Commonwealth v. Strickland

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10-P-666 Appeals Court
COMMONWEALTH vs. JASON STRICKLAND.
No. 10-P-666.
Hampden. September 8, 2014. - January 23, 2015.
Present: Berry, Kafker, & Maldonado, JJ.
Assault and Battery. Assault and Battery by Means of a
Dangerous Weapon. Evidence, Medical record, Relevancy and
materiality, Third-party culprit, Impeachment of
credibility, Prior misconduct, Expert opinion. Minor,
Medical treatment. Witness, Impeachment, Expert.
Practice, Criminal, Assistance of counsel. Dangerous
Weapon.
Indictments found and returned in the Superior Court
Department on July 24, 2006.
The cases were tried before Judd J. Carhart, J., and a
motion for a new trial was considered by Bertha D. Josephson.
Michael J. Fellows & Myles D. Jacobson for the defendant.
Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.
KAFKER, J. When eleven year old Haleigh Poutre arrived at
the hospital on September 11, 2005, she was unconscious and
barely breathing, her pale, emaciated body was covered in
2
bruises and huge burns, and the back of her head was swollen,
lacerated, and bleeding. Her horrible injuries had been
inflicted in her own home, where she lived with her mother Holli
Strickland1 and stepfather, the defendant. After a trial in
Superior Court, a jury convicted the defendant of (1) wantonly
or recklessly permitting, or wantonly or recklessly permitting
another to commit an assault and battery causing, substantial
bodily injury to Haleigh on or about September 10, 2005 (head
injury); (2) wantonly or recklessly permitting, or wantonly or
recklessly permitting another to commit an assault and battery
causing, bodily injury to Haleigh on or before September 11,
2005 (multiple injuries of various ages);2 (3) assault and
battery by means of a dangerous weapon (bat); (4) assault and
battery by means of a dangerous weapon (wand or stick or tube);
and (5) assault and battery. The jury acquitted the defendant
of one count of assault and battery by means of a dangerous
weapon (shod foot).
1
After being released on bail, Holli Strickland was found
dead along with her adoptive mother, as a result of an apparent
murder-suicide.
2
In each of the first two counts, the defendant was charged
under both theories of G. L. c. 265, § 13J(b), namely, (1)
assault and battery upon a child causing substantial bodily
injury (count 1) or bodily injury (count 2), and (2) having care
and custody of a child and wantonly or recklessly permitting, or
wantonly or recklessly permitting another to commit an assault
and battery causing, substantial bodily injury (count 1) or
bodily injury (count 2). The jury's verdicts rested only on the
second theory.
3
On appeal from his convictions and from the denial of his
new trial motion, the defendant argues that (1) the trial judge
improperly excluded medical evidence from Haleigh's pediatrician
and nurse with respect to the second, multiple injury count; (2)
the wand that the defendant used to hit Haleigh was not a
dangerous weapon; (3) the head injury conviction may have been
based on a theory not supported in the evidence; (4) the motion
for new trial should have been allowed where counsel was
ineffective (a) for failing to impeach a witness, and (b) for
failing to obtain an expert witness on a psychiatric condition
known as Munchausen syndrome by proxy; and (5) an evidentiary
hearing on the new trial motion was required. We affirm the
convictions and the order denying the defendant's motion for a
new trial.
Background. We recite the facts the jury could have found,
reserving some facts for later discussion.
On Sunday, September 11, 2005, at about 2:45 P.M., eleven
year old Haleigh was brought to the emergency room at Noble
Hospital by her mother, Holli Strickland (Holli), and Holli's
uncle, Brian Young. Haleigh was unconscious and unresponsive,
her vital signs were very poor, and she was barely breathing.
The back of her head was bleeding and so badly damaged that
medical personnel described it as "boggy," i.e., swollen due to
blood filling the scalp tissue. "Huge" burns were observed on
4
her chest, and her face was bloody, bruised, and "distorted." A
"CT scan" of her brain was taken, as were photographs of her
body.
Haleigh was transferred to the pediatric intensive care
unit at Baystate Medical Center at about 5 P.M. that day. The
admitting nurse testified that Haleigh's body core temperature
was just eighty-one degrees, her pupils were "fixed," and she
was "posturing" her limbs, signaling a traumatic brain injury.
A second CT scan was performed at 7:30 P.M., and an "MRI" scan
was completed the next morning. Haleigh's body was covered with
other injuries of varying age from her head to her toes.
Dr. Richard Hicks reviewed Haleigh's scans, and opined at
trial that Haleigh had suffered severe injuries to the brain, of
the type "ordinarily . . . associated with high velocity motor
vehicle accidents." Dr. Hicks explained that such injuries
would have rendered Haleigh unconscious immediately and that
based on the MRI and CT scans, he placed the brain injuries as
having occurred at about 4 P.M. on Saturday, September 10, 2005,
the day before Haleigh was first brought to the hospital. Dr.
Hicks opined that a simple fall down the stairs would not have
the force necessary to cause these injuries in a child.
