DocketNumber: No. 08-P-518
Citation Numbers: 73 Mass. App. Ct. 721, 901 N.E.2d 151, 2009 Mass. App. LEXIS 237
Judges: Grasso
Filed Date: 2/23/2009
Status: Precedential
Modified Date: 10/18/2024
A grand jury returned indictments charging Michael Riley and Carolyn Riley with murder in connection with the death of their four year old daughter, Rebecca. On motion of the defendants pursuant to Commonwealth v. McCarthy, 385
The evidence presented to the grand jury established probable cause that Michael Riley and Carolyn Riley murdered Rebecca, and did so in at least one of the aggravated ways amounting to murder in the first degree.
1. Background. The presentment spanned many weeks, during which the grand jury heard from thirty witnesses and received fifty-eight exhibits totaling more than 7,658 pages. The evidence, which was disturbing and graphic, established probable cause that the defendants committed murder in the first degree, intentionally killing Rebecca by feeding her clonidine, a powerful medication, well above prescribed dosages, until she died on December 13, 2006. We present only the barest outline of the evidence.
Michael and Carolyn lived with their three children, Gerard (age eleven), Kaitlynne (age six), and Rebecca (age four), in an apartment that they shared with James McConnell (Carolyn’s half brother), his fiancée Kelly Williams, and Williams’s son, Brandon. Michael, who was abusive, preferred his car to the children. Michael and Carolyn subsisted primarily on supplemental security income disability payments from Social Security
Carolyn gave the children clonidine to quiet them down and make them “pass out.” While Rebecca and Kaitlynne were prescribed one-half pill dosages, Carolyn never cut the pills in half, always giving whole pills. She kept extra prescription bottles full of clonidine in her house and carried the medication in her purse when she went out. To assure that she always had extra on hand, Carolyn devised ways to hoard clonidine. She would fill prescriptions early and claim that she was short because she had lost or damaged other prescriptions.
Carolyn knew that any increase above the prescribed dosage could be fatal. Dr. Kayoko Kifuji, who prescribed the medication for Rebecca, had warned Carolyn about clonidine’s dangers and, particularly, the danger of increasing Rebecca’s dosage.
In the weeks before Rebecca’s death, the amount of extra clonidine doled out to quiet the children escalated. Rebecca was sedated fifteen hours at a time, from 5 p.m. until 7:30 or 8:00 a.m. the following morning. Michael insisted that the children be medicated. Whenever they began to annoy him, he told Carolyn to shut them up with clonidine — telling her to “give them their pills” and “give them their meds.”
A school nurse, Rebecca’s therapist, teachers, and others voiced repeated concerns regarding the amount of medication that Rebecca was receiving. They told Carolyn frequently that it was not right, and that she should get a second opinion. The school nurse, who had never seen a child on such “heavy duty” medications, became so alarmed that she contacted Dr. Kifuji.
Rebecca coughed throughout the entire night. On Monday morning, rather than taking Rebecca to the doctor’s office, the defendants took her with them to the Social Security office in Quincy to inquire about benefits. Michael was insistent that they be there in time for the 9:00 a.m. appointment. Rebecca vomited in the car en route, and again at the Social Security office. When they returned home, Michael complained that Rebecca had embarrassed bim by “puking” at the Social Security office.
Throughout the remainder of the day, Rebecca was vomiting, coughing, walking around the apartment in a daze, and refusing to eat. Michael refused to let Rebecca come into the bedroom that he shared with Carolyn. McConnell remonstrated that they should take Rebecca to the doctor’s office or the emergency room, and offered to take her himself. Carolyn told him that they had an appointment with the doctor on Tuesday.
On Tuesday, Rebecca continued to be very ill, but the defendants did not take her to the doctor. Again, they took her to the Social Security office. Michael was angry over having to reschedule his appointment. McConnell, who observed that Rebecca was vomiting, incoherent, and having trouble breathing, became so enraged that he threatened Michael physically. The defendants told McConnell that they would take Rebecca to the doctor the following day for a scheduled appointment. They then put Rebecca in her bedroom and locked themselves in theirs.
Throughout the night, Rebecca attempted to go into the defendants’ bedroom on several occasions. Each time, Michael told her “no” and yelled at her, “You little bitch, Get the fuck back to your room.” Rebecca was walking stiffly and appeared oblivious. At 1:00 a.m., McConnell heard Rebecca moaning, gasping, and gargling. He cleaned some vomit off her face and kicked in the door to the defendants’ bedroom. He yelled at them to call an ambulance and said that he thought Rebecca was dying. After conferring with each other for a few minutes, the defendants opened the door, brought Rebecca into the room, and told McConnell that she would be fine until they took her to the doctor in the morning.
