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Commonwealth v. Epps

Supreme Judicial Court of Massachusetts, Essex

July 14, 2016


          Heard: December 7, 2015.

         Indictment found and returned in the Superior Court Department on November 17, 2004. The case was tried before David A. Lowy, J., and a motion for a new trial, filed on October 17, 2011, was heard by him.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          David Hirsch for the defendant.

         David F. O'Sullivan, 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.

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

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

          GANTS, C.J.

         The defendant was convicted by a Superior Court jury of assault and battery on a child causing substantial bodily injury, in violation of G. L. c. 265, § 13J (b). The prosecution contended that the defendant violently shook the two year old child in his care based on medical testimony that the child was diagnosed with traumatic brain injury, and scans of her brain that showed retinal hemorrhages, subdural hematoma, and brain swelling, the three symptoms known as "the triad" associated with shaken baby syndrome. The defendant, when interviewed by the police, denied having injured the child and reported that, hours before the child's grievous injuries became manifest, she had fallen down the wooden stairs in her home and had later fallen off a kitchen stool, leaving a bump on her forehead. The Commonwealth's medical expert offered the opinion that injuries of the type and severity suffered by the child could not have been caused by the short falls described by the defendant. The defendant called no expert to offer an opinion to the contrary.

         In Commonwealth v. Millien, 474 Mass. 417, 418 (2016), we noted that "[t]here 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." We conclude that, in the unusual circumstances of this case, the absence of expert testimony that the child's injuries might have been caused by her accidental falls deprived the defendant of an available, substantial ground of defense, and thereby created a substantial risk of a miscarriage of justice. We therefore reverse the judge's denial of the defendant's motion for a new trial, vacate the conviction, and remand the case to the Superior Court for a new trial.[1]


         1. Evidence at trial.

         We summarize the evidence presented at trial in July, 2007. On October 9, 2004, Sara Comeau left for work early in the morning, leaving her two children, Veronica, age two, and Delilah, age four, in the care of the defendant, who was her live-in boy friend.[2] The two girls were still asleep in their bedroom; the defendant was awake but still in bed.

         The defendant told the police during two interviews on October 10 that, after Comeau left for work, Veronica woke up and he brought her into the bed with him. After one to two hours both woke up and the defendant sent Veronica downstairs by herself while he went to use the bathroom. He then heard Veronica cry and found her at the bottom of the stairs; based on what he saw and heard, it seemed that she had fallen down two or three wooden stairs. Veronica told him that she was all right. Veronica then sat on a stool in the kitchen eating cereal while the defendant played a video game. Veronica tried to get down from the stool by herself and fell.[3] He found her on the floor, picked her up, and saw a small red mark on the left side of her forehead. She cried briefly but then said that she was okay. The defendant gave her juice and sat her on the couch, where she then started coughing and vomited. The defendant cleaned up the vomit and gave her a bath. Later, Veronica vomited again when she was upstairs.[4]

         The defendant's friend, Jason Fletcher, arrived later that morning. When he arrived, the defendant told Fletcher that Veronica had fallen off the stool and Fletcher saw "a bump" above her left eye. The defendant and Fletcher played a football video game downstairs while the children played upstairs. At around noon, Comeau returned home on her lunch break and found the defendant in the living room with Fletcher, sitting on the couch and playing the football video game. Veronica was wearing pull-up underpants and a T-shirt, which was the same T-shirt Comeau had dressed her in when Comeau put her to bed the night before. Comeau saw that Veronica had a red, dime-sized mark on her forehead. Comeau asked the defendant what had happened, and he told her that Veronica had fallen off the stool while she was eating breakfast. She and the defendant then got into an argument about neither child being fully dressed. Before returning to work, Comeau went upstairs and dressed Veronica in pants and a T-shirt. During this time, Veronica said to her, "Mommy, I hit my head." According to Comeau, Veronica was not acting unusual at this time.

