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Commonwealth v. Dragotta

Supreme Judicial Court of Massachusetts, Essex

March 21, 2017

COMMONWEALTH
v.
HEATHER DRAGOTTA.

          Heard: December 6, 2016.

         Indictments found and returned in the Superior Court Department on October 1, 2010.

         The cases were heard by Richard E. Welch, III, J.

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

          Patrick Levin, Committee for Public Counsel Services, for the defendant.

          Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.

          Present (Sitting at Lawrence): Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. [1]

          BUDD, J.

         After a jury-waived trial, Heather Dragotta was convicted on one indictment charging her with wantonly or recklessly permitting another person to commit an assault and battery that resulted in bodily injury to her infant daughter (victim).[2] G. L. c. 265, § 13J. The injury, an interhemispheric subdural hematoma, that is, bleeding between the hemispheres of the victim's brain, was recklessly inflicted by Dragotta's boy friend, Steven Amos, after Dragotta left the victim in his sole care while she took a shower.[3] The Appeals Court affirmed Dragotta's conviction, and we granted her application for further appellate review. Commonwealth v. Dragotta, 89 Mass.App.Ct. 119, S.C., 475 Mass. 1102 (2016). Because we conclude that the evidence was insufficient to establish that her conduct was wanton or reckless, we reverse the conviction.

         Background.

         Much of the evidence presented at trial was directed to explaining the victim's injuries and their cause. Now, however, we are primarily concerned with Dragotta's state of mind when she left the victim in Amos's care to take a shower. Viewing the evidence at trial in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the trial judge, as fact finder, reasonably could have found the following facts.

         The victim, who was Dragotta's first child, was born on April 27, 2010. Amos was not the victim's father, but he participated actively in her care and acted as her father in all respects.[4] After the birth, Dragotta and Amos temporarily stayed with Dragotta's parents in Weare, New Hampshire, so that the victim's grandmother could help with the baby. Also living in the Weare house were Dragotta's brother and his girl friend, as well as two of Dragotta's sisters. Dragotta, Amos, and the victim stayed in an upstairs bedroom in the Weare house for the first three weeks of the victim's life. Dragotta was the victim's primary caregiver during this time, with the grandmother taking care of her for a few hours each night to allow Dragotta and Amos to rest. For the first week of the victim's life, Amos spent almost all his time with Dragotta and the victim. He thereafter returned to work, but when he returned to the Weare house each evening, he again spent his time with Dragotta and the baby.

         Two days after the victim was born, Dragotta took her to a pediatrician for a well-baby check. According to the pediatrician, the victim was healthy at that time and he had no concerns about Dragotta's conduct.

         At some point in the first two weeks of the victim's life, the grandmother noticed an unusual intermittent cracking sound in the victim's upper back. She testified that the sound did not appear to be associated with any particular movement and that it did not appear to be causing any pain. Dragotta telephoned the pediatrician's office to ask about it, and a nurse there told her there was no cause for concern so long as it was not bothering the victim.

         Over the next two weeks, the victim became more fussy. Both the grandmother and Dragotta attributed this to gas-related discomfort, which is common in breastfed infants. Dragotta and Amos gave the victim over-the-counter medications in an effort to relieve her symptoms, without success. On May 11, 2010, at another well-baby appointment with the pediatrician, Dragotta mentioned her concern about the gas-related symptoms. The pediatrician showed Dragotta a "bicycle" technique to help relieve the symptoms: laying the victim down on her back and then gently grasping her legs and rotating them, either alternately or together. The doctor explained that this can alleviate the ...


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