Commonwealth v. LaBrie , 473 Mass. 754 ( 2016 )

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SJC-11836
COMMONWEALTH vs. KRISTEN A. LaBRIE.
Essex. November 2, 2015. - March 9, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Attempt. Homicide. Assault and Battery. Reckless Endangerment
of a Child. Intent. Evidence, Intent. Practice,
Criminal, Assistance of counsel.
Indictments found and returned in the Superior Court
Department on July 3, 2009.
The cases were tried before Richard E. Welch, III, J., and
a motion for a new trial, filed on June 6, 2013, was heard by
him.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Michelle Menken for the defendant.
Marcia H. Slingerland, Assistant District Attorney (Kate
Berrigan MacDougall, Assistant District Attorney, with her) for
the Commonwealth.
BOTSFORD, J. The defendant, Kristin LaBrie, was charged
with the attempted murder of her young son and related assault
2
and battery and child endangerment crimes. The Commonwealth
contends that the defendant, with the intent to kill her son,
did not give him prescribed chemotherapy and other medications
designed to treat the cancer from which he suffered and
ultimately died. At a trial before an Essex County jury, the
defendant was convicted on these charges; before us is her
appeal from these convictions and also from the denial of her
motion for a new trial. The defendant claims that her
conviction of attempted murder must be reversed because the
Commonwealth was required, and failed, to prove that the
substantive crime of murder was not achieved, and because the
judge's instructions to the jury on this crime were erroneous.
She further claims that the evidence also was insufficient to
permit convictions of the two assault and battery charges, and
again that the judge's instructions were legally incorrect.
Finally, the defendant argues that the judge erred in denying
her motion for a new trial and in particular in rejecting her
claims concerning the ineffective assistance provided by trial
counsel. For the reasons discussed below, we affirm the
defendant's conviction of reckless endangerment of a child under
G. L. c. 265, § 13L; reverse the judgments on both assault and
battery charges and order judgment for the defendant on those
charges; and reverse the order denying the defendant's motion
for a new trial on the charge of attempted murder.
3
Background. 1. Factual background. The jury could have
found the following facts. The defendant had a son, Peter,1 the
victim, who in 2006 was seven years old and presented with
significant medical and physical concerns.2 In October, 2006,
Peter was brought to the Massachusetts General Hospital
(hospital) on an emergency basis and diagnosed with
lymphoblastic lymphoma, a cancer of the lymph nodes.3 At the
time of the diagnosis, the defendant was separated from Eric
Fraser, her former husband and Peter's father, and the defendant
was Peter's primary caretaker.4
Dr. Alison Friedmann, a pediatric hematologist-oncologist
at the hospital, led the treatment team for the cancer from the
point of Peter's first admission and became Peter's primary
physician throughout treatment. When Peter was first diagnosed,
Friedmann explained to the defendant the diagnosis, the survival
rate, and an overview of the proposed treatment plan for Peter.
The plan consisted of five phases over two years, combining in-
hospital and at-home treatment. It included a complicated
1
A pseudonym.
2
Peter was severely autistic and did not speak, had severe
developmental delay, and also had a history of seizures.
3
Lymphoblastic lymphoma is a form of non-Hodgkin's
lymphoma.
4
The defendant was the primary caretaker until March, 2008,
when Eric Fraser obtained full custody of Peter.
4
chemotherapy regimen that used many different medications in
differing schedules and required heavy parental involvement.
With treatment pursuant to that plan, the long-term survival
rate for children with lymphoblastic lymphoma is about eighty-
five to ninety per cent.5
In the first phase of the treatment ("induction" phase), in
which the goal was to put the cancer into remission, Peter was
hospitalized for two weeks and then treated at home for the next
two weeks. During the home treatment portion of this phase, the
defendant was responsible for giving Peter an oral medication,
dexamethasone, a steroid that is an important part of the
treatment. The defendant was to administer dexamethasone
beginning in approximately November of 2006. Pharmacy records
indicate that this prescription was not filled until April,
2007.6 It appears that Peter achieved remission of the cancer by
the end of this first phase.
In phases two ("consolidation" phase) and three ("inner
maintenance" or "delayed intensification" phase) of the
treatment, Friedmann prescribed another oral chemotherapy agent,
5
"Long-term survival," according to Dr. Alison Friedmann,
means that the child is cured of the disease and it never
recurs.
6
According to Friedmann, the defendant filled the
prescriptions at a certain pharmacy in Peabody only; however,
the defendant testified that she picked up the prescriptions
related to the first phase from the hospital.
5
6-mercaptopurine (6-MP). The defendant was responsible for
giving Peter 6-MP every night beginning in or about early
December, 2006, and was to continue for three or four months.
Pharmacy records indicate that this prescription was not filled
until June 28, 2007. Nonetheless, in the winter or early spring
of 2007, the defendant told Friedmann she was having a hard time
giving Peter the 6-MP, and the doctor changed the prescription
to a liquid form. The third phase required planned hospital
stays to receive chemotherapy as an inpatient, along with
continued at-home administration of 6-MP.
Throughout the first three phases of Peter's treatment, a
home care nurse from the hospital visited the defendant and
Peter on a regular basis. During the first month of treatment
the nurse traveled to the defendant's home once or twice per
week and thereafter visited when blood tests were needed.
During these visits, the home care nurse reviewed the plan of
care and answered any questions the defendant had about
administering the medications. During the fall of 2006 into the
winter of 2007, the home care nurse asked the defendant if she
had given Peter the medications and the defendant reported that
Peter was taking his medications. The defendant also reported
to Friedmann that generally "things seemed to be going okay,"
and aside from letting Friedmann know she was having trouble
6
giving Peter the 6-MP, she never indicated there were any
difficulties giving Peter the medications.