         After Comeau returned to work, the defendant and Fletcher continued playing the video game downstairs while the girls were playing upstairs. The defendant told the police during his interviews that, shortly after Comeau left, while he and Fletcher were playing the video game, he heard a "boom" from upstairs. He initially thought that it was the children jumping around to music, but then Delilah ran to the top of the stairs and yelled to the defendant that Veronica had fallen. The defendant stated that he went upstairs and found Veronica lying on her back with "her eyes . . . almost going in the back of her head." He began to give her cardiopulmonary resuscitation (CPR). She was limp and gurgling, and her stomach expanded and her arms flared up each time he breathed into her mouth. Her fingers were "like knots, " and her body stiffened as if she were having a seizure. He panicked and yelled for Fletcher. Fletcher came upstairs, and the defendant sent him to get Comeau from her work. The defendant told the police that, when his attempts at CPR failed, he tried to put a toothbrush in her mouth to create an airway.

         At trial, Fletcher testified that, while he was playing the football video game downstairs with the defendant, Delilah yelled from upstairs that Veronica had fallen. The defendant went upstairs while Fletcher played four downs of the football video game.[5] While the defendant was upstairs, Fletcher did not hear any "bangs, " "shouts, " or "noises." Because the defendant had not returned, Fletcher went upstairs "to see what was going on."[6] He then saw Veronica lying unconscious on a mattress in the girls' bedroom and the defendant giving her mouth-to-mouth resuscitation. The defendant sent him to get Comeau, and he drove to the nursing home where she worked.

         Comeau drove home immediately when she learned about Veronica's condition and saw Veronica on the couch in the living room with the defendant leaning over her. Veronica had a large lump on her head, which Comeau testified was "red and purple/black" in color. The defendant was attempting to administer CPR, but Comeau screamed and told him to stop because Veronica's stomach was raised and "she had too much air in her." Comeau asked the defendant what had happened, and he told her that Veronica had fallen down the stairs. Comeau telephoned 911, and the emergency medical technicians arrived. Fire fighter and emergency medical technician Robert Irvin said that Veronica was having difficulty breathing, her eyes were rolling back, and she was sweating profusely. According to Irvin, she had a "bang" on her head, a black eye, a small bang on her nose, and a red line across her chest, which, he said, looked "as if the child had leaned up against a chair or a table."

         A neighbor, Karen Grober, saw the fire trucks and ambulance and went outside to see what was going on. Grober testified that the defendant appeared "upset" and "worried." Grober asked him what had happened, and he said that he did not know, that he heard a big thump from upstairs, and that when he went upstairs Veronica was on the floor, with her eyes rolling back.

         Comeau followed Veronica to Lawrence General Hospital in a separate ambulance. When they arrived, Comeau saw a red mark under Veronica's ribs that had not been there when Comeau had dressed her at lunchtime. Comeau also saw red marks on the inside of both of her knees. Once the defendant arrived at the hospital, he told Comeau that Veronica had fallen down the stairs and had fallen off the breakfast stool, and that Delilah had yelled at the top of the stairs that Veronica had fallen a third time.

         At Lawrence General Hospital, medical professionals intubated Veronica to assist her breathing and took several X-rays, including a head computerized tomography (CT) scan. She was eventually "med-flighted" to Boston Children's Hospital, where she arrived unresponsive and was displaying "posturing, " which is an upper motor neuron sign signaling injury to the brain. She was placed in the pediatric intensive care unit. The head CT scan revealed a significant amount of swelling on the left side of Veronica's brain, as well as bleeding in the subdural space and the subarachnoid space. The swelling was such that the left side of the brain was extending over and encroaching into the right side of the brain, a condition known in the medical community as a midline shift. A craniotomy surgery was performed to help relieve the swelling and to help drain some of the blood that had collected.

         Dr. Celeste Wilson, a board-certified pediatrician and child abuse specialist, examined Veronica and found that her left pupil was fixed and dilated, and her right pupil was very sluggishly reactive to light. Although she was not an ophthalmologist, Dr. Wilson examined Veronica's eyes and found bleeding in the back of both eyes. An ophthalmologist subsequently examined Veronica and found bleeding, known as retinal hemorrhages, in both eyes, with approximately twelve hemorrhages on the right side and five hemorrhages on the left side. Dr. Wilson also found bruising over Veronica's right eye, as well as increased redness under the nostril and a bruise under her chin. Dr. Wilson observed additional areas of bruising or increased redness over Veronica's mid-chest, a bruise on her right upper back, a bruise on her left lower back, and bruising or increased redness on her right leg at the level of the knee on the outer side and on her left leg on the inner side.[7] Veronica was given an electroencephalogram, a test that measures seizure activity in the brain, as well as a magnetic resonance imaging test and repeat head CT scans. The CT scans revealed that a portion of Veronica's brain had infarcted, the medical term for the loss of function in part of the brain, as a result of the nerve injury. Tests did not reveal any spinal cord damage; neck injury, aside from some swelling in the tissues around the neck; or skull fracture.

