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Commonwealth v. Millien

Supreme Judicial Court of Massachusetts, Middlesex

June 3, 2016

Oswelt Millien

         Argued December 7, 2015.

          Indictments found and returned in the Superior Court Department on December 23, 2009.

         The cases were tried before S. Jane Haggerty, J., and a motion for a new trial, filed on June 24, 2013, was heard by her.

          David Hirsch for the defendant.

          Kate Cimini, Assistant District Attorney, for the Commonwealth.

         The following submitted briefs for amici curiae:

          Seth Miller, of Florida, Katherine H. Judson, of Wisconsin, Adam W. Deitch & Lindsay A. Olson, of New York, & Mark W. Batten for The Innocence Network.

          Heather Kirkwood, of Washington, & David E. Meier for David Ayoub & others.

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          Matthew R. Segal, Dennis Shedd, & Chauncey B. Wood for Committee for Public Counsel Services & others.

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


          Gants, C.J.

          [50 N.E.3d 809] On the evening of October 20, 2009, the defendant's six month old daughter, Jahanna, was rushed to the emergency room, unconscious and unresponsive. She was diagnosed with traumatic brain injury, and scans of her brain showed retinal hemorrhages, subdural hematoma, and brain swelling, the three symptoms known as " the triad" associated with shaken baby syndrome. The defendant, who was the baby's sole caretaker when she became unconscious, claimed that Jahanna accidentally fell backwards from the couch where she was sitting and landed on the wooden floor. After Jahanna's physicians concluded that her brain injuries could not have been caused by an accidental fall from the couch but were instead caused by a violent shaking, the defendant was charged and later convicted by a jury of assault and battery on a child causing substantial bodily injury (head injuries), in violation of G. L. c. 265, § 13J ( b ), and assault and battery on a child causing bodily injury (fractured vertebrae), in violation of G. L. c. 265, § 13J ( a ).[1]

         There is a heated debate in the medical community as to whether a violent shaking of a baby alone can generate enough force to cause the triad of symptoms of traumatic brain injury, and as to whether these symptoms can sometimes be caused by a short accidental fall. At trial, the jury heard only one side of this debate, because the defense attorney did not retain a medical expert to offer opinion testimony or to assist him in cross-examining the Commonwealth's medical experts. We conclude that, in these circumstances, where the prosecution's case rested almost entirely on medical expert testimony, the defendant was denied his constitutional [50 N.E.3d 810] right to the effective assistance of counsel because, by not providing the jury with the other side of this debate, his attorney's poor performance " likely deprived the defendant of an otherwise available, substantial ground of defence." See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974).[2]

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          1. Evidence at trial.

          We summarize the evidence presented at trial. The defendant was in his early twenties when his girl friend, Amanda Leavitt, told him that she was pregnant. He urged her to " keep" the baby, and accompanied her to medical appointments during the pregnancy. Although he was disappointed when he learned that Leavitt was going to have twin girls, preferring a boy, he was happy when the girls, Jahanna and Taeja, were born on March 27, 2009, and was with Leavitt in the operating room when she had her cesarean section.

         Before the babies were born, Leavitt moved to the home of her mother, Dianna Gagnon, who lived with her boy friend and Leavitt's teenaged siblings in Woburn. The defendant visited nearly every day and generally stayed overnight after the twins were born. The defendant shared the responsibilities of child care with Leavitt; he fed, changed, and played with the twins daily. When the twins were approximately five months old, Leavitt found a job at a restaurant, working several nights a week from between 4 and 5 p.m. to between 9 p.m. and midnight, and during that time the defendant, Leavitt's mother, or the defendant's mother or sister cared for the twins. In September, 2009, Leavitt and the twins moved to a townhouse apartment in Woburn, and the defendant lived there with them.

         The defendant was inexperienced in caring for babies, but he sought advice regarding child care from Leavitt and Gagnon. No witness ever saw him spank or abuse the twins, but at times, he patted the twins too roughly while trying to burp them and on a few occasions walked away from the changing table while he was changing them. He was responsive to criticism, however, when other caretakers instructed him how better to care for the twins. Jahanna was the fussier baby, and the defendant was more comfortable caring for Taeja than he was caring for Jahanna. But when Jahanna was colicky, the defendant sometimes would pick her up and walk around and talk with her. Gagnon described the defendant as a man of quiet demeanor whom she never saw angry and never heard shout, and whom she never saw hit or grab anyone.