Rebecca was coughing constantly and annoying Michael as she lay in bed with them. He told Carolyn to give Rebecca some extra clonidine so that Rebecca would sleep and not keep waking everyone up. Although Carolyn had already given Rebecca some extra clonidine at 10 p.m., she gave Rebecca some more. After being given the clonidine, Rebecca curled up on the floor.
When they awoke in the morning, the defendants discovered that Rebecca was dead. Responding paramedics found Rebecca lying on the floor next to the defendants’ bed wearing just a diaper. She had been dead for some time; rigor mortis had set in and her blood had pooled. Thick, dry, red-tinged vomitas was caked around her mouth and nose.
The cause of death was intoxication due to the combined effects of clonidine, Depakote, dextromethorphan, and chlorpheniramine. The amount of clonidine in Rebecca’s system alone was fatal. Her heart and lungs were damaged from the prolonged abuse of prescription drugs. Death from an overdose of clonidine would be slow and painful. Rebecca’s heart would not pump fast
The Commonwealth also presented evidence of the defendants’ behavior in the aftermath of Rebecca’s death that the grand jury could view, at very least, as uncaring and indicative of guilt.
2. Discussion. The judge erred in dismissing so much of the indictments against each defendant as alleged murder in the first degree and in restricting the Commonwealth’s proof of malice aforethought at trial to third prong malice. To require more than was presented to the grand jury here conflates and confuses the accusatory role of the grand jury, the adjudicatory role of the petit jury, and the quantum of proof required at two very different stages of criminal proceedings.
a. Nature and function of the grand jury. The grand jury occupies a unique place in our jurisprudence. Comprised of citizens who sit independently and in secrecy, the grand jury determines whether sufficient cause exists to justify requiring a person to undergo the “public accusation of crime, and ... the trouble, expense and anxiety of a public trial” before a jury of his peers. Jones v. Robbins, 8 Gray 329, 344 (1857). The right of indictment on probable cause is “one of the securities to the innocent against hasty, malicious and oppressive public prosecutions.” Ibid. Commonwealth v. McCravy, 430 Mass. 758, 761-762 (2000). Indeed, the right to presentment and indictment by a grand jury is a right enshrined, as to serious crime, in art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Mayfield, 398 Mass. 615, 622 n.3 (1986).
b. Requisites for indictment. In keeping with the grand jury’s function as a bulwark against unfounded criminal prosecution, an indictment requires a finding of probable cause. See Lataille v. District Ct. of E. Hampden, 366 Mass. 525, 532 (1974). The quantum of evidence required to indict and commence prosecution is, however, considerably less exacting than that required of the petit jury that adjudicates guilt. “When testing the suf
Concomitants of the grand jury’s investigative and screening function are relaxation of the kind of evidence on which the grand jury may rely and the review to which we subject grand jury proceedings. “As long as the evidence before the grand jury was sufficient to warrant a conclusion of probable cause and the integrity of the proceeding was unimpaired, we do not disturb an indictment.” Commonwealth v. Noble, 429 Mass. 44, 48 (1999). “Any further review of grand jury proceedings would add delay and complexity without serving any significant purpose.” Ibid. A reviewing court does not scrutinize the thought processes of grand jurors and reviews the sufficiency of the evidence according to the objective standard of probable cause to arrest. Commonwealth v. DePace, 442 Mass. 739, 744 (2004), cert, denied, 544 U.S. 980 (2005). Nor do we require the Commonwealth “to inform a grand jury of the elements of the offense for which it seeks indictment or of any lesser included offenses.” Commonwealth v. Noble, supra.
While there is a preference for use of competent testimony before a grand jury, a court generally will not inquire into the competency or sufficiency of the evidence before the grand jury. See Commonwealth v. Robinson, 373 Mass. 591,592 (1977); Commonwealth v. McCarthy, 385 Mass, at 161-162 & n.4. Indeed, an indictment may be based solely on hearsay. See Commonwealth v. Gibson, 368 Mass. 518, 522-525 (1975). The weight and credibility of the evidence is wholly for the grand jury. See Attorney Gen. v. Pelletier, 240 Mass. 264, 310 (1922).
Here, the grand jury returned murder indictments against the defendants in the statutory form prescribed by G. L. c. 277, § 79, alleging that “on or about December 13, 2006, [each] . . . did assault and beat Rebecca Riley with intent to murder her, and by such assault and beating did kill and murder the said Rebecca Riley.”