         Dr. Wilson offered her opinion that these injuries were "consistent with non-accidental trauma." Specifically, she testified that Veronica's injuries were consistent with shaken baby syndrome, [8] which she described as a clinical diagnosis based on a constellation of findings that include subdural hemorrhage, retinal hemorrhages, and possibly bruises or fractures. She explained that shaken baby syndrome "is thought to occur as a result of significant acceleration/deceleration forces . . . when a caretaker vigorously shakes an infant such that the head moves back and forth." This shaking leads to strain and tension on the blood vessels in the brain, causing them to tear and release blood. When a blood vessel tears in the subdural space, it causes bleeding in the subdural space, i.e., a subdural hemorrhage. The shaking forces also cause shearing and tearing on the nerves of the brain such that they release a substance called cytokines, which then results in brain swelling.

         Dr. Wilson testified that the normal activities of a toddler, even one who is clumsy, would not account for the type of injuries she described. She also testified that blood testing was performed and did not reveal any sign that Veronica was suffering from a blood disease or blood disorder. Finally, she opined to a reasonable degree of medical certainty that a fall of three feet could not cause Veronica's injuries and that a fall down multiple stairs would be "extremely unlikely" to cause them. She stated that, apart from shaking, the circumstances that might cause a child to sustain these types of injuries would be a high speed motor vehicle accident or a fall from a building or from a height of "more than [ten] feet, more . . . on the order of [seventy] feet." On cross-examination, Dr. Wilson acknowledged that Dr. John Plunkett has conducted research indicating that the same types of symptoms as occur in shaken baby syndrome could occur from falls as low as three feet, but she stated that such findings are not widely accepted within the national community of pediatricians or recognized by the American Academy of Pediatrics. She also admitted on cross-examination that she could not say when Veronica's injuries were inflicted, and that it was possible for Veronica to have remained conscious for some period of time after their infliction.

         Comeau testified that Veronica was a clumsy child and fell down often, that she bruised easily, and that she was being treated for a blood disorder.[9] She said that Veronica and Delilah would jump off the couch and bed, and fight with each other. She gave Veronica a bicycle in June, 2004, and Veronica fell off and broke her arm several days later. The cast did not come off until the week before the incident. The defendant also described Veronica as "clumsy" and "accident prone" in his interview to the police, and described specific instances when Veronica had fallen, including three or four days prior when she ran into a door and sustained a bump on her head and a slight black eye. Grober similarly testified that she saw the girls outside every day and that Veronica was often falling down and "had a lot of accidents."[10]

         Comeau also testified that in August or September, 2004, the defendant told her he had slapped Veronica. Comeau saw a "big red welt and a handprint" between Veronica's legs and buttocks. During the police interviews the defendant admitted that he and Comeau "occasionally" gave the children a "slap on the butt" as a disciplinary measure. Nika Fontaine, Comeau's best friend and Delilah's godmother, testified that, when she approached Comeau's home on an unknown date, she saw through the screen door that the defendant put his hands on Veronica's arm and shook her while Veronica was on the ground standing.

         On the evening of October 10, the defendant waived the Miranda rights and agreed to be interviewed by Trooper Robert LaBarge of the State police and Detective Carl Rogers of the Haverhill police department. He also agreed to be interviewed later that evening by Trooper Brandon Arakelian of the State police. Throughout the recorded interviews the defendant denied causing Veronica's injuries, even after his interrogators told him that the doctors at Children's Hospital had determined that Veronica's injuries were intentionally inflicted and that they could not have been caused by an accidental fall.[11] The defendant also stated that he did not think Comeau had caused the injuries.[12]

         As a result of the events on October 9, Veronica is paralyzed on the right side of her body and cannot walk. According to Comeau, Veronica's cognitive abilities are seriously limited and she "can't comprehend."

         2. Closi ...

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