The fourth phase ("reinduction" phase), which started in
the spring of 2007, involved intravenous medications in the
clinic and oral steroids. Peter had weekly visits with
Friedmann during which the doctor checked his blood, reviewed
the medications with the defendant, and discussed how Peter was
doing. During this phase, the entirety of the chemotherapy was
administered at the hospital and, according to the pharmacy
records, the oral medication prescription was filled.
The final phase of treatment ("maintenance" phase) began at
the end of June, 2007, and was intended to continue for sixteen
months. This phase involved three medications, including 6-MP,
that were to be given to Peter by the defendant at home and one
medication that was to be administered intravenously during a
monthly visit to the hospital. Although the 6-MP prescription
was supposed to be refilled every month and administered nightly
during this final phase, the monthly prescription was only
filled on June 28, 2007; September 5, 2007; and January 30,
2008. In August, 2007, the defendant told the home care nurse
that "the medications were going good," Peter was tolerating
them, and she had no concerns. Although she never filled the
prescription for the liquid form of 6-MP, the defendant further
7
reported to the home care nurse that Peter was taking the liquid
form of 6-MP, and "it was going better."7
During a clinic visit in February, 2008, Peter had a bad
cough and fever and his platelet count was lower; he was
diagnosed with influenza and the respiratory syncytial virus.
Friedmann was worried about a relapse, instructed the defendant
to stop his chemotherapy medicine, and prescribed an antiviral
medication to treat influenza. The defendant told the home care
nurse that she was not giving Peter the antiviral medication
because she did not want to make him sick. The nurse attempted
to schedule an appointment for the end of that week to draw
Peter's blood, but the defendant was unavailable. Because it
struck Friedmann as "odd" that the hospital was unable to obtain
the blood test, she telephoned the pharmacy to determine whether
Peter's prescriptions had been filled as prescribed. The
records revealed that the defendant had not filled multiple
medications prescribed to Peter throughout the treatment period.8
The doctor telephoned the defendant and told her they "really
needed to get some lab tests done." When the defendant brought
7
Throughout the treatment, the defendant brought Peter in
for all of his doctor's appointments and for all of his
outpatient and inpatient hospital treatments; on a few
occasions, Peter missed an appointment, but the defendant
brought him in within a few days of the scheduled appointment.
8
Friedmann testified at trial that multiple breaks in
chemotherapy treatment are "very significant."
8
Peter to the hospital the next day, the doctor discovered that
Peter had suffered a relapse, meaning that the cancer had
returned.9 Friedmann asked the defendant about the missed
prescriptions, but the defendant insisted that the pharmacy must
have made a mistake. After the pharmacy confirmed that no
mistake had been made, Friedmann and a social worker at the
hospital filed a report of child abuse or neglect with the
Department of Children and Families (DCF) pursuant to G. L.
c. 119, § 51A.
During a meeting with a DCF social worker after that report
had been filed, the defendant claimed that she had administered
all of the medications prescribed, and at some point stated to
the social worker that she knew withholding Peter's medicine
would be "like pushing him in front of a car." At the end of
March, 2008, Fraser obtained custody of Peter, and in April the
defendant signed a stipulation rescinding her visitation rights
with Peter and agreeing to give Fraser full custody of him.
After it was confirmed that Peter had relapsed, Friedmann
explained to the defendant and Fraser that the cancer could not
be treated with the original treatment because the cancer was
now resistant to that treatment; the only viable treatment was a
bone marrow transplant, a complicated procedure with a low
9
Peter's cancer at this time was leukemia (cancer of the
blood and bone marrow), as compared to the earlier diagnosis of
lymphoma (cancer of the lymph nodes).
9
chance of survival. Peter's parents decided against the bone
marrow transplant, and it became clear that continued treatment
would only control the cancer but could not cure it; thereafter,
chemotherapy was suspended. Peter died on March 30, 2009, of
respiratory failure secondary to acute lymphoblastic leukemia.
The Commonwealth's theory was that the defendant understood
that not giving Peter the prescribed medications would create a
substantial risk of death, that she made an intentional decision
to withhold the medications from Peter because she wanted to
kill him, and that she repeatedly lied in order to conceal her
ongoing efforts to kill her son. It was not possible to
determine -- according to Friedmann -- whether the defendant's
noncompliance with the medication protocol caused Peter's cancer
to return (and therefore his death), but the defendant's
noncompliance created a significant risk that the cancer would
do so.
The theory of the defense was that the defendant's failure
to administer Peter's medications10 was done without any intent
to kill her son. Rather, the short-term effect of the
chemotherapy treatment was simply too burdensome for a single
caretaker such as the defendant, and she was so fatigued by the
end of the treatment that her judgment waned. The defendant
10
At trial, the defendant admitted that she failed to give
Peter various medications during treatment.
10
testified to this effect, as did Dr. Frederick Krell, a forensic
psychologist who testified as an expert witness for the defense.
Krell opined that the defendant was overwhelmed with having to
cope with an impaired child who had a life-threatening illness,
and she was unable to keep in mind the long-range goal of the
treatment. In response, the Commonwealth called Dr. Martin
Kelly, a psychiatrist, who testified that the defendant did "not
have any mental disorder or psychological condition that would
affect her capacity to premeditate, to weigh the pros and cons,
to intend to do the acts that she did."