Another trial expert, Dr. Christine Barron, corroborated
Dr. Hicks's testimony, stating that for the injuries to
Haleigh's brain to have resulted from a staircase fall, it
5
"would have to be a fall down the stairs with significant
external forces, such as a [strong] push or a kick of the child
at the top of the stairs." Dr. Barron estimated that Haleigh
had sustained the severe head injuries some twelve to twenty-
four hours before the Noble Hospital staff took the photographs.
Dr. Barron also proffered her opinion as to the nature and
manner of infliction of Haleigh's multiple other injuries.3 She
stated that the red bruises on the child's body were consistent
with blunt force trauma, also inflicted twelve to twenty-four
hours before the pictures were taken. Dr. Barron specifically
identified two injuries that in her opinion could not be self-
inflicted: a linear scar that ran from Haleigh's right ribcage,
across her torso, and behind her hip; and a dry contact burn to
her chest. Dr. Barron further testified that she could not give
an opinion that any of the injuries were self-inflicted. Dr.
Barron opined that the multiple injuries and scars occurred at
different times, some having occurred within the twenty-four
3
Dr. Barron's description of Haleigh's multiple other
injuries covers almost one hundred pages of transcript. Dr.
Barron identified multiple lacerations, linear abrasions, scars,
and bruises on Haleigh's trunk and legs. Haleigh had cigarette
burns on her left foot and left upper arm. Dr. Barron opined
that the burns were not consistent with the appearance of
accidental cigarette burns. Dr. Barron also identified "D"-
shaped injuries, consistent with Haleigh having been struck with
a hard, solid object. Haleigh also had a large, curvilinear
"C"-shaped laceration and identically shaped bruising on her
buttocks. Dr. Barron also testified that Haleigh had restraint
injuries on her leg and left wrist.
6
hours preceding her hospitalization, while others were at least
one week old; she could not date some injuries.
At the time of the injuries, Haleigh was living in the
family home with her stepfather, who is the defendant; her aunt
and adoptive mother, Holli; Haleigh's sister, who was nine years
old in 2005; and Haleigh's brother, who was two years old in
2005. After being alerted to Haleigh's injuries, the police
searched her home and noticed holes, indentations, and small
brown blood stains on the walls of the stairway leading to the
basement. Blood stains were also located on three walls of the
basement playroom area, as well as in the first-floor bathroom.
The blood stains on the walls of the basement stairway and in
the bathroom were swabbed, tested, and determined to match
Haleigh's blood.
In the master bedroom, a "Leatherman" tool with the
brownish material on it and handcuffs were seized from the night
table next to the bed. Tests on the Leatherman tool indicated a
mixture of blood was present, to which Haleigh was a potential
contributor. Handcuffs were also found in a "My Little Kitty"
backpack in the family van, and a belt was recovered from the
floor of the van. An aluminum bat with Haleigh's name on it was
found in a basement closet. Work tools were strewn throughout
the house.
7
At trial, Haleigh's sister was twelve. She testified that
she had seen Holli and the defendant hit Haleigh with their
hands, a belt, and a baseball bat, and that she saw scabs and
bruises all over Haleigh, with whom she shared a bedroom.
Haleigh's sister also recounted how Holli and the defendant
would push Haleigh down the basement stairs to punish her and
how the defendant began pushing Haleigh down the stairs shortly
after he moved into the home, around 2002.
Haleigh's sister testified that after her soccer game on
Saturday, September 10, 2005, she saw the defendant push Haleigh
down the basement stairs and that this time Haleigh did not
"wake up." Haleigh's sister heard the defendant order Haleigh
to get up and then saw both Holli and the defendant shaking
Haleigh to awaken her, but she remained on her back at the
bottom of the stairs. Haleigh's sister saw the defendant carry
Haleigh upstairs and place her in the bathtub in the first-floor
bathroom.4 Haleigh's sister added that a little later she saw
the defendant carry Haleigh up to bed. Haleigh was not awake.
That evening Holli told a friend, a certified home health
aide, that Haleigh was ill and that she had stayed home with
Haleigh while the defendant went to the mall with Haleigh's
4
This testimony was corroborated by forensic evidence
indicating that blood found in and around the bathtub and on the
walls of the basement stairway matched Haleigh's
deoxyribonucleic acid (DNA) profile.
8
sister and brother. Holli declined the home health aide's offer
to come over and take a look at Haleigh.5 The next morning,
Holli again spoke to her friend and told her that Haleigh was
still sleeping and then called a pediatrician at about 10:30
A.M. The doctor on call who returned the message was not
Haleigh's regular pediatrician. He testified that Holli
reported that Haleigh had the stomach flu and had vomited twice;
he offered to see Haleigh in one hour, but Holli declined the
appointment.
The family had another soccer game to attend that
afternoon, and because Haleigh was still "asleep," Holli asked
Alicia Weiss, her neighbor and close friend, to watch Haleigh.
Weiss arrived after noon, and the family left at about 12:30
P.M., leaving Weiss alone with Haleigh. Weiss testified that
she checked on Haleigh three times. She saw some foam on
Haleigh's mouth and testified that Haleigh neither moved nor
woke up. The family returned at about 2:30 P.M., accompanied by
Holli's uncle, Brian Young. At Holli's urging, Young checked on
Haleigh and immediately realized something was very wrong; he
carried her downstairs and brought her to Noble Hospital.
