Commonwealth v. Dragotta , 89 Mass. App. Ct. 119 ( 2016 )

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14-P-1796 Appeals Court
COMMONWEALTH vs. HEATHER DRAGOTTA
(and one companion case1).
No. 14-P-1796.
Essex. January 12, 2016. - February 25, 2016.
Present: Kafker, C.J., Cohen, & Blake, JJ.
Assault and Battery. Wanton or Reckless Conduct. Parent and
Child, Duty to prevent harm. Child Abuse. Practice,
Criminal, Hearsay, Witness. Evidence, Expert opinion,
Hearsay. Witness, Expert.
Indictments found and returned in the Superior Court
Department on October 1, 2010.
The cases were heard by Richard E. Welch, III, J.
Jacob B. Stone for Steven Amos.
Patrick Levin, Committee for Public Counsel Services, for
Heather Dragotta.
Marcia H. Slingerland, Assistant District Attorney, for the
Commonwealth.
KAFKER, C.J. After a joint jury-waived trial in the
Superior Court, defendant Heather Dragotta was convicted of
1
The companion case is against Steven Amos.
2
wantonly or recklessly permitting another to commit an assault
and battery upon her infant daughter causing bodily injury (head
injury), and defendant Steven Amos was convicted on three
indictments charging assault and battery upon the same child
causing bodily injury (two rib fractures, head injury, and arm
fracture).2 On appeal, Dragotta and Amos both claim that the
evidence was insufficient to sustain their convictions, and Amos
adds that the expert testimony exceeded the permitted scope of
such evidence.
Sufficiency of the evidence. Viewing the evidence in the
light most favorable to the Commonwealth, the judge was
warranted in finding the following. E.g., Commonwealth v.
Latimore, 378 Mass. 671, 677-678 (1979).
The victim was born on April 27, 2010, without any
complications. Dragotta is the victim's mother. Amos was
Dragotta's boyfriend but not the father of the child. On the
evening of June 3, 2010, Dragotta and Amos brought the five and
one-half week old infant to the Lawrence General Hospital
emergency room because she was not using her right arm and cried
when it was touched. The X-rays taken at the hospital showed
2
The judge acquitted Dragotta of two counts of permitting
an assault and battery causing substantial bodily injury related
to the rib fractures and the arm fracture. Before trial began,
Dragotta's motion to dismiss three counts of assault and battery
was allowed, as was so much of Amos's motion to dismiss that
related to the three counts of permitting bodily injury.
3
that not only was the victim's right arm fractured, but that her
left arm was bowing. The fracture of the right arm was a
displaced transverse fracture, meaning that the fracture went
entirely across the bone and the two ends were slightly offset.
These findings prompted the hospital to file a report of abuse
with the Department of Children and Families (DCF), pursuant to
G. L. c. 119, § 51A (51A report). The victim was transferred to
Boston Children's Hospital, and Dr. Celeste Wilson, the medical
director of the child protective unit, was sought for
consultation.
The next day, Wilson examined the victim and spoke to
Dragotta and Amos about the cause of the injuries. Dragotta
told Wilson that she returned home on June 3 with the victim
after visiting her relatives in New Hampshire, and she gave the
baby to Amos while she went into the kitchen. Shortly
thereafter, Dragotta noticed the victim was not using her right
arm.
Because of the unexplained injury to the victim's arm,
Wilson ordered a full skeletal survey (X-rays), a computerized
tomography scan (CT scan), and magnetic resonance imaging (MRI)
of the victim's head. The X-rays, as the Commonwealth's expert,
4
Dr. Paul Kleinman,3 testified, revealed seven rib fractures near
the spine, six rib fractures on the side and the front of the
ribs, one fracture of the right leg, five fractures of the left
leg, and fractures of the right and left arms. He testified
that rib fractures indicated the child's chest had been
compressed with a force equivalent to that which occurs in a
motor vehicle accident. Kleinman explained that rib fractures
are "very very uncommon in infants," in part because a baby's
rib cage is flexible; rather, they are "overwhelmingly seen in
children who have been victims of abuse." The location and
nature of the leg fractures were also very uncommon and would
have occurred from significant twisting and pulling forces that
are delivered to that extremity. According to Kleinman, the leg
fractures were highly specific for abuse. While the right arm
fracture was the single injury that an active child might incur,
neither that fracture nor the fracture to the left arm was
typical for a five and one-half week old infant who is not
mobile.