2. Procedural background. In July, 2009, the defendant
was indicted on charges of attempted murder, G. L. c. 265, § 16;
wantonly or recklessly permitting substantial bodily injury to a
child under the age of fourteen, G. L. c. 265, § 13J (b);
wantonly or recklessly permitting serious bodily injury to a
disabled person, G. L. c. 265, § 13K (e); and wantonly or
recklessly endangering a child, G. L. c. 265, § 13L. In April,
2011, at the end of trial, a jury found the defendant guilty of
all four charges.11 The defendant filed a timely notice of
appeal and, represented by her present appellate counsel,
subsequently filed a motion for a new trial that included claims
11
The defendant was sentenced to a term of from eight to
ten years on the conviction of attempted murder, and concurrent
five-year terms of probation on the remaining convictions, to be
served from and after the prison sentence.
11
of ineffective assistance of trial counsel. The trial judge
held an evidentiary hearing on the ineffective assistance claims
at which three witnesses testified. Following the hearing, the
judge denied the defendant's motion for a new trial. On
November 27, 2013, the defendant filed a notice of appeal from
this denial, and the appeals were consolidated. We transferred
the case to this court on our own motion.
Discussion. 1. Attempted murder: nonachievement. The
defendant challenges the sufficiency of the evidence for her
conviction of attempted murder. She argues that the crime of
attempted murder, like the crime of general attempt, has three
elements: (1) a specific intent to kill, (2) an overt act, and
(3) nonaccomplishment or nonachievement of the completed crime.
In her view, the Commonwealth was required to prove all three of
these elements beyond a reasonable doubt and argues that because
the Commonwealth, by its own admission, was unable to prove
nonachievement, her motion for a required finding of not guilty
should have been allowed.12 Alternatively, she contends that
even if the trial evidence were sufficient to preclude a
required finding on the element of nonachievement, the judge's
failure to include any instruction on this element meant that
the jury did not consider whether the Commonwealth presented
12
For the purposes of this argument, the defendant does not
challenge the sufficiency of the evidence of intent to kill and
of an overt act.
12
sufficient evidence, creating a substantial risk of a
miscarriage of justice. We disagree. For the reasons next
discussed, we conclude that specific intent and commission of an
overt act are the required elements of the crime of attempt or,
here, attempted murder, but that nonachievement of the murder,
while clearly relevant, is not itself an element that the
Commonwealth must prove beyond a reasonable doubt.
The crime of attempted murder is defined in G. L. c. 265,
§ 16,13 and is distinct from the crime of general attempt, G. L.
c. 274, § 6.14 Notwithstanding the differences in the language,
our cases have tended to treat the elements of attempt as the
same under both statutes. See Commonwealth v. Peaslee, 177
Mass. 267 (1901) (attempt to burn building); Commonwealth v.
Kennedy, 170 Mass. 18 (1897) (attempted murder). It is also the
case that attempted murder may be prosecuted as an attempt under
c. 274, § 6, rather than c. 265, § 16. See, e.g., Commonwealth
v. Dixon, 34 Mass. App. Ct. 653, 655 (1993).
13
General Laws c. 265, § 16, provides in relevant part:
"Whoever attempts to commit murder by poisoning, drowning
or strangling another person, or by any means not
constituting an assault with intent to commit murder, shall
be punished . . . ."
14
General Laws c. 274, § 6, provides in relevant part:
"Whoever attempts to commit a crime by doing any act toward
its commission, but fails in its perpetration, or is
intercepted or prevented in its perpetration, shall, except
as otherwise provided, be punished . . . ."
13
This case appears to be the first in which this court has
considered directly whether nonachievement is an element of
attempted murder, or more generally, attempt. Unquestionably,
the defendant's argument that nonachievement is an element of
attempt crimes is not without support: a number of cases
arising under the general attempt statute have included
nonachievement as an element of attempt. See, e.g.,
Commonwealth v. Marzilli, 457 Mass. 64, 66 (2010) (attempted
indecent assault and battery); Commonwealth v. Bell, 455 Mass.
408, 412 (2009) (attempted rape). And the Appeals Court has
recognized a form of nonachievement -- "failure or interruption"
-- as an element of attempted murder under G. L. c. 265, § 16.
See, e.g., Commonwealth v. Murray, 51 Mass. App. Ct. 57, 61
(2001); Dixon, 34 Mass. App. Ct. at 655. In contrast to this
case, however, in all of the cited cases the question whether
the substantive crime was completed was not at issue -- there
was no disagreement that it had not been achieved -- and the
element of nonachievement was not substantively discussed.
Moreover, a number of other cases decided by this court and the
Appeals Court suggest that the elements of attempt are limited
to the requisite intent and an overt act. See, e.g.,
Commonwealth v. Rivera, 460 Mass. 139, 142 (2011); Commonwealth
v. Ortiz, 408 Mass. 463, 470 (1990); Commonwealth v. Gosselin,
365 Mass. 116, 120-121 (1974); Commonwealth v. Cline, 213 Mass.
14
225, 225 (1913); Commonwealth v. Sullivan, 84 Mass. App. Ct. 26,
28-30 (2013), S.C., 469 Mass. 621 (2014).
This court's jurisprudence on attempt dates back to
Kennedy, 170 Mass. 18, a decision authored by then Justice
Holmes, that considered a case of attempted murder brought under
an earlier version of G. L. c. 265, § 16; and Peaslee, 177 Mass.
267, authored by then Chief Justice Holmes, concerning an
attempt to burn a building under an earlier version of G. L.
c. 274, § 6. In Kennedy, supra, the defendant was charged with
attempted murder by placing deadly poison on the victim's cup
with the intent that the victim drink from the cup, ingest the
poison, and die. Id. at 20. Although it is clear from the
opinion that the victim did not die as a result of the
defendant's acts, see id. at 23, the fact is of little
significance in the court's discussion of the nature of the
crime. Rather, the court focused principally on the nature of
the overt act or acts taken by the defendant toward
accomplishment of the intended murder.15 With respect to the
overt acts, Justice Holmes emphasized that not all acts leading
toward the substantive crime are subject to punishment as a
criminal attempt, but only those that come "near enough to the
result," i.e., accomplishment of the substantive crime:
15
The court made clear that the evidence of the defendant's
intent to kill the victim was sufficient. Commonwealth v.