At trial, the Commonwealth introduced other eyewitness
accounts of the defendant abusing Haleigh, including incidents
5
The defendant testified that he came home at approximately
9 P.M. and saw Haleigh sleeping at approximately 10:30 P.M.
9
in which the defendant (1) struck Haleigh in the hand with a
plastic tubular wand; (2) aided Holli in interrogating Haleigh
as Holli beat her lower legs with a bat; (3) dragged Haleigh
into the house by her ear, causing her to cry; (4) together with
Holli took Haleigh into the bathroom, after which a muffled cry
was heard and Haleigh emerged with a bloody lip; and (5) struck
her in the head with his hand.6
The new trial motion judge (who was not the trial judge)
accurately summarized the main elements of the defense at trial:
"The defense called a treating health professional,
. . . Pamela Krzyzek, who testified that when she came to
the family's home, the defendant was not present because he
was at work.[7] [Krzyzek testified that Haleigh told her she
heard voices telling her to hurt herself and that she had
hit her knees with a hammer.] She also testified that the
defendant did not report Haleigh's injuries to her, but
that it was always Holli who did. The defense also called
Stephanie Trent Adams ('Adams'), whose children had
attended Holli's daycare . . . . Adams testified that the
defendant worked during the day . . . . Adams also
recalled that she had seen Haleigh 'stair-surfing,'
punching herself, and hitting her head against the wall of
a cubby.
"Defense counsel called two expert witnesses. Dr.
Jonathan Arden testified that the kind of brain injury
6
The primary sources of these other accounts of abuse were
Weiss and Angela Harris, a friend of Haleigh's sister.
7
Krzyzek was a clinical case coordinator working for an
organization that provided voluntary assistance to families
designed to stabilize a child's behavior transitioning from a
hospital stay to home. In this case, Krzyzek received a
referral to assist with Haleigh's transition to home after a
stay at a hospital for an eating disorder. She saw Haleigh in
the home approximately once per week from July, 2004, to
September 7, 2005.
10
Haleigh suffered did not require the equivalent of a high
speed car crash in order to cause it. [Arden gave an
opinion that the head injury could have occurred between
two or three hours and twenty-four hours before the 4 P.M.
CT scan was taken on Sunday.] The other expert witness,
Dr. Brian Wraxall, testified that he had examined the DNA
taken from the Strickland home, and that [the defendant]
was excluded as a potential source of that DNA.
"The defendant took the stand and denied any
wrongdoing. He testified that he believed Holli when she
told him that Haleigh was injuring herself and was
receiving treatment for this condition. . . . Only Holli
would take Haleigh to these appointments and would speak
with the medical providers. The defendant learned of
Haleigh's injuries through Holli."
The defense also attempted to discredit both Weiss and
Haleigh's sister with prior inconsistent statements. For
example, Haleigh's sister did not reveal that she had seen the
defendant push Haleigh down the stairs on Saturday, September
10, until more than two years after the incident. In the
interviews immediately after Haleigh was hospitalized, Haleigh's
sister had claimed that she saw Haleigh hit her head on the
floor in the basement while performing a back flip on Friday
night and that as a result Haleigh briefly lost consciousness.
For her part, Weiss initially told police that Holli was a good
mother and volunteered that "[i]t's not like Holli would ever
throw her kids down the stairs or, like, hit them," but Weiss
testified at trial that she had "left out certain things" in an
effort to "protect[] [her] best friend."
11
Discussion. 1. Excluded evidence. a. Exclusion of
medical provider evidence as to the second count, involving
multiple injuries that occurred on or before September 11, 2005.
On appeal, the defendant challenges the exclusion of
testimony and records from Haleigh's pediatrician, Dr. Rukmini
Kenia, and Dr. Kenia's nurse practitioner, Susan Malloy,8 that
the defendant claims established his defense to the count
charging multiple injuries inflicted on or before September 11,
2005.9 This argument is not directed at count one, the head
injury, as Dr. Kenia and Malloy never treated Haleigh for the
head injury, and the defense did not pursue a theory at trial
that the head injury was the product of self-abuse. The records
reflect that Haleigh was regularly seen in Dr. Kenia's office
from at least 2001 until September 2, 2005, eight days before
the injury to her head, and that she was sometimes treated by
Dr. Kenia, but more often by Malloy.
The defense sought to introduce the testimony and records
to establish that Dr. Kenia and Malloy saw Haleigh on numerous
occasions, observed bruises and burns on her, and were treating
8
Malloy had a master's degree in nursing, in addition to
being a registered nurse and a certified pediatric nurse
practitioner, and in accordance with G. L. c. 112, § 80B, she
was licensed to make clinical decisions regarding care, the
prescription of medications, therapeutics, and treatment.
9
The medical records were marked for identification at
trial and are part of the record appendix.