The defendants’ argument poses a question not addressed in DePace, supra, viz., whether the evidence before the grand jury must establish probable cause for murder and one of the aggravating forms specified in G. L. c. 265, § 1, in order to support an indictment for murder in the first degree. We conclude that there must be such evidence because, as required by art. 12, a defendant may not be convicted of an infamous crime for which he was not indicted by a grand jury. See Jones v. Robbins, 8 Gray at 347-349; Commonwealth v. Barbosa, 421 Mass. 547, 549 (1995) (no one may be convicted of crime punishable by term in State prison without first being indicted for that crime by grand jury).
Contrary to the judge’s ruling and the defendants’ arguments, however, we conclude that the evidence before the grand jury sufficed both as to murder and the aggravating elements of murder in the first degree. Viewing the presentment in the light most favorable to the grand jury’s decision to indict, we conclude that the evidence was sufficient to establish probable cause for murder under any of the three prongs of malice. Cf. Commonwealth v. Levesque, 436 Mass, at 452. From the evidence presented, including all of the defendants’ conduct toward Rebecca in the days preceding her death, the grand jury could reasonably infer that the defendants intended to kill Rebecca or cause her grievous bodily harm. Beyond the fact that the defendants’ actions themselves established probable cause that they had motive and intent to kill or cause Rebecca grievous bodily harm,
Moreover, even had the presentment only sufficed to support third prong malice, the Commonwealth’s proof of malice at trial should not have been restricted as the judge did. “We have never required that there be an exact match between the evidence presented at trial and that presented to the grand jury.” Commonwealth v. Clayton (No. 1), 63 Mass. App. Ct. 608, 612 (2005). So long as the evidence suffices to establish probable cause for murder under any of its prongs, the Commonwealth is free to prove malice under any of its prongs at trial and need not present the same theory or evidence as before the grand jury. See ibid.
We conclude, as well, that the evidence sufficed to establish probable cause that the defendants murdered Rebecca with deliberate premeditation and with extreme atrocity or cruelty.
Matters of intent are rarely proved by direct evidence and are most often proved circumstantially. Just as a petit jury may infer a person’s knowledge and intent from the facts and circumstances presented, see Commonwealth v. Casale, 381 Mass.
The order dismissing the indictments for murder in the first degree and limiting the Commonwealth’s proof of murder at trial is reversed. The matters are remanded for trial.
So ordered.
Malice aforethought as an element of murder may be proved by establishing any one of three so-called prongs of malice: (1) the defendant intended to kill the victim (the first prong); (2) “the defendant intended to do the victim grievous bodily harm (the second prong); or (3) in the circumstances known to the defendant, a reasonably prudent person would have known that, according to common experience, there was a plain and strong likelihood that death would follow the contemplated act (the third prong).” Commonwealth v. Vizcarrondo, 427 Mass. 392, 394 n.3 (1998).
The judge denied the defendants’ companion claim, which asserted that the presentment impaired the integrity of the grand jury by knowingly using false or distorted evidence to obtain an indictment. See Commonwealth v. Salman, 387 Mass. 160, 166-168 (1982); Commonwealth v. O’Dell, 392 Mass. 445, 446-452 (1984). Although this aspect of the judge’s ruling is not immediately appealable by the defendants, we have considered the issue and agree with the motion judge. See Commonwealth v. Levesque, 436 Mass. 443, 455 (2002).
At the time of Rebecca’s death, Carolyn had only a small number of pills on hand, when she should have had a much greater supply remaining.
Rebecca’s pediatrician had no record of any telephone calls about or appointments for Rebecca in the days preceding her death.
General Laws c. 265, § 1, states in pertinent part: “Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, ... is murder in the first degree. Murder which does not appear to be murder in the first degree is murder in the second degree. The degree of murder shall be found by the jury.”
The statutory form prescribed by G. L. c. 277, § 79, authorizes the following language to be used in an indictment alleging murder in the first degree: “That A.B. did assault and beat C.D., with intent to murder him . . . and by such assault and beating did (kill and) murder C.D. (and the jurors further say that the defendant is guilty of murder in the second degree and not in the first degree). This may be added if murder in the first degree is not alleged” (emphasis in original).
Because the evidence suffices to establish probable cause for one or more of the aggravating circumstances that amount to murder in the first degree, the Commonwealth is free at trial to prove murder in the first degree under any of the aggravating circumstances set forth in the statute. See Commonwealth v. Clayton, 63 Mass. App. Ct. at 612. See also Commonwealth v. Phillips, 452 Mass. 617, 623 (2008). The prosecution is subject, of course, to applicable rules of notice, particulars, and discovery as provided in the rules of criminal procedure. See, e.g., Mass.R.Crim.P. 13, as appearing in 442 Mass. 1516 (2004); Mass.R.Crim.P. 14, as amended, 444 Mass. 1501 (2005).