Kennedy, 170 Mass. 18, 25 (1897).
15
"[W]e assume that an act may be done which is expected and
intended to accomplish a crime, which is not near enough to
the result to constitute an attempt to commit it, as in the
classic instance of shooting at a post supposed to be a
man. As the aim of the law is not to punish sins, but is
to prevent certain external results, the act done must come
pretty near to accomplishing that result before the law
will notice it."
Id. at 20. See id. at 22 ("Every question of proximity must be
determined by its own circumstances . . ."). See also Peaslee,
177 Mass. at 271 ("The question on the evidence, . . . precisely
stated, is whether the defendant's acts come near enough to the
accomplishment of the substantive offence to be punishable").16
Kennedy and Peaslee explain and illustrate that the essence
of the crime of attempt is to punish the defendant's substantial
acts toward the accomplishment of an intended substantive
offense. See Commonwealth v. Burns, 8 Mass. App. Ct. 194, 196
16
The court in Commonwealth v. Peaslee, 177 Mass. 267, 272
(1901), continued in further explanation:
"That an overt act although coupled with an intent to
commit the crime commonly is not punishable if further acts
are contemplated as needful, is expressed in the familiar
rule that preparation is not an attempt. But some
preparations may amount to an attempt. It is a question of
degree. If the preparation comes very near to the
accomplishment of the act, the intent to complete it
renders the crime so probable that the act will be a
misdemeanor although there is still [an opportunity to
change one's mind] in the need of a further exertion of the
will to complete the crime."
The court concluded that at least the acts alleged in the
indictment, collection and preparation of combustible materials
in a room, by themselves did not come near enough to the
accomplishment of the substantive offense of burning (arson) to
be punishable. See id. at 273-274.
 16
(1979). See also R.M. Perkins, Criminal Law, at 552 (2d ed.
1969). The substantive crime is clearly both relevant and
important, because what the crime of attempt aims to punish are
acts that bear a proximate relation to that crime; put another
way, the substantive crime helps to define and delimit what acts
may have the requisite proximity. But the acts stand on their
own, and whether a particular act qualifies as an overt act
that, combined with proof of the requisite intent, constitutes a
criminal attempt does not depend on whether the substantive
crime has or has not been accomplished.17
In contending that nonaccomplishment is an element of
attempt that the Commonwealth must prove, the defendant relies
principally on cases such as Marzilli, 457 Mass. at 66, and
Bell, 455 Mass. at 412.18 In these decisions, as previously
17
By way of example, in Kennedy, 170 Mass. at 21-22, the
Commonwealth's failure to prove that the amount of poison placed
on the cup was "large enough to kill" was of no import to the
defendant's liability under the law of attempted murder:
"Any unlawful application of poison is an evil which
threatens death, according to common apprehension, and the
gravity of the crime, the uncertainty of the result, and
the seriousness of the apprehension, coupled with the great
harm likely to result from poison even if not enough to
kill, would warrant holding the liability for an attempt to
begin at a point more remote from the possibility of
accomplishing what is expected than might be the case with
lighter crimes."
Id. at 22.
18
The defendant also relies on Beale, Criminal Attempts, 16
Harv. L. Rev. 491 (1903).
17
mentioned, the court listed nonachievement as an element of
attempt, but did not otherwise discuss it. Both these cases
involved the general attempt statute, G. L. c. 274, § 6, which
contains language that focuses specifically on failing to
accomplish, or being prevented from accomplishing, the
substantive crime.19 On reflection, we consider this language to
represent not a separate element of the crime of attempt but "a
further refinement of the definition of the overt act."
Commonwealth v. Aldrich (No. 1), 88 Mass. App. Ct. 113, 118
(2015). That is, the language helps to clarify and reinforce
the point that attempt is a crime separate and distinct from the
substantive offense to which it is connected, one that focuses
on, and punishes, acts that threaten the accomplishment of the
substantive offense, not the substantive offense itself.
Accordingly, to the extent that our decisions such as Marzilli
and Bell indicate that proof of nonachievement of the
substantive crime is an element of attempt, we no longer follow
19
"Whoever attempts to commit a crime by doing any act
toward its commission, but fails in its perpetration, or is
intercepted or prevented in its perpetration, shall . . . be
punished . . ." (emphasis added). G. L. c. 274, § 6. The
statute defining attempted murder, G. L. c. 265, § 16, does not
contain this language, but as discussed previously, we take the
view that the essential elements of "attempt" are the same in
both statutes.
18
them.20 The elements of attempt, whether general attempt or
attempted murder, are (1) the specific intent to commit the
substantive crime at issue, and (2) an overt act toward
completion of the substantive crime.21
Here, the Commonwealth is not able to prove beyond a
reasonable doubt either that the defendant murdered Peter or
that the defendant failed to murder him. We agree, as does the
Commonwealth, that in these circumstances, the defendant cannot
be convicted of murder. But "requiring the government to prove
failure as an element of attempt would lead to the anomalous
result that, if there were a reasonable doubt concerning whether
or not a crime had been completed, a jury could find the
defendant guilty neither of a completed offense nor of an
attempt." United States v. York, 578 F.2d 1036, 1039 (5th
Cir.), 439 U.S. 1005 (1978). See Gosselin, 365 Mass. at 120
20
The Appeals Court recently has concluded that under the
general attempt statute, "the completed substantive offense
nullifies the existence of an attempt." Commonwealth v. Coutu,
88 Mass. App. Ct. 686, 701 (2015). See Beale, Criminal
Attempts, 16 Harv. L. Rev. at 506-507. There is no need for us
to consider this issue in the present case, because, quite apart
from the fact that the general attempt statute does not apply,
the Commonwealth admittedly did not and could not prove
completion of the substantive offense.