Kleinman described the fractures as being of various ages,
with the arm fracture being the most recent and the two
fractures to the lateral ribs being more recent than the other
fractures, having likely been incurred somewhere between seven
3
At the time of trial, Dr. Paul Kleinman was a staff
pediatric radiologist and director of the division of
musculoskeletal imaging at Boston Children's Hospital.
5
days and two to four weeks earlier.4 In Kleinman's opinion, all
of the victim's fractures were caused by inflicted injury.
Wilson reviewed the test conducted on the victim's head and
testified that there was a subdural hematoma or bleeding on the
brain. Wilson gave an opinion that the injury was the result of
inflicted trauma from an acceleration or deceleration motion to
the head. Two theories account for such an injury, either the
head goes back and forth in such a motion as to create a
whiplash or banging of the brain against the skull, or the head
may accelerate into a solid object causing the skull to stop
when it strikes the object while the brain continues going
forward.
Wilson further opined that the victim would have been in
pain when the fractures were inflicted, and she agreed that the
arm injury was "acute." Regarding the rib and leg fractures,
the victim would have been "fretful," "irritable," or "fussy"
when she was lifted or raised by others, or when her extremities
moved. Based on the "entire picture," Wilson formed the opinion
and testified that someone had inflicted injuries on this child
on more than one occasion.
4
The fracture to the two lateral ribs form the basis of one
of Amos's three convictions. Because Dragotta and Amos lived in
New Hampshire for two weeks of the child's life, more charges
that included other injuries may not have been brought because
the other injuries could not be dated to ensure they occurred in
Massachusetts.
6
Dragotta and Amos were first asked about these injuries on
Friday afternoon, June 4, 2010, by Detective Daniel Cronin and
by Amy Silverio, the DCF worker assigned to the case.
Interviewed alone, Dragotta explained that her infant daughter's
health was unremarkable until she was about two weeks old, when
she developed some gassiness and could be fussy at times. She
told her pediatrician about this at the well-being visit on May
11, 2010, and according to Dragotta, he recommended gently
moving the infant's legs in a bicycling motion to relieve the
gas and demonstrated the maneuver for her. Dragotta showed Amos
the maneuver when she got home.
When asked how she thought the victim could have sustained
her injuries, Dragotta became tearful and admitted that a
maneuver Amos used to help the victim relieve gas could have
broken her ribs. Dragotta described the maneuver as one in
which Amos would take the victim's "legs and push them towards
her stomach and push down to relieve some gas or stool."
Dragotta said Amos did this maneuver "pretty often" and
"consistently for about one week." She acknowledged that the
victim would cry when Amos did this. On one occasion, the
victim made a particularly disturbing sound that prompted
Dragotta to tell Amos not to do it anymore; she believed he
heeded her request.
7
Dragotta thought the injury to the victim's head and arm
were new. She suspected that her sister, who had briefly
watched the victim during her visit to New Hampshire on June 3,
may have done something. Dragotta told Silverio and Cronin that
her sister suffered from depression and had a "couple OUI's
[driving under the influence of alcohol]." Dragotta was
informed that DCF would be taking custody of the victim and was
visibly upset when she left the interview room and passed Amos.
Upon entering the interview room, Amos blurted out, "If I
tell you I hurt her, can she get her baby back?" Cronin
admonished him not to lie to protect someone else. Amos
immediately volunteered that he could explain the rib fractures
because he was "positive" he had broken her ribs. He
demonstrated how he put his hands behind the victim's knees and
pushed forcefully up and into the victim's abdomen. He said
this technique was something he had developed on his own; he had
not been shown how to do it. He acknowledged using a
considerable amount of force and that he "pushed hard all the
time."
When Amos did this, he said the victim would grunt, cry,
and defecate. According to Amos, Dragotta had seen him do it
three or four times. He said that the maneuver "relieved" the
victim for two to three hours and that he was doing it to help
Dragotta, who was stressed "paper thin." He admitted being
8
concerned that he was hurting the victim and that he was pushing
too hard.
About a week before the interview, around May 28, Amos
thought the technique was no longer working because nothing was
coming out of the victim's buttocks. He stopped doing the
technique because he was afraid he was causing damage to the
victim's internal organs and her ability to go to the bathroom
on her own.
