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Commonwealth v. LaBrie

Supreme Judicial Court of Massachusetts, Essex

March 9, 2016

Kristen A. LaBrie

         Argued November 2, 2015.

         Corrected March 17, 2016.

          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.

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          Michelle Menken for the defendant.

          Marcia H. Slingerland, Assistant District Attorney ( Kate Berrigan MacDougall, Assistant District Attorney, with her) for the Commonwealth.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.


          [46 N.E.3d 520] Botsford, J.

          The 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.

          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

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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 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, 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, 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 6-MP.

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          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 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 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

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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.[8] 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.[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 trans-

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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 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 medications[10] 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."

         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

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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 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: 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 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.

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c. 274, § 6.[14] [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).

         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, 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 (2014).

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          This 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.[15] With respect [46 ...

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