12
her for self-abuse. Defense counsel wanted to conclude his
questioning of Dr. Kenia and Malloy by asking, "on any occasion,
did you consider the possibility that . . . any of her injuries
were . . . caused by another?" Defense counsel explained that
he was "trying to corroborate [the defendant's] belief" that
"[the defendant] had no reason to protect [Haleigh] because he
thought it was self-abuse, so did the doctors, so did everybody
else." Defense counsel further explained that he sought to
introduce the testimony regarding Malloy's determination
regarding self-abuse, not for "the truth of the matter; [but
because] it goes to [Malloy's] state of mind. It is her
determination which happens to corroborate the determination
that [the defendant] testified to. On that basis, I would like
to offer that."10
10
It is difficult to discern which particular visits and
records were of interest to the defense. On appeal the defense
references various visits and records, most of which involve
Malloy but not Dr. Kenia. These include an April 12, 2004,
record observing, "Pt. states she did hit face last pm
intentionally because she was frustrated"; a June 18, 2004,
record which reads, "pt admits to self-inflicting injury [with]
spoons, forks [and] knives in her room"; a July 7, 2004, report
where "pt states will write in book daily when feels frustrated
instead of hurting self"; and a report from what appears to be
November, 2004, involving "stair surfing" and a fall down cement
steps. The defendant also references in his brief an April 12,
2005, visit during which Holli reported that Haleigh had been
limping since they returned from a hotel stay where Haleigh
surfed on cement stairs. At trial, several other visits with
Malloy and Dr. Kenia were referenced. These include a January
10, 2005, report where Haleigh "admit[ted] to hitting self
[with] hammer"; an August 5, 2005, report reflecting a variety
13
The trial judge would not admit the medical provider
evidence to corroborate the defendant's own beliefs. The judge
emphasized that the defendant never spoke to Dr. Kenia or
Malloy. The judge further concluded that the evidence was being
offered for the impermissible purpose of corroborating Holli's
and Haleigh's hearsay statements, as he determined "no one could
tell" from the bruises alone whether a child had been hit by
another, and the medical providers' testimony would necessarily
be based on these statements.
A defendant in a criminal case has a constitutional right
to present evidence, and that right extends to proof of facts
that make a defendant's or another witness's testimony more
credible. See Commonwealth v. Emence, 47 Mass. App. Ct. 299,
301 (1999). The admission of such corroborative evidence turns
on its relevancy, and rests in the discretion of the trial
judge. See Commonwealth v. Galvin, 310 Mass. 733, 747 (1942)
("[A] trial judge may in his discretion allow a witness to
testify to facts and circumstances corroborative of his
testimony"); Commonwealth v. DeBrosky, 363 Mass. 718, 725 (1973)
(hotel registration records admissible in judge's discretion to
corroborate testimony of witness that group was registered in
motel); Commonwealth v. Emence, 47 Mass. App. Ct. at 301-302
of bruises and wounds diagnosed as self-injury; and a similar
July, 2005, report.
14
("The very existence of information that, as a matter of common
sense and experience, supports the credibility of a witness
prompts the conclusion that, so long as it is not remote, it
ought to be admitted. . . . It is not necessary that the
evidence in question bear directly on the issue or be conclusive
of it").
The excluded evidence here involves the novel use of
medical testimony and reports to buttress the defendant's
credibility on the wanton or reckless mens rea element of the
offense. The essential argument is that the excluded evidence
from the medical providers would have corroborated the
defendant's testimony (and therefore his defense) that he
reasonably believed Holli when she told him that Haleigh's
injuries resulted from self-abuse, and that he reasonably
concluded that Haleigh was being appropriately treated by
medical professionals, and that he therefore did not need to
take additional actions to protect her. According to the
defendant, the admission of the challenged testimony, namely,
that the providers were indeed treating her injuries on numerous
occasions and diagnosing them as self-inflicted and as not
requiring further medical treatment or other action, would have
corroborated the inferences the defendant drew to the same
effect.
15
We conclude that this evidence was sufficiently relevant to
the mens rea element of the offense and corroborative to be
admissible in the judge's discretion. See Commonwealth v.
Emence, 47 Mass. App. Ct. at 301-302. See also Commonwealth v.
Twitchell, 416 Mass. 114, 126-130 (1993) (defendants were
entitled to present affirmative defense grounded on belief that
their conduct was not violation of law, based on reliance on
Christian Science church publication on legal obligations of
Christian Scientists, even if publication was later determined
to be wrong, and publication should have been put before jury).
"However, we need not decide whether the judge's ruling
excluding the evidence amounted to an abuse of discretion
because its exclusion did not prejudice the defendant's case."
Commonwealth v. Smith, 460 Mass. 385, 398 (2011). See
Commonwealth v. Aguiar, 78 Mass. App. Ct. 193, 205-206 (2010)
("Under the prejudicial error standard, the reviewing court must
be able to say with fair assurance that the error did not
influence the jury, or had but very slight effect").