21
Commonwealth v. Dykens, 473 Mass. 635 (2015), is not to
the contrary. In that case, we considered whether three
successive failures to break into a dwelling could be prosecuted
as three separate attempts. With respect to each of these
attempts, the failure served to delimit the attempt's overt act,
but the failure was not itself an element of the offense.
19
(stating, in dictum, that requiring proof beyond reasonable
doubt that attempt failed would mean that "if there were a
reasonable doubt whether the attempt succeeded, the defendant
could not be convicted either of the completed crime or of the
attempt. We have rejected such requirements"). See also United
States v. Rivera-Relle, 333 F.3d 914, 919-921 (9th Cir.), cert.
denied, 540 U.S. 977 (2003) (failure to complete entry into
United States was not element of offense of attempting to
reenter United States without consent of Attorney General;
discussing Federal and State decisions on whether nonachievement
must be proved as element of attempt); Lightfoot v. State, 278
Md. 231, 238 (1976) (where no joint venture theory existed,
robbery was complete, but uncertainty existed about whether
defendant himself had completed robbery, defendant charged with
attempted robbery because "failure to consummate the crime is
not an indispensable element of criminal attempt").
Our conclusion that nonachievement of murder is not an
element of attempted murder essentially disposes of the
defendant's challenge to the judge's instructions on this crime.
The judge instructed the jury that the Commonwealth "[does not]
have to prove that the defendant caused the death of [Peter].
It's instead attempted murder, that is she had the intent with
malice and then she makes some overt act toward the murder
. . . . Attempted murder only exists if there's not an actual
20
murder, of course." The judge further instructed the jury on
the element of an overt act, stating that they must find "some
actual outward physical action as opposed to mere talk or plans.
. . . [A]n act . . . that is reasonably expected to bring about
the crime [of murder]." We conclude that the judge's
instructions correctly explained the elements of attempted
murder.
2. Assault and battery charges. The defendant challenges
her convictions of assault and battery upon a child, in
violation of G. L. c. 265, § 13J (b), fourth par. (§ 13J [b],
fourth par.); and of assault and battery upon a person with a
disability, in violation of G. L. c. 265, § 13K (e) (§ 13K [e]).
Section 13J (b), fourth par., punishes a caretaker of a child
who "wantonly or recklessly permits substantial bodily injury"
to the child,22 and § 13K (e) punishes a caretaker of a person
with a disability who "wantonly or recklessly permits serious
bodily injury" to the person with a disability.23,24 The
22
General Laws c. 265, § 13J (b), fourth par. (§ 13J [b],
fourth par.), provides in relevant part:
"Whoever, having care and custody of a child, wantonly or
recklessly permits substantial bodily injury to such child
or wantonly or recklessly permits another to commit an
assault and battery upon such child, which assault and
battery causes substantial bodily injury, shall be punished
. . . ."
23
General Laws c. 265, § 13K (e) (§ 13K [e]), provides in
pertinent part:
21
defendant contends that although the Commonwealth may have
presented sufficient evidence to prove that the defendant caused
a substantial risk of death to Peter by not giving him the
prescribed chemotherapy and related medications, it did not
present evidence sufficient to prove "substantial bodily
injury." She further argues that the judge's instructions to
the jury incorrectly defined the meaning of substantial bodily
injury.25 We agree with the defendant on both points.
"Whoever, being a caretaker of [a] . . . person with a
disability, wantonly or recklessly permits serious bodily
injury to such . . . person with a disability . . . shall
be punished . . . ."
24
Section § 13J (b), fourth par., concerns "substantial
bodily injury" to a "child," and § 13K (e) concerns "serious
bodily injury" to a "person with a disability." In this case,
the Commonwealth’s position is that Peter fit the definition of
"child" in the first of these statutes, and of "person with a
disability" in the second. The defendant does not argue
otherwise, and we agree. We have previously concluded that the
definitions of "substantial bodily injury" in § 13K (b) and
"serious bodily injury" in § 13K (e) are substantively the same.
See Commonwealth v. Roderiques, 462 Mass. 415, 423 n.2 (2012).
Because of this, and because the remaining provisions in the two
statutes are also substantively identical, for ease of
reference, the discussion in the text that follows considers
only the charge under § 13J (b), fourth par., but the discussion
applies equally to the charge under § 13K (e).
25
At trial, the defendant moved for a required finding of
not guilty on both these charges, arguing that the Commonwealth
failed to prove the defendant had caused actual bodily injury to
Peter. The trial judge denied the defendant's motion for a
required finding of not guilty, explaining that under the common
law the defendant's argument might be sound, but under the
statutory causes of action at issue proof of a substantial risk
22
The term "[b]odily injury" is defined in G. L. c. 265,
§ 13J (a), as a
"substantial impairment of the physical condition including
any burn, fracture of any bone, subdural hematoma, injury
to any internal organ, any injury which occurs as the
result of repeated harm to any bodily function or organ
including human skin or any physical condition which
substantially imperils a child's health or welfare."
The term "[s]ubstantial bodily injury" is defined in the same
section to mean "bodily injury which creates a permanent
disfigurement, protracted loss or impairment of a function of a
body member, limb or organ, or substantial risk of death." We
previously have stated, in discussing § 13J (b), fourth par.,
that
"[the term 'bodily injury'] defines the bodily injuries the
Legislature intended to be punishable under the statute,
i.e., burns, fractures, injuries to internal organs, and
perilous physical conditions, while ['substantial bodily
injury'] lays the foundation for greater sanctions based on
the gravity and consequences of the bodily injury
sustained. Read together, . . . a substantial bodily
injury includes any substantial impairment of the physical
condition that causes a protracted impairment of the
function of an internal organ or a substantial risk of
death. As it appears in the context of the statute, death
is not an injury, but one risk of injury."