         There were no complications regarding the twins' birth, but Jahanna soon developed various health problems. She was " cranky," cried often, and was difficult to feed. When Jahanna was approximately two months old, her primary care pediatrician, Dr. Elizabeth Burba, placed her on a more gentle formula. Nine days later, Leavitt telephoned the doctor's office and reported that

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Jahanna had vomited blood. She was referred to the emergency room at Winchester Hospital, where she was diagnosed with gastro-esophageal reflux and was prescribed antacid medication. Dr. Burba noted at Jahanna's three-month " well visit" that she was " taking her feeds now" and gaining weight. Leavitt discontinued using the medication after " a couple of months" because Jahanna was doing well. When Jahanna was approximately four months old, Leavitt noticed that one [50 N.E.3d 811] of her legs " would kind of be limp." She testified, " I would hold her up and one leg would be touching the ground and one would be in the air, like a bend in the knee." Leavitt took Jahanna to Dr. Burba's office, where she was diagnosed with a " hip click." She was given a hip ultrasound, which was normal. On September 29, 2009, Leavitt reported that Jahanna had again vomited blood, and returned to the Winchester Hospital emergency room, where she was given an abdominal x-ray, which was normal, and once again was prescribed the antacid medication. At her six-month " well-visit" on October 2, Jahanna was " no longer fussy or irritable," and her " gross motor development examination," which showed that she could roll over from side to side, move objects from one hand to another, and sit up with a bit of support, was normal for her age. During her care of Jahanna, Dr. Burba saw no sign that Jahanna had been abused.

         On October 20, 2009, Leavitt was at work and the defendant was alone in her Woburn apartment caring for the twins. At approximately 8:45 p.m., Robert Jeffrey, who lived next door with his wife, Eileen, knocked on the door to Leavitt's apartment, which was slightly ajar, and asked the defendant for a cigarette. He saw the defendant sitting on the couch in the living room feeding Jahanna, with Taeja sitting in " a little bouncy thing" on the floor. Their demeanor appeared " good" ; Jahanna " was just whining like she was hungry." The defendant said he did not have any cigarettes, so Robert[3] drove to a nearby gasoline station, approximately four minutes away. When Robert parked in front of his apartment, about ten minutes later, the defendant ran over, looking " [v]ery shooken up," and asked to use Robert's telephone to call his girl friend because something had happened to one of the babies. Eileen, who was a certified nurse assistant, was walking towards Robert from the steps of the Jeffrey home when Robert returned. She heard the defendant say that the baby fell,

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and when Eileen asked if she was okay, the defendant said he did not know. She then immediately walked into the defendant's apartment and saw Jahanna on the couch. Jahanna was pale and unresponsive, and her eyes were closed. Robert then drove the defendant and Jahanna to the emergency room at Winchester Hospital.

         At trial, Eileen testified that she was sitting at her computer on the first floor of her apartment when Robert left to find cigarettes, and she went outside when she heard him returning. Although the walls between her apartment and the Leavitt apartment were thin, and she could often hear noises coming from the Leavitt apartment, Eileen heard no banging or other noise during the time that Robert was gone.

         Jahanna arrived in the emergency room of Winchester Hospital at approximately 9:18 p.m. Dr. Atima Delaney, the attending pediatric physician in the emergency room who treated Jahanna, obtained a medical history of Jahanna from the defendant that evening. Dr. Delaney described the defendant as " worried and quiet." The defendant told Dr. Delaney that he had been sitting on the couch while Jahanna had been lying on the couch. When he turned around to grab a bottle, Jahanna fell off the couch. When he turned back, he saw the baby lying on her back on the hardwood floor. She immediately vomited, and then became unconscious.

          [50 N.E.3d 812] A computerized tomography (CT) scan taken at Winchester Hospital revealed a large subdural hematoma (a collection of blood between the dura[4] and the brain), brain swelling, and a comminuted skull fracture located in the left parietal skull.[5] The CT scan also showed a " midline shift," meaning that one side of the brain had started to push over to the other side because of the brain swelling. Because of the severity of Jahanna's injuries, she was transferred to Children's Hospital, where a pediatric neurosurgeon, Dr. Mark Proctor, performed emergency brain surgery. When he opened the dura inside the skull to relieve the brain swelling, the fluid, including clotted blood, was under such high pressure that it " squirted up about one and a half to two feet." The presence of clotted blood revealed that the injury had happened " within hours." Dr. Proctor did not see extensive injury to the brain itself,

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but saw that the brain was swelling to such an extent that he needed to remove more bone to relieve the pressure. He located the torn blood vessel that was the cause of the hemorrhage, which was in the subdural space towards the top of the head, to the left of the midline.