Most importantly, the multiple eyewitness accounts of the
defendant's own brutality, and his knowledge and acceptance of
Holli's brutality, overwhelmingly support the jury's
determination that he was not merely a duped bystander. For
example, in addition to Haleigh's sister's testimony that she
saw the defendant and Holli repeatedly push Haleigh down the
16
basement stairs, Weiss testified that the defendant was present
when she saw Holli hit Haleigh in the lower leg with an aluminum
bat with Haleigh's name on it. Before Haleigh could answer,
Holli struck her with the bat and Haleigh cried and fell to the
floor. Holli made her get back up, and the defendant and Holli
repeated the interrogation and assault. Holli explained to
Weiss, while the defendant was still present, that she was using
Haleigh's bat because it would look like Haleigh was hitting
herself. Weiss also recounted the defendant striking the back
of Haleigh's hands with a "tubular wand" made out of plastic
that was about two feet long. Other brutal acts by the
defendant were described by additional witnesses.
Important differences between the medical providers' and
the defendant's access to Haleigh also detract from the excluded
evidence's probative value. Unlike the medical providers, the
defendant lived in the home and saw Haleigh on a daily basis.
His observations, unlike theirs, were direct and
contemporaneous, and not susceptible to distortion or
obscuration by delayed reporting. Trial evidence demonstrated
that Holli kept significant control over the timing and
circumstances in which Haleigh would be seen by her health
providers. The jury could infer that Holli took steps to
mislead the physicians, but did not conceal her abuse in the
home. For example, Holli told Weiss, "If I kick an existing
17
bruise, there is no new evidence." Similarly Holli's calls to
the home health provider and the pediatrician about Haleigh
being asleep with the flu, when Haleigh had just suffered a
traumatic head injury, and Holli's refusals of their offers to
see Haleigh, seem calculated to mislead the medical providers.
Additionally, the medical records are not devoid of suspicions
of abuse. Notations in the medical records show at least two
reports of suspected abuse were filed in January, 2005, and May,
2005, in accordance with G. L. c. 119, § 51A.
We also take into consideration the limited purpose for
which the defendant offered the excluded evidence, namely, to
merely corroborate his belief that Haleigh was being
appropriately treated by her medical providers.11 As such, the
value of its admission was limited to bolstering that
proposition, and it was not offered to establish its truth, a
point counsel recognized. See Commonwealth v. DeBrosky, 363
Mass. at 725; Commonwealth v. Williams, 30 Mass. App. Ct. 543,
548 (1991) (not unreasonable for counsel to elicit otherwise
inadmissible testimony of victim's state of mind where it could
be used to corroborate defendant's insanity defense). Given
this limited purpose, any prejudice that accrued from its
exclusion was similarly minimized.
11
Corroborative evidence is defined in Black's Law
Dictionary 414 (4th ed. 1968) as "[e]vidence supplementary to
that already given and tending to strengthen or confirm it."
18
Here the probative value of the medical providers' proposed
testimony in terms of corroborating the defendant's own beliefs
was particularly limited because the defendant never spoke to
the medical providers despite Haleigh's numerous injuries, their
severity and suspiciousness, and his superior knowledge of what
was occurring in the home. A jury would undoubtedly question
why any parent would not speak to a doctor when his child was
continually suffering such horrible injuries. When the
defendant's failure to speak to the medical providers in these
circumstances is combined with multiple eyewitness accounts
describing his own abuse of Haleigh and his presence when Holli
abused Haleigh, any corroborative value of the medical providers
is virtually extinguished.
In addition, the corroborative testimony was largely
cumulative of other proof that informed the jury of incidents of
self-abuse reported by Haleigh and treatment and monitoring of
Haleigh for these injuries. In particular Krzyzek, the clinical
case coordinator, testified that she visited the home weekly
during the year preceding the last incident and observed bruises
on Haleigh and heard Haleigh's explanations for the injuries.12
Krzyzek explained that she stayed in regular communication with
12
Krzyzek testified that she saw bruises on Haleigh, but
was told by Haleigh that she hit herself in the knees with a
hammer, that her sister had "clocked" her in the face with a
flashlight, and that she had hurt her throat choking on a
"grinder."
19
"Holli, Haleigh, DSS,[13] the therapist, [and] Malloy", and that
Malloy was assigned to do regular body checks on Haleigh.
Defense counsel was also able to elicit from Dr. Barron that she
had reviewed the medical records of Dr. Kenia and Malloy, and
those records showed that Malloy regularly examined Haleigh,
usually on a weekly basis, and that in July, 2005, Malloy
observed bruises and abrasions that she characterized as "self-
injury."14
In sum, we are convinced for all of these reasons that the
exclusion of this limited evidence did not influence the jury,
or had but very slight effect.
13
The Department of Social Services, now known as the
Department of Children and Families (DCF).
14
Finally, even if the jury were inclined to credit some of
the defendant's testimony regarding his lack of knowledge of,
and participation in, the brutality, the evidence would have
been inculpatory with respect to an alternate theory of guilt.
To this point the focus has been on the objective measure of
wanton or reckless conduct, but there is a subjective measure:
"[i]f the grave danger was in fact realized by the defendant,
his subsequent voluntary act or omission which caused the harm
amounts to wanton or reckless conduct, no matter whether the
ordinary man would have realized the gravity of the danger or
not." Commonwealth v. Welansky, 316 Mass. 383, 398 (1944). See
Commonwealth v. Pugh, 462 Mass. 482, 496-497 (2012). If the
defendant truly believed Haleigh was engaging in self-injurious
behavior, a belief he argues was bolstered by the excluded
evidence, then leaving tools and other instruments all over the
house with which Haleigh could harm herself was strong proof of
wanton or reckless behavior. See Commonwealth v. Hendricks, 452
Mass. 97, 103-105 (2008) (engaging in high-speed nighttime car
chase with police while three year old was in back seat
constituted wanton or reckless behavior). As even Krzyzek
testified, if she had seen tools out like a hammer or pliers,
she would have considered them unsafe for Haleigh.
