements that any late-arriving issue will prevail only if the issue presents a substantial risk of a miscarriage of justice" (emphasis in original). Commonwealth v. LeFave, 430 Mass. 169, 175 (1999). We hold in this case that the judge's erroneous instructions to the jury on a contested element of the crime charged did create a substantial risk of a miscarriage of justice, and that a new trial is therefore required.

Procedural history. The defendant was tried in 1989 on an indictment charging murder in the first degree on a theory of extreme atrocity or cruelty. The alleged victim was his infant daughter. He was convicted of murder in the second degree. His conviction was affirmed on appeal. Commonwealth v. Azar, 32 Mass. App. Ct. 290 (1992). He was represented by the same counsel both at trial and on appeal.

In 1998, the defendant filed his first postappeal motion for a new trial, challenging the judge's instructions to the jury on the so-called third prong of malice. Specifically, he alleged that the instructions incorrectly included grievous bodily harm language in the definition of the third prong of malice, and that his trial counsel was ineffective in failing to object to that error. The defendant had not raised this issue previously. The trial judge, without a hearing, made a ruling that, in effect, denied the motion.¹ The defendant appealed, and the Appeals Court reversed and ordered a new trial. Commonwealth v. Azar, 50 Mass. App. Ct. 767 (2001). We granted the Commonwealth's application for further appellate review.

Summary of pertinent evidence. In November, 1988, the defendant resided with his wife and their three children in Sudbury. The oldest child was twenty-one months old. The alleged victim and her twin brother were approximately four months old.

The defendant was at home with the children on the morning of Sunday, November 27, when the events occurred that gave rise to this prosecution. His wife was working at the family's store in Cambridge. There was evidence that, in the late morning, the defendant telephoned her to report that there was a problem with their daughter, who appeared not to be breathing. His wife telephoned her sister and parents, who lived in Wayland. In response, they traveled to the Azars' home in Sudbury where they found the child lying motionless in her crib. Emergency help was summoned. The wife's sister, the chief of the Sudbury fire department, and an emergency medical technician all attempted unsuccessfully to resuscitate the child.

It is undisputed that the child somehow suffered a variety of physical injuries, both on the morning of November 27 and earlier, which we shall describe. There was conflicting evidence presented at trial, however, as to the precise nature and extent of her injuries, and as to how they may have occurred. The Commonwealth's evidence tended to demonstrate that her injuries were severe, and that they had been intentionally inflicted by the defendant. The defendant's evidence tended to establish that the injuries were somewhat less severe than the Commonwealth claimed, and, in any event, had been caused accidentally.

The defendant testified as follows. During the morning of November 27, his daughter fell asleep, and he placed her in her crib. A short time later, he checked on her because he thought that he had heard noises coming from the crib. He found her lying "very still" and picked her up. The child was "limp." The defendant testified that he "blew in her face to try to get a reaction out of her, [but] there was no reaction at all." He "shook her and started screaming her name." He "grabbed her around the neck," opened her mouth, and "blew in her mouth." The child "jumped" and "opened her eyes very startled." The defendant testified that he "was really panicked" at this point. Holding the child tightly against his shoulder, he ran to the telephone in the kitchen to call his wife. As he reached for the telephone, his daughter flew out of his arms and hit her head on the kitchen counter top. The defendant then called his wife at their store and told her that the child "wasn't breathing" and that he needed some help. The child was making "gasping" noises, and the defendant "was pushing up and down on her chest" in an attempt to resuscitate her.

According to the defendant, his daughter began breathing again. He told his wife that he "needed help" and "wanted to take care of" their daughter. She replied that she would telephone him back, which she did approximately twenty minutes later. She told him that she had telephoned her sister and parents, and that "they were going to come over and help [him]." About ten minutes later, the defendant placed his daughter back in her crib so that he could attend to the other two children, who were "acting up." That is where the defendant's in-laws found the child when they arrived.

An autopsy revealed that the child had several relatively fresh bruises under her chin and on her chest, upper back, and left buttock, and a "somewhat star-shaped reddish discoloration" above her left ankle. Five ribs were fractured but showed signs of healing, indicating that the fractures had occurred one to six weeks before November 27. The child also had fractures on her leg bones. None of these injuries caused the child's death.

The autopsy also revealed pinkish discoloration on the right side of the child's head, hemorrhaging and fresh bruising under the scalp, an accumulation of at least one-quarter inch of blood in an area measuring five by six inches, and a four-inch C-shaped fracture on the right side of her skull. The medical examiner who performed the autopsy, Dr. Joann Richmond, testified that, in her opinion, these injuries were caused by "a very severe force, such as being hit on a very broad, flat surface, or being hit with something that had a broad flat surface." There also was evidence that the child's brain was swollen and flattened, although the degree of the swelling was disputed. Dr. Richmond testified that the brain was moderately swollen, and that the swelling was "a result of a severe injury to the head." There was no evidence of any injury to the brain other than swelling. The medical examiner characterized the child as "a battered child who died of violent trauma to the head and brain."

Considering the child's head injuries and the star-shaped discoloration above the left ankle, Dr. Richmond theorized that the child had been "held tightly around the legs above the ankles . . . and . . . swung with a force to strike an object on the right side of her head." Specifically, she testified that the injuries were consistent with the child's head having been swung into a wall, a headboard of a bed, or a counter top. She likened the amount of force needed to cause these injuries to the force that occurs when a child falls from a second-story window and onto her head, or is forcibly propelled into a dashboard in an automobile accident.

In addition to the medical examiner's testimony, the Commonwealth also presented medical testimony from a pediatric radiologist, Dr. Paul Kleinman, who was qualified as an expert on child abuse. He stated that the various fractures on the child's leg bones were "a result of a severe, massive degree of force being applied, either as a child is gripped by the extremities, or as the child is held by the chest and shaken." He stated that the rib fractures occurred "as the chest was being compressed in a severe fashion." "[B]ased purely upon evaluation of the x-rays," Dr. Kleinman testified that the child's rib and leg fractures were indicative of battered child syndrome.

The Commonwealth's medical evidence was disputed by two forensic pathologists presented by the defense: Dr. William Sturner, chief medical examiner for the State of Rhode Island and a professor of pathology at Brown University, and Dr. Michael Baden, director of forensic sciences for the New York State police, who had served as a medical examiner for many years in the New York City medical examiner's office. Dr. Sturner testified that, in his opinion, the child's skull fracture was caused by a moderate amount of trauma, not the severe trauma suggested by the Commonwealth's medical examiner. Severe trauma, he explained, would have resulted in injuries (other than swelling) to the child's brain, which did not occur in this case. Contrary to the Commonwealth's evidence, he testified, the child's...