November 2, 2015.
March 17, 2016.
Indictments found and returned in the Superior Court
Department on July 3, 2009.
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.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Michelle Menken for the defendant.
H. Slingerland, Assistant District Attorney ( Kate Berrigan
MacDougall, Assistant District Attorney, with her) for the
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
N.E.3d 520] Botsford, J.
defendant, Kristen LaBrie, was charged with the attempted
murder of her young son and related assault 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 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 that the judge's instructions were legally incorrect.
Finally, the defendant argues that the judge erred in denying
her motion for [46 N.E.3d 521] 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.
1. Factual background.
jury could have found the following facts. The defendant had
a son, Peter, the victim, who in 2006 was seven
years old and presented with significant medical and physical
concerns. 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. 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
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 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
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, 2006.
Pharmacy records indicate that this prescription was not
filled until April, 2007. It appears that Peter achieved
remission of the cancer by the end of this first phase.
phases two (" consolidation" phase) and three
(" inner maintenance" or " delayed
intensification" phase) of the treatment, Friedmann
prescribed another oral chemotherapy agent, 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 [46 N.E.3d 522] 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
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 giving Peter the 6-MP,
she never indicated there were any difficulties giving Peter
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
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 reported to the home care nurse that Peter was taking
the liquid form of 6-MP, and " it was going
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 [46 N.E.3d 523] 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. The doctor telephoned the defendant
and told her they " really needed to get some lab tests
done." When the defendant brought Peter to the hospital
the next day, the doctor discovered that Peter had suffered a
relapse, meaning that the cancer had returned. 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,
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 trans-
plant, a complicated procedure with a low 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
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.
theory of the defense was that the defendant's failure to
administer Peter's medications 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 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 [46 N.E.3d
524] 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."
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
trial, a jury found the defendant guilty of all four
charges. 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 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.
1. Attempted murder:
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. 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 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.
crime of attempted murder is defined in G. L. c. 265, §
16, and is distinct from the crime of
general attempt, G. L.
c. 274, § 6. [46 N.E.3d 525] 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, 59 N.E. 55 (1901) (attempt to burn building);
Commonwealth v. Kennedy, 170 Mass.
18, 48 N.E. 770 (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, 614 N.E.2d 1027 (1993).
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, 927 N.E.2d 993 (2010) (attempted indecent
assault and battery); Commonwealth v.
Bell, 455 Mass. 408, 412, 917 N.E.2d 740 (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, 742 N.E.2d 1107
(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, 949 N.E.2d 916 (2011);
Commonwealth v. Ortiz, 408 Mass.
463, 470, 560 N.E.2d 698 (1990); Commonwealth
v. Gosselin, 365 Mass. 116, 120-121, 309
N.E.2d 884 (1974); Commonwealth v. Cline, 213 Mass. 225, 225,
100 N.E. 358 (1913); Commonwealth v.
Sullivan, 84 Mass.App.Ct. 26, 28-30, 992 N.E.2d 380
(2013), S. C., 469 Mass. 621, 15 N.E.3d 690
court's jurisprudence on attempt dates back to
Kennedy, 170 Mass. 18, 48 N.E. 770, 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, 59 N.E.
55, 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. With
respect [46 ...