Commonwealth v. Chapman, 433 Mass. 481, 484 (2001). See
Commonwealth v. Roderiques, 462 Mass. 415, 423 (2012)
("substantial bodily injury" under § 13J [b], fourth par.,
of death was sufficient. The jury instructions reflected the
judge's stated understanding of the law.
23
requires risk of injury to "come to fruition in the form of an
actual injury").
The evidence at trial permitted the jury to find, based on
Friedmann's testimony, that the defendant's failure or refusal
to give Peter the medications that were part of his treatment
plan caused an increased risk of death for Peter. However, if
death itself does not qualify as a "bodily injury" or "serious
bodily injury" under the statute, see Chapman, 433 Mass. at 484,
neither does an increased risk of death. The Commonwealth
asserts, however, that the defendant's withholding of
medications led to Peter's cancer returning in a more virulent
and treatment-resistant form, and that this more potent illness
was itself a "bodily injury" that, in the words of § 13J (b),
fourth par., the defendant wantonly or recklessly permitted to
occur.26
The Commonwealth's argument fails. Although the presence
of a stronger, more treatment-resistant form of cancer may
qualify as a "bodily injury" under the statutory definition, see
G. L. c. 265, § 13J (a) ("bodily injury" defined to include "any
physical condition which substantially imperils a child's health
26
The evidence that the Commonwealth appears to rely on was
the following. In responding to a question by the prosecutor as
to whether Peter's receipt of some but not all his medications
affected her ability to treat him once he relapsed, Friedmann
responded, "Yes. I believe that likely made the chemotherapy
less effective the second time around and the leukemia more
resistant."
24
or welfare"), an opinion that a particular result is "likely"
does not appear to be sufficient to permit a finding that the
defendant's actions actually caused the more treatment-resistant
form of cancer to occur.27 Given that, according to the
evidence, even with full treatment ten to fifteen per cent of
children still succumb to the cancer, just as the Commonwealth
admittedly could not prove beyond a reasonable doubt that the
defendant's actions caused Peter's death from cancer, so it
appears that the Commonwealth would not be able to prove that
the defendant's actions caused him to relapse and become ill
with a more treatment-resistant form of cancer.
We thus conclude that the trial evidence was insufficient
to support the defendant's assault and battery convictions under
§§ 13J (b), fourth par., and 13K (e), and those convictions must
be vacated.28 The defendant also was convicted of reckless
27
Section 13J (b), fourth par., punishes a caretaker who
"wantonly or recklessly permits substantial bodily injury to"
the child. The word "permits" signifies that the Commonwealth
is not required to prove the caretaker actually inflicted the
bodily injury -- failure to act when there is a duty to do so
may suffice -- but the word "permits" does not remove the
Commonwealth's burden to prove beyond a reasonable doubt the
causal connection between the caretaker's actions or nonactions
and the claimed substantial bodily injury.
28
In light of our conclusion, it is not necessary to
resolve the defendant's challenge to the jury instructions on
the two assault and battery charges. We agree with the
defendant, however, that these instructions appear to be based
on an incorrect reading of the (identical) definitions of
"substantial bodily injury" and "serious bodily injury" in G. L.
25
endangerment of a child in violation of G. L. c. 265, § 13L.29
She challenged that conviction as duplicative in light of her
conviction under § 13J (b), fourth par., see Roderiques, 462
Mass. at 424, but agrees that if the conviction under § 13J (b),
fourth par., is vacated or reversed, the conviction under § 13L
may stand.
3. Motion for new trial: ineffective assistance of
counsel. Finally, the defendant claims that the judge abused
his discretion by denying the defendant's motion for a new trial
on the ground of ineffective assistance of counsel. She argues
that counsel was ineffective in three ways: (1) failing to
consult an independent oncologist; (2) agreeing to order his
expert witness, Krell, to turn over his records to the
c. 265, §§ 13J (a) and 13K (a), respectively. The judge's
instructions appear to define the terms to mean "[either] bodily
injury which results in a permanent disfigurement, protracted
loss or impairment of bodily function, limb or organ, or a
substantial risk of death" (emphases added). However, we read
the statute to define "substantial bodily injury" as a "bodily
injury" that results in (1) a permanent disfigurement, or (2)
protracted loss or impairment of a bodily function, limb, or
organ, or (3) substantial risk of death. See Instruction 6.160
of the Criminal Model Jury Instructions for Use in the District
Court (2009) (reckless assault and battery causing serious
injury).
29
General Laws c. 265, § 13L, provides in relevant part:
"Whoever wantonly or recklessly engages in conduct that
creates a substantial risk of serious bodily injury or
sexual abuse to a child or wantonly or recklessly fails to
take reasonable steps to alleviate such risk where there is
a duty to act shall be punished . . . ."
26
Commonwealth's expert, Kelly;30 and (3) failing to present
evidence concerning the defendant's history with DCF.31 We
conclude that counsel's failure to consult an independent
oncologist fell measurably below the standard of "an ordinary
fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96
(1974). In the circumstances of this case, this failure
deprived the defendant of "an otherwise available, substantial
ground of defense" to the charge of attempted murder. Id.
a. Background. Represented by new counsel on appeal --
her present counsel -- the defendant filed a motion for a new
trial on June 6, 2013. The trial judge held an evidentiary
hearing on the motion, at which three witnesses testified on
behalf of the defendant: Kevin James, the defendant's trial
counsel; Dr. Paul Pitel, a board-certified pediatric
hematologist-oncologist; and Krell. In addition, the affidavits
30
With the assent of defense counsel, a Superior Court
judge ordered information and records relating to the defendant
to be sent to the Commonwealth's expert, Dr. Martin Kelly. The
defendant's counsel directed the defendant's expert, Dr.
