Opinion
14-P-118
07-17-2015
COMMONWEALTH v. KELLY O'BRIEN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of two counts of assault and battery on a child causing substantial bodily injury and one count of reckless endangerment of a child. The charges stemmed from an episode in which the victim, a four year old boy, was badly burned on his arms with a hot hair straightener. On appeal, the defendant argues that (1) the judge erred in allowing a physician from the victim's treatment team to testify as both an expert and a percipient witness, and (2) the judge's failure to give a specific unanimity instruction to the jury in connection with the charge of reckless endangerment created a substantial risk of a miscarriage of justice. He contends also that the evidence was insufficient to prove reckless endangerment under either theory presented. We affirm.
The jury acquitted the defendant on two counts of assault and battery.
Background. The victim, whom we shall call Tom, was three and one-half years old when the Department of Children and Families (DCF) placed him in the care of the defendant and her boyfriend, John Levreault. At that time, three additional children were living in the home, one of the three, like Tom, was a foster child. On the evening of January 18, 2009, while changing Tom into his pajamas, Levreault noticed that Tom had burns on both of his arms and took him to the hospital. Tom had suffered second- and third-degree burns on the front and back of his upper arms. The tips of his fingers were also burned. After an initial assessment, Tom was transferred to Hasbro Children's Hospital (Hasbro) in Rhode Island, where he remained for approximately one month.
At the time of the incident the other children living in the home were two years old, four years old, and nine years old. The two year old was the only biological child of both the defendant and Levreault.
The burns on Tom's right arm were so severe that he required skin grafting.
Upon his arrival at Hasbro, Tom was seen by Dr. Christine Barron, the director of the Child Protection Program. Dr. Barron observed Tom's injuries and conducted what she described as a "minimal facts interview" during which Tom said that he had burned himself with a hair straightener "because he wanted to see what it felt like." However, when Tom was discharged and went to live with a new foster family, he revealed that the defendant had burned him by squeezing the hair straightener on both of his arms. At trial, Tom testified that the defendant had burned him and that both the defendant and Levreault had physically abused him on previous occasions.
Tom testified that the defendant had punched him in the face, thrown him on the floor, and given him a bloody nose. He also stated that Levreault had duct taped him to a cabinet and hit him with a belt.
Like Tom, the defendant, who arrived at Hasbro in the ambulance with Tom, was interviewed by Dr. Barron. At that time, Dr. Barron believed that the defendant was Tom's biological mother, and she asked the defendant how Tom had been injured. The defendant relayed that Tom had touched her hair straighter, which she had unplugged and left on the sink in the bathroom to cool. According to the defendant, Tom showed her two blisters on his left hand, which she bandaged. Around bedtime, Tom began to cry and complain that his arms were hurting him. The defendant saw the burns when Levreault changed Tom into his pajamas, after which Levreault brought Tom to the hospital. The defendant also stated that Tom had not engaged in self-injurious behavior in the past.
Discussion. 1. Dr. Barron's testimony. At trial, Dr. Barron testified about her observations of Tom's condition, including the nature of his injuries, and also opined that the burns on Tom's arms were not self-inflicted. For the first time on appeal, the defendant contends that by testifying as both a percipient and an expert witness, Dr. Barron implicitly vouched for Tom's credibility. We discern no error, let alone a substantial risk of a miscarriage of justice.
Defense counsel objected to Dr. Barron's qualifications as an expert but not on the ground that her testimony constituted improper vouching. Thus, the issue advanced on appeal was not preserved.
Our cases hold that although the "line between specific observations and expert generalizations" is easily blurred, Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 579 (1998), so long as the expert's testimony is explanatory and serves some "educative function," id. at 581, it is admissible. See id. at 579-581. In this case, expert testimony was proper because it served to help the jurors "interpret evidence that lies outside of common experience." Id. at 581. Dr. Barron explained that when "a heat source comes near the skin," the body reflexively withdraws from that heat source, and that in this case, the victim's deep and rectangular shaped burns were inconsistent with this reflexive response. This testimony was within the bounds of permissible expert testimony. Moreover, Dr. Barron did not comment on Tom's truthfulness. Rather, as noted, she reported her observations and testified, based on her extensive training and experience, that Tom's burns were not consistent with self-inflicted injuries.
Commonwealth v. Velazquez, 78 Mass. App. Ct. 660, 667 (2011), upon which the defendant relies, is distinguishable. In that case, we concluded that the expert's testimony, which was based in part on the victim's statements to her, could be "construed as impliedly supporting the truthfulness" of the victim's sexual abuse allegation. Id. at 667-668. Here, by contrast, Dr. Barron did not rely on Tom's statements in reaching her conclusion that the burns were not consistent with self-inflicted injuries. In fact, Tom's statements to Dr. Barron were that he burned himself. See also Commonwealth v. Colin C., 419 Mass. 54, 61 (1994) (improper vouching where expert testified that victim was sexually abused "based in large part on [the victim's] statements to her").
