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Commonwealth v. Garcia

Appeals Court of Massachusetts, Bristol

September 24, 2018


          Heard: April 9, 2018

         Indictments found and returned in the Superior Court Department on April 1, 2011. The cases were tried before E. Susan Garsh, J.

          John J. Connors for the defendant.

          Yul-mi Cho, Assistant District Attorney, for the Commonwealth.

          Present: Meade, Hanlon, & Blake, JJ.

          HANLON, J.

         After a jury trial, the defendant, Elvis Garcia, was convicted of assault and battery on a child with substantial bodily injury, G. L. c. 265, § 13J (b); assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b); and reckless endangerment of a child, G. L. c. 265, § 13L.[1] He now appeals, challenging the sufficiency of the evidence, various aspects of the judge's instructions to the jury, and the prosecutor's closing argument. We affirm, and address the defendant's claims in turn.

         1. Background.

         The jury heard the following evidence.[2] On January 29, 2011, James, [3] the four year old victim, was admitted to Boston Children's Hospital (Children's Hospital) with a severe anal wound as well as extensive bruising over multiple areas of his body. James was seven years old at the time of trial and he testified that the defendant, a friend of his mother, inflicted the bruises as well as the anal injury by hitting him with a belt.

         James's mother[4] first developed a friendship with the defendant in the spring of 2010, shortly after the dissolution of her relationship with James's father. James, then three years old, lived with his mother and his older sister and brother in New Bedford. For a number of years, the mother had been addicted to "pills, "[5] but, prior to June of 2010, she was able to keep her life "in control" and maintain her job as a hair stylist.

         Prior to June of 2010, the apartment where the family lived was clean and "nice." James attended day care full time, and his sister attended with him in the afternoon at the end of her school day. Prior to June of 2010, James and his brother and sister appeared happy, clean, and normal. James would see his maternal grandmother almost every day and, along with his siblings, would attend family parties and holiday gatherings.

         After June of 2010, James's extended family saw the mother and James less frequently, and noticed that they attended fewer family events and parties. James's siblings would sometimes attend family events when the mother and James did not. Over the course of the summer and fall, on various occasions when family members did see James, some reported noticing bruises on his face. The cleanliness of the family's apartment deteriorated, and the mother was terminated from her job after being increasingly absent and late. During that time, both the mother and James were at the defendant's home almost every day. In addition, the mother frequently would leave James alone with the defendant, sometimes for hours or even days.

         During the summer of 2010, James's day care teachers noticed that James began to change. When he returned from a June vacation in Florida, James was distant and not like his usual self. When he got in trouble, he would become particularly emotional and start to cry, which had not been the case previously. The defendant started dropping James off on some days, and at one point told his teacher, "[I]f he doesn't listen, just tell him that you guys can . . . call me." At the end of July, his teacher noticed that James began to cling to her "more than usual." Also in July, a teacher noticed an apparent burn mark on James's inner thigh. In August, on one occasion, she noticed scratches on his face. Later that month, the defendant brought James in with a bruise on his cheek and said, "I'm sure he'll be perfect for you today."

         Also, that month, the mother changed the emergency contacts and the list of individuals permitted to pick up James from day care; she removed all of the other family members who had been on the list, including James's grandmothers and others, leaving only herself and the defendant on the list.[6] James, who had had very good attendance previously, began to be absent frequently in July and August of 2010. In September, the day care program discharged him because of excessive unexcused absences.

         In July of 2010, James's maternal grandmother came to visit the mother at work. The grandmother saw the defendant waiting outside in a car with James in his car seat. She was happy to see James as she had not seen him for a long time, and she ran to the car. James looked sad and was very quiet, and not like his normal self. As the mother came out of her workplace, the defendant told her forcefully to get into the car, ending the encounter.

         In August of 2010, the mother allowed James's paternal grandmother to take him on a vacation to Florida. During the trip, James complained frequently that his "bum" hurt. He would sit sideways, and would cry when he went to the bathroom. His grandmother looked at the area and saw a small cut.

         In mid-October, after James turned four years old, he visited with his maternal grandmother after a family apple-picking trip; this was the first time that she had seen James since July. Although James seemed happy, he told her that "his butt hurt." She gave him a bath, and observed that "his butt was red" and that he had a short, deep cut in the area.