Frederick Krell, to comply with the order. Krell produced over
200 pages of materials, including the results and raw data from
psychological tests he had performed.
31
The defendant's trial counsel agreed to represent her pro
bono in the District Court at a point in time when she had been
charged only with reckless endangerment of a child under G. L.
c. 265, § 13L. Trial counsel continued to represent the
defendant in the Superior Court when she was later indicted for
attempted murder and two charges of assault and battery. This
was trial counsel's first criminal case in the Superior Court
and first criminal case in which a mental health defense was
asserted.
27
of trial counsel and Pitel that had been filed in support of the
motion for a new trial were introduced in evidence as motion
exhibits.
At the motion hearing, James testified that he sought funds
to retain an independent oncologist in order to rebut the
testimony of Friedmann, a key witness for the Commonwealth's
case, but later decided not to consult an oncologist on the
grounds that (1) an effort to establish that the failure to
medicate was harmless would be unsuccessful, especially with the
Commonwealth's opportunity to cross-examine the expert; and (2)
seeking to belittle Friedmann's testimony would reflect poorly
on the defendant. At the motion hearing, Pitel, chair of the
department of pediatrics at Nemours Children's Clinic in
Jacksonville, Florida, testified that he has treated children
with lymphoblastic lymphoma since 1978.
Consistent with his affidavit,32 Pitel testified at the
motion hearing that the professional literature makes clear that
32
Pitel stated in his affidavit:
"[I]t is unfortunately not rare to care for children
whose parents do not fully comply with the demands of
extended chemotherapy protocols. Many of these parents
find the regimen too difficult and burdensome to follow,
and some cannot understand the risks associated with a
failure to do so. This occurs despite all efforts by
hospital and clinic staff to educate, urge compliance, and
warn of the risks of noncompliance. . . . Over the years,
I have helped care for a significant number of patients
whose parents were less than compliant. More than a few of
28
the adherence rates33 for many long-term drug therapies are no
more than forty or fifty per cent. Noncompliance with cancer
treatment protocols is lowest when the patient is an adolescent,
but a major concern with pediatric populations generally;
adherence is a considerable issue with drugs that are used to
treat an asymptomatic illness or to prevent illness. Based on
his experience, Pitel offered several reasons parents do not
adhere to the treatment protocol: the immediate side effects of
the medications are much more obvious than any benefits;
noncompliance often has no visible detrimental effect, and thus
parents do not fully appreciate the consequences; when the child
appears healthy parents often stop complying, especially when
the child resists the medications; and parents may not believe
the treatment will work and do what they think will work. Pitel
opined that, in this case, the defendant's personal
circumstances signaled a higher risk of noncompliance, and the
defendant likely did not understand that her lapses in
compliance could be lethal, especially given that, according to
his medical records, Peter achieved remission early on and his
doctor ordered repeated holds on chemotherapy and told the
defendant that Peter was doing well throughout the treatment.
these parents were personally limited and/or had children
with complex disabilities and/or emotional disorders."
33
The degree of adherence varies and may include partial
adherence or erratic adherence.
29
In denying the defendant's motion for a new trial, the
judge concluded that defense counsel "chose the best possible
defense and presented it well at trial." The judge dismissed
the importance of Pitel's testimony, reasoning that Pitel agreed
with Friedmann's treatment plan and Friedman's stated opinion
that compliance is critically important. The judge noted that
Pitel would be unable to opine about the defendant's own intent
or state of mind. Although recognizing that the literature
exploring reasons for noncompliance with similar chemotherapy
protocols could have been instructive to trial counsel, the
judge concluded that such "general education would not have
accomplished 'something material to the defense.'"
b. Standard of review. When evaluating an ineffective
assistance of counsel claim, we consider "whether there has been
serious incompetency, inefficiency, or inattention of counsel --
behavior of counsel falling measurably below that which might be
expected from an ordinary fallible lawyer -- and, if that is
found, then, typically, whether it has likely deprived the
defendant of an otherwise available, substantial ground of
defence." Saferian, 366 Mass. at 96. "In cases where tactical
or strategic decisions of the defendant's counsel are at issue,
we conduct our review with some deference to avoid
characterizing as unreasonable a defense that was merely
unsuccessful" and ask whether the decision was manifestly
unreasonable when made (citation omitted). Commonwealth v.
30
Kolenovic, 471 Mass. 664, 673-674 (2015). Strategic choices
made before a complete investigation are reasonable "[only] to
the extent that reasonable professional judgments support the
limitation on investigation" (citation omitted). Commonwealth
v. Lang, 473 Mass. 1, 14 (2015). With respect to our review of
the denial of a motion for a new trial, we recognize that the
decision to allow or deny such a motion rests within the sound
discretion of the motion judge, and we give deference to the
factual findings of that judge, particularly when he or she was
also the trial judge. See Commonwealth v. Pillai, 445 Mass.
175, 185 (2005).
c. Discussion. Trial counsel's decision not to consult
with an independent oncologist appears to have been a strategic
decision. However, given the salient and essentially undisputed
facts about Peter's life-threatening cancer, his excellent
prognosis with continued treatment, and the defendant's failure
to give the prescribed medications over a long period of time,
it was clear that the defendant's intent would be the key issue
at trial. The Commonwealth's theory was that, unlike other
parents, the defendant failed to administer life-saving
medications to her son, and she lied about her noncompliance;
the only explanation for this behavior was that she intended to
kill her son. In the circumstances, it was patently
unreasonable for the defendant's counsel not to consult with a
qualified pediatric oncologist to explore the disease, its
31
treatment, and in particular whether experience dealing with
other caretaking parents might help to identify explanations
other than an intent to kill the child for a parent's decision
not to give medications. See Commonwealth v. Haggerty, 400
Mass. 437, 442-443 (1987).