20
b. Additional arguments against the exclusion of the
medical provider evidence. The defendant also raises several
additional arguments regarding the medical provider evidence for
the first time on appeal. We review for a substantial risk of a
miscarriage of justice. See Commonwealth v. Ivy, 55 Mass. App.
Ct. 851, 859 (2002).
The defendant contends that the opinion testimony should
have been offered for its truth to prove what he calls a "third
party culprit" theory because it shows that Haleigh, rather than
the defendant, was responsible for her injuries. This
represents a significant shift from his position at trial where
defense counsel emphasized that he was not offering the medical
evidence for its truth, but rather to corroborate that the
defendant, like the doctors, was "fooled" by Holli. Blaming
Haleigh for all of these horrible injuries was not a viable
trial strategy, as trial counsel undoubtedly correctly
understood and carefully avoided. His defense was crafted to
focus on the reasonableness of the defendant's beliefs and
assumptions regarding the abuse, not whether Haleigh was
actually inflicting all the injuries on herself.
Regardless, we consider this third-party culprit evidence
irrelevant to count one, as neither Dr. Kenia nor Malloy treated
Haleigh's head injury and therefore could offer no direct
testimony on whether it was self-inflicted. Moreover, the
21
thrust of the defense at trial to count one was never self-abuse
but rather that the injury was inflicted by someone other than
the defendant. Thus, exclusion of the medical provider
testimony on self-abuse certainly did not create a substantial
risk of a miscarriage of justice on this count.
We also discern no such risk on count two, involving
multiple injuries. The record makes clear that many of the
injuries observed on Haleigh's body were either not seen by the
providers or not referenced in their records. The omitted
injuries included two wounds Barron specifically identified as
not having been self-inflicted, namely, the injury consistent
with being whipped by a wire and the multiple burns to Haleigh's
chest that were about one week old. Other omitted injuries
included the curvilinear or "C"-shaped laceration and bruising
on her buttocks consistent with blunt force trauma using a thin
metal object; injuries consistent with blunt force trauma on
multiple occasions using a hard object with a "D" shape
(inferably, from whippings with a belt and buckle); and parallel
linear restraint injuries on her leg and left hand. The
defendant provides no explanation of how the excluded evidence
suggests that any of these injuries could reflect self-abuse.
Finally, as explained above, there was ample evidence of self-
22
abuse before the jury, which the jury considered in their
verdict.15
The defendant also claims that his inability to impeach
Barron with the medical providers' diagnosis of self-abuse
created a substantial risk of a miscarriage of justice. We
disagree. Barron was confronted with at least one instance of
the medical providers' diagnosis of self-abuse and acknowledged
the diagnosis and discounted it. Further exploration of Dr.
Kenia's and Malloy's diagnosis of particular injuries with
Barron would have opened the defense up to an expert attack on
the competence of the medical providers' care of Haleigh. See
Commonwealth v. Wall, 469 Mass. 652, 663-665 (2014) (failure to
impeach witness is generally not reversible error).
Finally, the defendant argues that Holli's and Haleigh's
statements were admissible because they were made for the
"purpose of medical diagnosis or treatment." Bouchie v. Murray,
376 Mass. 524, 529 (1978). See Commonwealth v. Irene, 462 Mass.
600, 611-615, cert. denied, 133 S. Ct. 487 (2012) (discussing
standards for admitting medical records and opinions). See also
Commonwealth v. Arana, 453 Mass. 214, 231 (2009). Even if we
15
Finally, evidence of Haleigh's self-abuse, and the
defendant's knowledge of it, would be inculpatory on the
alternative theory that he was wanton or reckless in leaving
tools around the house; thus, as discussed above, its exclusion
could not create a substantial risk of a miscarriage of justice
on this ground as well.
23
were to assume, without deciding, that some of Holli's or
Haleigh's statements may have been admissible for this purpose,
we discern no substantial risk of a miscarriage of justice for
the reasons discussed above and because they were cumulative of
testimony given by Krzyzek, the defendant, and others.
c. Exclusion of Holli's statement to Weiss as alternative
third-party culprit. The defendant argues for the first time on
appeal that he should have been permitted to elicit from Weiss
that Holli told Weiss that Haleigh's misbehavior was so severe
that Holli had to use extreme measures to discipline her. The
defendant asserts this evidence was probative of Weiss's motive
and intent to push Haleigh down the stairs when Weiss was alone
with her on the morning of Sunday, September 11. At trial,
however, the defendant sought to admit this statement on the
ground that it was relevant to show Holli's and the defendant's
states of mind and to show Weiss's bias. Because the issue has
not been preserved, we review the error, if any, to determine if
it created a substantial risk of a miscarriage of justice. See
Commonwealth v. Rivera, 425 Mass. 633, 636-637 (1997).