         On October 25, 2010, the mother took James to his pediatrician. The pediatrician observed a rash on James's scrotum, buttocks, and anal area. He prescribed an antibiotic, an anti-inflammatory cream, and a medicine to protect the skin in the area. At a follow-up appointment on November 9, the doctor noted that there was a small ulcerative lesion around the anus, but that the rash did not seem worse, and had cleared on the buttocks. At a further follow-up visit three days later, he observed that the area appeared to be improving. On December 6, James returned to the office, and the doctor observed that the area appeared worse and had ulcers. He referred James to Children's Hospital the same day.

         James was admitted to Children's Hospital on December 6, 2010, [7] where doctors observed an irregularly shaped ulcer under the scrotum, and another ulcer on his anal area. James underwent various tests and examinations to rule out potential causes of the ulceration. Doctors ruled out infection but were ultimately unable to determine a cause for his condition. At the time of his discharge, after a six-day hospitalization, James's condition had "improved somewhat," although the ulcers were still present.

         In late 2010, James's maternal grandmother obtained the assistance of James's second cousin, who is an attorney, in filing a petition for legal guardianship of James. On January 27, 2011, the petition was allowed after a hearing at which James's father assented to the guardianship and the mother did not appear. James's maternal grandmother had last seen James in the mother's car two days earlier at his sister's school. At that point, she noted that James was able to sit without complaining, and that he had no visible injuries.

         After the cousin obtained guardianship of James on behalf of his maternal grandmother, the cousin was unable to locate either the mother or James until January 29, when the cousin was notified that the mother was in police custody. The mother refused to disclose James's specific location, but she eventually connected the cousin with Elizabeth Quinn, who was the girl friend of the defendant's best friend. The cousin engaged in "several conversations several minutes at a time" with Quinn over approximately twenty-five minutes, with male voices in the background of the telephone calls. Quinn eventually told the cousin to come to an intersection a couple of houses away from the defendant's home to receive James. Quinn directed her to report there with "no police."

         Quinn then retrieved James from the defendant's apartment, where James was sleeping on the couch. She brought him to the agreed-upon street corner and handed him to the cousin, who was accompanied by a State police officer. James was having a difficult time walking. He was extremely upset and crying, saying, "Make it go away," and that his "bum" hurt. He could not sit down. The cousin and the officer brought James to St. Luke's Hospital, where, a nurse later testified, "[h]e appeared afraid to me, he wouldn't . . . let me touch him." She observed "multiple bruises to his face, his eyes, a good per cent of his body, his back, his legs, arms." She identified photographs of the injuries she observed, including photographs of James's rectum, penis, and scrotum. The photographs were admitted in evidence. After several hours, hospital staff made a decision to transfer James to Children's Hospital.

         At Children's Hospital, examination confirmed that James had extensive bruising and abrasions over multiple areas of his body, including his forehead, cheek, arms, back, waist, buttocks, inner and outer thighs, legs, and shins. Superimposed on the bruising on James's thigh were three curvilinear marks that were suggestive of having been struck by a "flexible implement that's been doubled" onto itself. He had a cut under his chin, and blood behind his right eardrum.

         James also had a very deep anal wound: a widely split laceration extending from just behind his scrotum to his tailbone. His anus was completely detached from the skin around it and was "floating way up inside the buttocks." The wound had accumulated filth and fecal debris, and it appeared to be at least a couple of days old but was not infected. There was no abscess and no evidence of ulceration that could explain the injury. James ultimately required surgery to reconstruct the area.

         Dr. Steven Fishman, James's surgeon, opined that James's anal wound was induced externally by blunt force trauma, and that no natural disease process or hygiene issues could have created it. Dr. Fishman testified that, in over twenty years of experience as a pediatric surgeon, he had previously only seen a completely "floating" anus as a result of surgery. Dr. Fishman noted that, because of the tensile strength in the tissues in the area, if there is impact, there is a particular susceptibility to tearing in that spot. Without successful surgery to reconstruct his anus and perineum, Dr. Fishman testified that James risked having no control over defecation, or being unable to defecate.

         On January 31, 2011, police officers went to the defendant's apartment to search the premises. They knocked on the door, loudly said "Police," and waited. No one came to the door. They knocked and announced themselves several additional times and, receiving no answer, kicked the door in and entered the ...

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