The information provided by Pitel in his affidavit and his
testimony at the motion hearing concerning the noncompliant
behavior of parents with children suffering from cancer show
that parental noncompliance is not uncommon. Many parents do
not adhere to the treatment protocol for a number of reasons
other than an intent to kill the patient, including a patient's
healthy appearance during remission, a parent not wanting to
make the child sicker, and the absence of apparent adverse
effects resulting from noncompliance. Such evidence would have
been significant in the defendant's case, offering an
explanation for the defendant's conduct that placed her squarely
within a group of parents of children similarly situated with
Peter, and thereby offering an explanation for her conduct that
was understandable and within some available norm of parental
behavior -- and not, as the Commonwealth argued, the actions of
a woman who "seethed" with anger at her former husband and
intending to kill her son as an act of retaliation against the
father. As such, this evidence had the potential of raising a
reasonable doubt about the existence of the defendant's criminal
32
intent.34,35 See Commonwealth v. Martin, 427 Mass. 816, 822
(1998) (affirming allowance of motion for new trial on grounds
of ineffective assistance where defendant's trial counsel failed
to call expert to challenge Commonwealth's vulnerable cause-of-
death theory; new evidence on cause of death "could have raised
a reasonable doubt in the minds of the jury"). See also
Commonwealth v. Roberio, 428 Mass. 278, 281-282 (1998), S.C.,
440 Mass. 245 (2003) (defendant's trial counsel's failure to
investigate defendant's lack of criminal responsibility and call
expert witness constituted ineffective assistance of counsel;
defendant's motion for new trial should have been allowed). And
quite apart from testifying at trial, an expert such as Pitel
could have educated and informed the defendant's counsel about
34
Although a pediatric oncologist could not have testified
on direct examination about the substance of the literature
supporting the opinions he or she had derived from personal
experience with children and their parents, see Department of
Youth Servs. v. A Juvenile, 398 Mass. 516, 532 (1986), the issue
of literature might well have been raised on cross-examination,
and then available for defense counsel to explore further on
redirect examination; the issue might have been raised as well
if the prosecutor challenged the credibility of the witness's
opinion.
35
There was no "inhibiting conflict" between Pitel's
testimony and the theory of the defendant's defense. See
Commonwealth v. Martin, 427 Mass. 816, 822 (1998). The defense
sought to portray the defendant as an overwhelmed single mother,
overburdened by the circumstances, who did not want to make her
son even sicker. Peter went into remission early on in
treatment, and the lapses in medications appeared to make no
difference in his health. Pitel's testimony at the motion
hearing supported the defendant's proffered explanation at trial
of her motivation and conduct.
33
the disease, the treatments, and what the medical literature
teaches concerning treatment compliance by parents --
information that would have greatly aided defense counsel in his
cross-examination of Friedmann and other medical personnel from
the hospital.
In rejecting the potential value and significance of
Pitel's testimony, the judge focused particularly on the fact
that Pitel agreed with Friedmann's treatment protocol,36 that
Pitel could not testify to the defendant's own state of mind,
and that the defendant repeatedly had lied. These reasons are
not persuasive. With respect to the lying, Pitel's motion
testimony suggests he would have been able to offer noncriminal
reasons why a person in the defendant's circumstances might lie
about withholding medications. And although Pitel certainly
could not testify about the defendant's own state of mind, he
could explain, based on his own professional knowledge and
experience, the common patterns of behavior of parents who fail
to comply in cancer treatment and whether the defendant's
reported behavior was consistent with those patterns. See,
e.g., Commonwealth v. Dockham, 405 Mass. 618, 628 (1989) (expert
testimony concerning general patterns of behavior of sexually
abused children). See also Commonwealth v. Pike, 431 Mass. 212,
221-222 (2000) (expert testimony on battered woman syndrome).
36
The fact that Pitel agreed with Friedmann's treatment
protocol is irrelevant to the introduction of evidence regarding
the treatment compliance of parents.
34
In sum, we conclude that trial counsel's decision to forgo
any consultation with an oncologist was manifestly unreasonable,
and likely deprived the defendant of a substantial ground of
defense on the central disputed issue in the case, namely, the
defendant's intent. To deny her motion for a new trial would be
unjust. The defendant is entitled to a new trial on the charge
of attempted murder.37
Conclusion. The judgment of conviction on the indictment
charging a violation of G. L. c. 265, § 13L, is affirmed. The
judgments of conviction on the indictments charging violations
of G. L. c. 265, § 13J (b), and G. L. c. 265, § 13K (e), are
vacated, and judgment is to enter for the defendant on each
indictment. The order denying the defendant's motion for a new
trial on the indictment charging a violation of G. L. c. 265,
§ 16, is vacated. The case is remanded to the Superior Court
for further proceedings consistent with this opinion.
So ordered.
37
In light of our conclusion, we comment briefly on the
defendant's remaining two claims of ineffective assistance.
With respect to the ineffectiveness claim concerning Krell's
records, in light of Commonwealth v. Hanright, 465 Mass. 639,
644 (2013), the disclosure of Krell's records to the
Commonwealth's expert does not appear to have been
inappropriate. As for the ineffectiveness claim relating to the
defendant's history with the Department of Children and
Families, trial counsel's strategic decision to forgo evidence
of that history was not manifestly unreasonable.