Argued: September 8, 2014.
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.
Judgments affirmed. Order denying motion for new trial affirmed.
Michael J. Fellows & Myles D. Jacobson for the defendant.
Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.
Present: Berry, Kafker, & Maldonado, JJ.
[23 N.E.3d 138] 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 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 Strickland 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);  (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).
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 [23 N.E.3d 139] 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.
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 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 " 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. She stated that the red bruises on the child's body were consistent with blunt force trauma, also inflicted [23 N.E.3d 140] 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 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.
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. 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 sister and brother. Holli declined the home health aide's offer to come over and take a look at Haleigh. The next morning, Holli again spoke
to her [23 N.E.3d 141] 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. She testified that Holli reported that Haleigh had the stomach flu and had vomited twice; she 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 ...