Amos said he could also explain the head injury. During
that Memorial Day weekend, about the time he stopped doing the
knee-to-stomach maneuver, Amos used the victim "like a guitar,"
dipping and spinning her in the living room while he listened to
music and Dragotta took a shower. He said he had her in one arm
with a hand on her buttocks and two fingers around her neck
until he made a forward motion and removed his two fingers from
her neck leaving her head unsupported and her head came crashing
down on his collarbone. The victim was still too young to be
able to hold her head up, a fact Amos must have known as her
caregiver. The victim cried for a couple of minutes and he saw
bruising on her ear.
Although Amos initially denied having knowledge of what
could have caused the injury to the victim's right arm (which
prompted the visit to the emergency room), he admitted at the
end of the interview that he may have grabbed her arm too
9
tightly when she was lying on his chest on the evening of June
3, 2010.
The following Monday, June 7, 2010, Silverio and Cronin
interviewed Dragotta again, at her home. Her mother, Kim
Dragotta, was with her. Dragotta admitted seeing the bruised
ear during Memorial Day weekend and some bleeding in the
victim's eye.5 At the time, Dragotta asked Amos about it, and he
told her about the infant's head striking his collarbone while
he was dancing with her. Dragotta recognized the
inappropriateness of Amos's behavior and acknowledged to
Silverio and Cronin that Amos had no experience with infants.
Discussion. 1. Sufficiency of the evidence. Dragotta
argues on appeal that the evidence was insufficient to support
her conviction of wantonly or recklessly permitting Amos to
commit an assault and battery upon her child causing a bodily
injury, namely, the head injury.6 "Wanton or reckless conduct may
5
Wilson had also noticed a red spot in the victim's eye
during her examination.
6
Dragotta was convicted of only a single count that alleged
she "wantonly or recklessly permitted bodily injury to such
child or wantonly and recklessly permitted another to commit an
assault and battery upon such child, which assault and battery
caused bodily injury, to wit: interhemispheric subdural
hematoma" pursuant to G. L. c. 265, § 13J(b). "[T]he elements
of § 13J(b), fourth par., are (i) a child under fourteen; (ii)
in care and custody; (iii) a substantial bodily injury; (iv) the
defendant wantonly or recklessly permitted this substantial
bodily injury, or wantonly or recklessly permitted another to
commit an assault and battery on the child causing substantial
10
occur by act or omission where there is a duty to act and the
failure to so act provides a 'high degree of likelihood that
substantial harm will result to another.'" Commonwealth v.
Robinson, 74 Mass. App. Ct. 752, 759 (2009), quoting from
Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). See, e.g.,
Commonwealth v. Pugh, 462 Mass. 482, 496-497 (2012). The wanton
or reckless conduct here was Dragotta's continuing to allow Amos
to care for the infant knowing that he did not know how to do
so, that he had not followed instructions in the past, and that
he had repeatedly and forcibly mishandled the child in such a
manner as to cause her substantial harm.
The evidence that we consider under the Latimore7 standard
established that Dragotta regularly observed Amos push the five
and one-half week old victim's knees into her chest with such
force that she defecated. This was not at all like the gentle
bicycling maneuver that Dragotta had been taught, and which she
had explained to Amos. The force she saw applied was described
by the expert as similar to that typically associated with a
motor vehicle collision. The force here resulted in multiple
fractures of the ribs and fractures of the right and left leg.
In addition, the fractures were in various stages of healing
bodily injury." Commonwealth v. Roderiques, 462 Mass. 415, 422
(2012). See Commonwealth v. Robinson, 74 Mass. App. Ct. 752,
757 (2009).
7
See Latimore, 378 Mass. at 677-678.
11
confirming that this technique had been used on multiple
occasions. These fractures would have caused the child to be
irritable and fussy, and while that alone would not be
sufficient to cause a parent concern, in combination with having
observed Amos's maneuver, it should have plainly alerted
Dragotta to the high degree of likelihood that the victim was
being injured by Amos.
Finally, Dragotta's tearful response during her interview
with Silverio and Cronin, when she revealed that Amos's
technique for relieving gas may have broken the victim's ribs,
is direct proof that she knew the maneuver exposed the victim to
bodily injury. Even if the judge credited Dragotta's testimony
that she eventually told Amos to stop using this much force to
compel the infant to pass gas and defecate, she nonetheless
continued to allow him to provide unsupervised care for the
child despite her knowledge that he obviously did not know how
to care for the child safely, as later confirmed by the child's
subsequent, substantial injuries, including the head injury for
which Dragotta was held responsible for recklessly permitting.