Dr. Barron also testified about the defendant's version of events as the defendant conveyed it to her during the interview she conducted at the hospital. Although the defendant did not object at trial, she now argues that Dr. Barron's testimony about her statements was improper because it had the effect of vouching for the Commonwealth's theory of the case, namely, that the defendant (and not Tom) had caused the burns. This claim is without merit. There is no question that the defendant's statements were admissible, see Mass. G. Evid. § 801(d)(2)(A) (2015), and the record is devoid of any suggestion that Dr. Barron expressed an opinion on the defendant's guilt or innocence. Rather, she merely recounted the defendant's statements, leaving the weighing of the evidence to the jury. See Commonwealth v. Colin C., 459 Mass. 54, 59-60 (1994).
We reject, as unsupported by the record, the contention that Dr. Barron's testimony that she informed the defendant that she would be reporting the case to DCF amounted to improper vouching. Cf. Commonwealth v. Stuckich, 450 Mass. 449, 456 (2008) (evidence that mandated reporter believed victim's allegations "and filed a § 51A report with DSS" violated the first complaint doctrine and amounted to improper vouching).
2. Specific unanimity instruction. The defendant also argues that the judge was required, sua sponte, to give a specific unanimity instruction as to the theory upon which the jury found the defendant guilty on the charge of reckless endangerment. This claim was not preserved and, therefore, our review is limited to whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Arias, 78 Mass. App. Ct. 429, 431 (2010). The defendant contends that she suffered such a risk because the evidence did not support a conviction under either theory. The Commonwealth maintains that because no specific unanimity instruction was required, there was no error and therefore no substantial risk of a miscarriage of justice.
Generally, the absence of a specific unanimity instruction is significant in circumstances where the evidence could permit the jury to convict under only one theory. Here, the defendant's argument, while cast as a challenge to the absence of a jury instruction, is essentially a challenge to the sufficiency of the evidence.
As regards the charge of reckless endangerment, the Commonwealth proceeded on two different theories of liability: the Commonwealth alleged that the defendant was reckless in leaving a hot hair straightener accessible to a four year old child, and in failing to obtain prompt medical attention. The jury were instructed on both theories, and they returned a general verdict.
The judge instructed as follows: "The allegation here is that the defendant created a substantial risk of harm to [Tom] either in allowing [Tom] access to the hair straightener, or in failing to obtain prompt medical care. That's the reckless endangerment charge."
In Commonwealth v. Santos, 440 Mass. 281, 284-285 (2003), the Supreme Judicial Court explained that a specific unanimity instruction is called for "when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged." "However, if the offense is alleged to have been committed as part of a single episode, there is no such risk of juror confusion and no specific unanimity instruction need be given." Id. at 285.
Although we agree with the defendant that each theory represented a separate, distinct, albeit related, way in which she allegedly committed the offense of reckless endangerment, and assuming, without deciding, that a specific unanimity instruction, if requested, should have been given, the defendant is not entitled to a new trial, because the evidence was sufficient to permit the jury to convict under either theory. Commonwealth v. Erazo, 63 Mass. App. Ct. 624, 630 (2005).
The defendant admitted that she knew Tom liked to play with the hair straightener and that she had told him not to play with it in the past. Moreover, contrary to the defendant's assertion, a reasonable trier of fact could reasonably conclude that the defendant acted wantonly and recklessly when she left the hot iron in a place where a young child could easily reach it. There was also sufficient evidence from which the jury could infer that the defendant knew about the burns on Tom's arms and failed to seek prompt medical attention. Specifically, the evidence demonstrated that the defendant burned Tom with the hot iron and that it was only after Levreault discovered the burns, between eight and twenty-four hours later, that Tom was taken to the hospital. It is of no consequence, despite the defendant's claim, that there was no specific evidence that the delay in obtaining medical care worsened Tom's condition. "[T]he crime of reckless endangerment does not require proof of injury, only proof of a substantial risk of injury (emphasis supplied)." Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 261 (2013) (Figueroa). See Commonwealth v. Hendricks, 452 Mass. 97, 103 (2008) (for crime of reckless endangerment, Commonwealth need only prove that taking a child on a "high-speed nighttime chase" created a "substantial and unjustifiable risk" of serious bodily injury). We have no doubt that a "person of common intelligence would understand that" the failure to seek medical treatment for a period of time ranging from eight to twenty-four hours for a four year old child with second- and third-degree burns could cause serious bodily injury. See Figueroa, 83 Mass. App. Ct. at 260.
Judgments affirmed.
By the Court (Vuono, Milkey & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 17, 2015.