There is no such risk where evidence supporting Weiss's
testimony that Haleigh never woke up while she was with her on
September 11, was overwhelming, to say nothing of the virtually
nonexistent possibility that Haleigh rose from her "sick" bed
and engaged in behavior that was so "severe" that she had to be
24
kicked or pushed down the stairs to be controlled. Even the
defendant testified that Haleigh began to feel ill on Saturday,
September 10, and that he did not see her walking around at any
time after he left for the mall on Saturday night.
d. Exclusion of Weiss's prior bad acts. The defendant
proffered testimony from a witness who was in Weiss's daycare in
2004. He would testify that Weiss would duct tape a "binky" in
his mouth and tell him that "if he was going to act like a baby,
she would treat him like a baby." She would also "tie [his
older brother] in a chair and lead [the chair] across the room."
According to the defendant the evidence was probative of Weiss's
motive and intent to injure Haleigh, as part of a third-party
culprit defense. We agree with the Commonwealth that the judge
did not abuse his substantial discretion in excluding these
incidents where they involved different children and were
markedly different in terms of the degree of force employed.
See Commonwealth v. Hunter, 426 Mass. 715, 716-717 (1998);
Commonwealth v. Bregoli, 431 Mass. 265, 274 (2000).
2. Wand as a dangerous weapon. There is no merit to the
defendant's contention that the evidence was insufficient to
establish that the plastic tube or wand the defendant used to
strike Haleigh's hands was dangerous. "The essential question,
when[, as here,] an object which is not dangerous per se is
alleged to be a dangerous weapon, is whether the object, as used
25
by the defendant, is capable of producing serious bodily harm."
Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984). The
evidence that the two-foot-long wand was used to repeatedly
strike Haleigh on the back of the hands and caused her to scream
and cry so loudly that Weiss, on another floor of the house,
heard her and came to her aid was sufficient to permit the jury
to conclude that it was being used in a manner capable of
producing serious bodily injury. See, e.g., Commonwealth v.
Appleby, 380 Mass. 296, 303-305 (1980) (riding crop);
Commonwealth v. Cruz, 430 Mass. 182, 194-195 (1999) (duct tape);
Commonwealth v. Barrett, 12 Mass. App. Ct. 1001, 1002 (1981)
(aerosol spray can); Commonwealth v. Rossi, 19 Mass. App. Ct.
257, 261 (1985) (large ring worn on hand); Commonwealth v.
Marrero, 19 Mass. App. Ct. at 922-923 (boots); Commonwealth v.
McIntosh, 56 Mass. App. Ct. 827, 830-831 (2002) (windowpane).
3. Sufficiency of the evidence to sustain the conviction
related to the brain injury. On appeal, the defendant makes a
somewhat confusing argument that the evidence was insufficient
to support his conviction on count one. We discern no merit to
this argument. The trial evidence sufficiently establishes the
defendant's wanton or reckless conduct. Haleigh's sister had
seen both the defendant and Holli kick Haleigh down the basement
stairs on numerous occasions and described the defendant as
pushing Haleigh down the stairs on September 10. Weiss also
26
observed Holli beat Haleigh, with the defendant sometimes
participating and other times observing without objection.
Thus, the evidence demonstrated that he was participating in the
abuse of Haleigh, including pushing her down the stairs, or was
knowledgeable that it was occurring and was permitting it to
happen. See Commonwealth v. Torres, 442 Mass. 554, 568 (2004),
quoting from G. L. c. 265, § 13J(b) ("Whatever forms of conduct
might come within the term permit[ting]" another to commit
assault and battery, encouraging such batteries by hitting the
children himself, and then turning them over to Fappiano for
further abuse, would surely come within the concept of
'permit[ting]' such a battery").16 Given the extent of this
abuse of Haleigh by both the defendant and Holli, including
their punishing of Haleigh by pushing her down the stairs, the
jury were warranted in finding the defendant wanton or reckless
even if he was not present and it was Holli who threw Haleigh
down the stairs when the brain injuries occurred. See
Commonwealth v. Welansky, 316 Mass. 383, 387 (1944) (defendant
nightclub owner not present on night of fatal fire);
Commonwealth v. Pugh, 462 Mass. 482, 496-497 (2012);
Commonwealth v. Robinson, 74 Mass. App. Ct. 758-759 (2009).
Moreover, his conduct after the injury was wanton or reckless,
16
In any event, there was ample evidence to refute the
notion posited by the defendant on appeal that Haleigh alone
caused her head injury.
27
as "a reasonable person, knowing what the defendant knew, would
have realized that there was a high likelihood that [the child]
would suffer a substantial bodily injury if she did not receive
timely medical attention." Id. at 758.
4. Motion for new trial. The defendant presses three
claims on appeal that he argued in his motion for new trial:
counsel's failure to utilize certain impeachment evidence at
trial, the failure of trial counsel to obtain an expert, and the
judge's denial of an evidentiary hearing on the new trial
motion. We discern no merit to the arguments.