In these circumstances, the judge could find that Dragotta
knew or should have known that there was a substantial risk that
Amos would injure the child if she remained in his unsupervised
care. See Commonwealth v. Garcia, 47 Mass. App. Ct. 419, 422
(1999) (even if there were no direct evidence that parents of
12
thirty-three day old infant were aware of multiple rib,
clavicle, and leg fractures, and a skull fracture, evidence of
unexplained bruises and recognition that infant was in pain was
sufficient circumstantial proof to conclude that "an ordinary
person in the same circumstances would have realized the gravity
of the danger"). See also Commonwealth v. Roderiques, 462 Mass.
415, 427 (2012) (evidence showed that defendant knew assaults
were occurring but wantonly and recklessly failed to intervene).
Similarly unavailing is Amos's claim that the evidence was
insufficient to support his convictions on three theories. He
first claims that the injuries occurred when he was acting in
loco parentis and attempting to care for the victim. The
excessive, unreasonable force Amos used breaking the infant's
ribs while trying to cause her to pass gas and defecate clearly
exceeded any imaginable loco parentis rights.8 See Garcia,
supra. His desire to amuse and interact with the infant
likewise did not encompass a right to spin and dip her
recklessly "like a guitar." See ibid. Finally, there was no
justification for the transverse fracture of the infant's arm.
8
In making this argument, the defendant cites Commonwealth
v. Dorvil, 472 Mass. 1 (2015), a parental discipline case.
While it is clear that the defendant was not disciplining the
infant, and he properly makes no such claim, we note that the
force he used was so excessive that it falls beyond that
permitted for discipline. See id. at 12 (a parent may not
discipline with force that causes or creates "a substantial risk
of causing . . . physical harm [beyond fleeting pain or minor
transient marks]").
13
Next, Amos argues that proof of recklessness is absent
because he was unaware that his conduct was likely to cause the
victim substantial harm. The claim belies the recognition in
his statement to Silverio and Cronin that the pushing maneuver
may have been causing organ damage, that using the infant as a
guitar and letting go of her head so that it crashed on his
shoulder may have caused the brain bleed, and that his grabbing
of the victim's arm so tightly may have broken it. Moreover,
proof of recklessness only requires that the defendant intended
to do the reckless act, not that he intended a specific result.
See Welansky, 316 Mass. at 398-399; Commonwealth v. Macey, 47
Mass. App. Ct. 42, 48 (1999). All that is required is that "an
ordinary person in the same circumstances would have realized
the gravity of the danger." Garcia, supra at 422. Here, there
is no question that there was sufficient evidence to support a
finding that Amos intended the acts that caused the multiple
fractures and subdural hematoma. We are also convinced on this
evidence that an ordinary person in the same circumstances would
have realized the substantial risk of injury to which he was
subjecting an infant by engaging in such conduct. See ibid.
Amos's third contention, that the Commonwealth was required
to prove that Amos had exclusive control of the victim, fails to
recognize that viewing the evidence and the inferences in the
light most favorable to the Commonwealth was sufficient to show
14
that Amos had control of the victim and that he inflicted the
injuries. See generally Macey, supra. The Commonwealth need
not "exclude all possible exculpatory interpretations of the
evidence." Ibid., quoting from Commonwealth v. Russell, 46
Mass. App. Ct. 307, 310 (1999).
2. Wilson's expert testimony.9 Next, Amos argues that
Wilson improperly testified to a neuroradiologist's opinion that
the subdural hematoma was acute, thereby depriving him of the
right to cross-examine the neuroradiologist. In giving her own
independent opinion, Wilson referenced a neuroradiologist with
whom she had consulted in reaching her opinion and that his
"impression" was that the injury had an "acuity to it" that made
it unlikely to date back to birth. Wilson made clear, however,
that she was capable of reviewing the scans of the victim's
head, that she had done so in this case, and that she had
reached her own conclusion that the injury was acute. Because
Wilson did not testify to the opinion of the neuroradiologist
but merely included the neuroradiologist's impressions as
material upon which she had relied in reaching her own opinion,
the defendant was not deprived of his rights under the Sixth
9
Amos claims that he objected to the "scope" of Wilson's
testimony but without citation to the record. The only
objection Amos lodged during Wilson's direct examination
challenged her ability to interpret and testify regarding the CT
scan and MRI results. The objection was overruled, and Wilson
testified that she could read such scans.