         On the afternoon of October 21, Inspector Timothy Donovan of the Woburn police department interviewed the defendant at Children's Hospital. The defendant recounted essentially what he had told Dr. Delaney, but with some additional details. He said he was sitting in the middle of a two-seat loveseat, watching a baseball game on the television, and was preparing to feed Jahanna. He placed her to his right on the loveseat, facing the back of the couch. He reached back to grab a bottle and saw Jahanna fall off the couch. When he picked her up from the floor, her eyelids were closed, she was not crying, and her head was " bobbling." He saw that she was breathing, but unresponsive, so he took off her pajamas, brought her upstairs to the bathroom, placed her in her " bathinet," and sprinkled water on her face. When he saw that she was still unresponsive, he put her pajamas back on, and ran next door to speak to the Jeffreys. When the inspector told him that Jahanna's injuries were consistent with her having been shaken, the defendant replied that the only shaking he ever did was bouncing Jahanna on his knee. The inspector later measured the distance from the floor to the seat of the couch and determined that it was seventeen and one-half inches tall.

         The defendant spoke that same day with Donna Hughes, an investigator with the Department of Children and Families, and told her essentially what he had told Dr. Delaney and Inspector Donovan, but with one important additional detail: he said that, when Jahanna fell, she fell backwards and her head hit the floor.

         An examination by a pediatric ophthalmologist, Dr. Iason Mantagos, on October 22 found no sign of direct trauma to the eyes. But he found in both eyes extensive hemorrhages (blood spots) in all four quadrants of the retina (the multiple layers of cells that include the photo receptors that are stimulated by light and create impulses that are sent to the brain), from the center to the periphery of the retina, including on the optic nerve (which sends information from the retina to the brain) and in the macular (the area of the eye responsible for sharpest vision). Dr. Mantagos [50 N.E.3d 813] testified that " [t]his finding is consistent with trauma and the force that's required to cause such bleeding is extensive." In describing the different kinds of trauma that can produce retinal

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hemorrhages, he included the extreme shaking of an infant, which causes the contents of the eyeball to move rapidly back and forth at different speeds, which in turn causes the vitrious (the jelly that fills the eye) to separate from the retina and put traction on the blood vessels.[6] Claiming reliance on the medical literature in peer-reviewed journals, he opined on redirect examination that the retinal hemorrhaging he found would be consistent with a fall only if it were from the highest point of a swing to a cement floor, a fall down a flight of stairs in a stroller, or a fall from a height of one or two stories and hitting the ground.

         Dr. Alice Newton was the medical director of the Child Protection Program at Children's Hospital, and has written extensively on shaken baby syndrome, which she testified was now called abusive head trauma.[7] She examined Jahanna on October 21 to determine whether Jahanna's injuries were caused by child abuse. Dr. Newton testified that, " when one refers to shaken baby syndrome, one refers to a combination of findings" : bleeding around the brain (subdural hematoma), brain injury, and retinal hemorrhages.[8] She testified that Jahanna displayed all three of these injuries, and she described how shaking can cause each of them. She opined to a " reasonable degree of medical certainty" that the cause of Jahanna's subdural hematoma, brain injury, and retinal hemorrhages was that Jahanna was " violently shaken." She stated as the basis of her opinion that the constellation of injuries sustained by Jahanna fit the definition of shaken baby

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syndrome and " do not have any other medical explanation." She declared that Jahanna " did not have some type of massive accidental head injury" and that " the amount of force in a short household fall is not very significant." Dr. Newton also offered a motive for violently shaking a baby, explaining that when a caretaker is unable to handle a crying infant, he or she sometimes shakes the infant as a mode of discipline or simply out of frustration.

         She further testified that in addition to the brain bleeding, brain injuries, and retinal hemorrhages, Jahanna was diagnosed with fractures of multiple ribs and of the tibia of her right leg, both of which were in [50 N.E.3d 814] an advanced state of healing and were " probably at least a month old." Dr. Newton also noted that Jahanna had compression fractures of thoracic vertebrae eleven and twelve. She said she could not opine when the vertebral fractures occurred, because they do not heal with new bone formation like ribs and the tibia, but she did offer the opinion that these fractures were caused by " some type of crushing force," which could include the extreme flexion caused by violent shaking.

         Dr. Newton opined to a reasonable degree of medical certainty that, of all the injuries suffered by Jahanna, " the only injury ... that could possibly be related" to a short fall was the skull fracture, but that this was " very unlikely," because short falls are more likely to result in linear, rather than comminuted, fractures. She testified that the skull fracture required " some type of blow," such as " slamming the child against something." [9] She stated that one could not determine when a skull fracture occurred simply by looking at the CT scan because it heals in the same way that vertebrae heal, but she felt strongly that the skull fracture was " acute, although that's a little bit harder to be definitive about."

         The defendant called three witnesses in his defense: his sister, his mother, and himself. His sister testified that she never saw the defendant shake, spank, or throw Jahanna, and never saw him compress Jahanna's ribs. His mother said little regarding the defendant's care of the twins because, when the twins were at her house, she or the defendant's sister would feed and change them, not the defendant. The defendant's testimony was ...

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