A judge's decision to deny a motion for a new trial "will
not be disturbed unless a review of the defendant's case shows
that the decision, if not reversed, will result in 'manifest
injustice.'" Commonwealth v. Vazquez, 69 Mass. App. Ct. 622,
631 (2007), quoting from Commonwealth v. Delong, 60 Mass. App.
Ct. 122, 127 (2003). "[T]he decision whether to decide the
motion on the basis of affidavits or to hear oral testimony, is
left largely to the sound discretion of the judge."
Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981). See
Commonwealth v. Grace, 397 Mass. 303, 312-313 (1986).
a. Impeachment evidence. Contrary to the defendant's
contention, counsel's failure to impeach Weiss with ambiguous
evidence -- the omission from her prior written statement to
police dated September 19, 2005, that the defendant was present
28
when she saw Holli beating Haleigh with the bat on one
particular occasion -- did not deprive him of an "otherwise
available, substantial ground of defence." Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Wall,
469 Mass. at 663-665 (generally failure to impeach a witness
does not constitute ineffective assistance of counsel). As
previously explained, defense counsel effectively cross-examined
Weiss on her change in testimony, her failure to intervene to
prevent the abuse, and the circumstances in which she eventually
implicated the defendant and Holli.
b. Failure of counsel to obtain an expert on Munchausen
syndrome by proxy (MSBP). The defendant claims that his
attorney was ineffective for failing to obtain an expert to
testify that Holli was suffering from MSBP. In support of this
claim, the defendant attached two affidavits and reports from
Dr. Robert Chabon, and Beth Wechsler, a licensed social worker,
to his motion for new trial. Each expert had prepared the
materials in April, 2011, on behalf of Pamela Krzyzek and her
employer, Brightside, Inc., to defend a civil lawsuit brought by
Haleigh's legal guardian. Wechsler described MSBP as a
condition involving caregivers who cause injury to someone else,
often a child, in order to be viewed as "a loving rescuer of a
child who has severe problems." Dr. Chabon explained that the
"family constellation typically includes fathers who are 'away
29
at work' a great deal and are completely oblivious and are
uninvolved in the process that involves numerous office visits
and hospitalizations of their own children." According to Dr.
Chabon, "[n]early all individuals who come into contact with
[MSBP] cases experience some resistance to believing that
mothers could intentionally harm their children in this
horrifying way. The disbelief is in part engendered by a
dramatic discrepancy between the public presentation and the
private reality of these families" (emphasis supplied). See
Commonwealth v. Robinson, 30 Mass. App. Ct. 62, 74 n.10 (1991),
citing People v. Phillips, 122 Cal. App. 3d 69, 76-77, 78-79, 85
n.1 (1981), for a description of MSBP.
Both Dr. Chabon and Wechsler gave an opinion that Holli
presented a case of MSBP and that in the circumstances neither
Krzyzek nor her employer reasonably could have been expected to
determine that Haleigh was the victim of child abuse.
Because the proffered evidence was prepared in relation to
defending a social worker, the materials failed to address the
issue at bar, namely, whether the defendant was among those
reasonably misled. The reports discuss Holli's deception that
was directed solely toward her medical providers and, as Dr.
Chabon notes, "dramatic" discrepancies occur between the public
presentation (medical office visits) and the family home. That
information concerning the defendant's role was not considered
30
by Wechsler or Dr. Chabon is clear from the detailed list of
sources they reviewed, which omits the transcript from the trial
and interviews with Weiss, Haleigh's sister, and any other
witnesses who saw the defendant abuse Haleigh.
Absent evidence that Holli's deception extended beyond her
public presentation to the professionals working with Haleigh,
the defendant has failed to demonstrate that MSBP would have
been relevant in assessing his role in the abuse. The motion
judge similarly concluded that the evidence "would not have
exculpated [him] as it does not directly contradict the
eyewitness testimony that the defendant was present and partook
in the violent acts against Haleigh." In these circumstances,
the defendant has not shown that counsel's behavior fell below
that of an ordinary fallible lawyer and likely deprived him of
an otherwise available, substantial ground of defense. See
Commonwealth v. Saferian, 366 Mass. at 96.
c. Hearing on motion for new trial. The defendant argues
that he should have been granted a hearing on his motion for new
trial because the evidence regarding MSBP was newly discovered.
According to the defendant, the experts' proffered opinions in
the materials attached to his motion were dependent on discovery
from the related civil trial, materials which were not released
until after he had been convicted. As the motion judge found,
"the defendant's attorneys could have uncovered any link to MSBP
31
through the information provided by Haleigh's medical providers,
[DSS], and law enforcement investigators,"17 particularly because
MSBP, also known as factitious disorder by proxy, had been
identified as a disorder well in advance of the defendant's
trial. See Commonwealth v. Robinson, supra; American
Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 781-783 (4th ed. text revision 2000). Also,
trial defense counsel had informed appellate counsel that he had
considered MSBP at the time of trial and concluded it was not
relevant. Thus, the evidence related to MSBP was not newly
discovered. See Commonwealth v. LeFave, 430 Mass. 169, 176
(1999).
Judgments affirmed.
Order denying motion for new
trial affirmed.
17
The DSS workers whose depositions were reviewed by Dr.
Chabon and Wechsler were on the defendant's witness lists.