15
Amendment to the United States Constitution. Furthermore, he
was able to cross-examine Wilson on her testimony and the basis
for her opinion. See Commonwealth v. Barbosa, 457 Mass. 773,
785 (2010); Commonwealth v. Greineder, 464 Mass. 580, 593-594
(2013). See also Crowe v. Marchand, 506 F.3d 13, 17-18 (1st
Cir. 2007) (there is a custom and practice in the medical
profession that doctors routinely rely on observations reported
by other doctors, and it is unrealistic to expect a physician,
as a condition precedent to offering an opinion, to have
performed every test, procedure, and examination himself or
herself); Mass. G. Evid. § 703 (2015).
Amos adds to this argument that Wilson's testimony
regarding the neuroradiologist's impressions, as well as her
recitation of the details underlying her differential diagnosis,
ruling out other causes of the injury, violated the prohibition
against an expert presenting on direct examination the specific
information on which she relied. See Department of Youth Servs.
v. A Juvenile, 398 Mass. 516, 527-528 (1986); Greineder, supra
at 594; Commonwealth v. Jones, 472 Mass. 707, 713-715 (2015).10
10
Our common-law evidentiary rules permit expert opinion
testimony, even if based on facts and data not in evidence, as
this testimony violates neither the right of confrontation nor
the prohibition against hearsay if the facts and data "are
independently admissible and are a permissible basis for an
expert to consider in formulating an opinion," provided, first,
that the expert refrain on direct examination from presenting
the specific information on which he or she relied and, second,
16
We assume without deciding that the admission of the challenged
evidence was error. Because the defendant did not object, we
review only to determine whether the error, if any, created a
substantial risk of a miscarriage of justice.11
Amos presented a defense grounded on the theory that the
victim's bones were not healthy, which was undetectable to him
or Dragotta, and therefore, his innocent actions would not have
caused injury to a healthy child. In support of this theory,
Amos presented an expert who gave an opinion that the victim
suffered from rickets or, alternatively, a copper deficiency,
that caused the bones to weaken and break. A second expert
opined that the victim's increased platelet count generated from
the healing fractures could have caused the subdural hematoma.
A high platelet count will make it more likely blood will clot,
and in this case, that clot may have expanded in the small
collection of veins in the skull causing a small tear and bleed.
that the expert witness may be meaningfully cross-examined about
the reliability of the underlying data. See Greineder, supra at
583, 595; Jones, supra, citing Department of Youth Servs.,
supra.
11
Contrary to the defendant's contention, the challenged
evidence does not constitute testimonial evidence subject to the
confrontation clause, because Wilson was not parroting the
opinions of others, but was providing the foundational basis for
her opinion that was independently derived. Regardless of this
distinction, the same standard of review generally applies to
unobjected to error whether or not it is constitutional in
nature. See Commonwealth v. Vasquez, 456 Mass. 350, 358-360
(2010).
17
None of the challenged testimony undercut the defense
theory. In particular, one expert agreed with Wilson that the
subdural hematoma was acute, eliminating any risk of prejudice
from Wilson having conveyed the same impression after consulting
with the neuroradiologist. Moreover, the defense was able to
elicit testimony from Wilson that bolstered its case, namely,
that the victim did not exhibit signs typically associated with
a head injury from an acceleration or deceleration event, and
that Wilson failed to run a full set of tests to determine the
health of the victim's bones. In these circumstances, the
admission of the challenged evidence did not create a
substantial risk of a miscarriage of justice.
Finally, this was a bench trial. "[I]t is presumed that
the judge as trier of fact applies correct legal principals."
Commonwealth v. Milo M., 433 Mass. 149, 152 (2001), quoting from
Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992).
"[T]he judge will understand the limited reason for the
disclosure of the underlying inadmissible information and will
not rely on that information for any improper purpose."
Williams v. Illinois, 132 S. Ct. 2221, 2235 (2012). "In bench
trials, judges routinely hear inadmissible evidence that they
are presumed to ignore when making decisions." Harris v.
Rivera, 454 U.S. 339, 346 (1981).
18
We conclude the judge here was not improperly swayed by
having some of this information introduced on direct rather than
through cross-examination.
Judgments affirmed.