Commonwealth v. Dragotta , 476 Mass. 680 ( 2017 )

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SJC-12186
COMMONWEALTH vs. HEATHER DRAGOTTA.
Essex. December 6, 2016. - March 21, 2017.
Present (Sitting at Lawrence): Gants, C.J., Botsford, Lenk,
Hines, Gaziano, Lowy, & Budd, JJ.1
Assault and Battery. Wanton or Reckless Conduct. Child Abuse.
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.
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
1
Justice Botsford participated in the deliberation on this
case prior to her retirement.
2
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
2
Dragotta was acquitted on two further indictments charging
the same offense.
3
Steven Amos was convicted on three indictments charging
assault and battery on a child, causing bodily injury, for
inflicting the hematoma and, in separate incidents, fractures to
the victim's ribs and arm. His convictions were affirmed by the
Appeals Court, and we denied his application for further
appellate review. Commonwealth v. Dragotta, 89 Mass. App. Ct.
119, S.C., 475 Mass. 1103 (2016). Amos's convictions are not
before us.
3
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
4
Indeed, both the trial prosecutor and an investigator from
the Department of Children and Families (department) referred to
Dragotta and Amos as the victim's "parents."
4
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 baby's discomfort and the baby might pass gas or
stool as a result. At this visit, the pediatrician again had no
concerns about the victim's health or Dragotta's conduct.
5
After the appointment, Dragotta showed the bicycle
technique to Amos, and each of them used this technique in an
effort to relieve the victim's discomfort. At some point, Amos
concluded that the bicycle technique did not work, but that the
victim's symptoms could be alleviated by pushing her legs toward
her stomach and pushing them down into her stomach to relieve
gas or stool. Dragotta saw Amos using this technique after the
checkup, and she knew that the victim occasionally cried when he
did so.
On May 18, 2010, Dragotta and Amos moved to Amos's
apartment in North Andover, about an hour's drive from the Weare
house. While they were living there, the victim was with
Dragotta about ninety per cent of the time. Amos cared for the
baby by himself at times when Dragotta was showering,
exercising, or doing housework, as well as in the mornings
before leaving for work so Dragotta could sleep. Often, Amos
would take the victim into another room to change her diaper and
would consistently use his gas-relieving technique whenever
doing so.
Shortly after they moved to Massachusetts, Dragotta saw
Amos use his technique in a manner that caused the victim to
make a noise that she did not like. On that occasion, Dragotta
thought Amos might be pushing too hard and that it might be too
much for her. Dragotta immediately told Amos to stop using that
6
technique, and she believed he complied. However, Amos
continued using the technique until sometime the following week.
As discussed more fully below, Amos's use of this technique
caused the victim to sustain multiple rib fractures.
One day, during the week of May 24, Dragotta left the
victim in Amos's care while she took a shower. As Amos would
later tell investigators, he "had put some music on, and . . .
he was acting like [the victim] was a guitar, and . . . he was
dancing and spinning around the living room and dipping her up
and down, at one point dipping her forward, [and] her head came
crashing down on his collarbone." The victim cried for "a
couple of minutes" after hitting her head. The following day,
Dragotta noticed a bruise near the victim's ear and some redness
in her left eye. Amos told her what had happened, and Dragotta
told him to be more careful with the baby. She then telephoned
the pediatrician's office and spoke with a nurse, who told her
to watch the redness in the victim's eye and to call again if it
became any worse. The Commonwealth contended, and the judge
apparently found, that this "guitar" incident caused the victim
to sustain a subdural hematoma. Dragotta's conviction arose
from this incident.
However, the victim's injuries were not discovered until
June 3 and 4, 2010. Dragotta and the victim spent the afternoon
of June 3 visiting friends and family in New Hampshire. For a
7
time, Dragotta left the victim in the care of one of her sisters
at the Weare house while she gathered some belongings. When
they returned to the North Andover apartment that evening, Amos
held the victim on the living room sofa while Dragotta was in
the kitchen. At one point, Amos moved the victim's arm, and she
"let out [an] awful cry," causing Dragotta to think something
was wrong with her arm. Dragotta and Amos took the victim to
the emergency room at Lawrence General Hospital, arriving at
7:45 P.M. that evening.
At that hospital, the victim's arm was X-rayed, revealing a
fracture of the right radius. She then underwent a full
skeletal survey, that is, X-rays of every part of her body.
That skeletal survey revealed no other fractures. A physical
examination of the victim likewise revealed no other injuries.
The victim was transferred to Boston Children's Hospital
for further investigation as to the cause of the arm fracture.
Dr. Celeste Wilson, the medical director of the hospital's child
protection program, examined the victim during the morning of
June 4. She observed a red spot in the victim's left eye, but
did not consider it to be a cause for concern. Dr. Wilson also
saw no marks on the victim's skin. Other than the right arm
fracture, she did not see anything out of the ordinary in her
examination of the victim. She recommended that a second
8
skeletal survey be performed, along with scans of the victim's
head.
Dr. Paul Kleinman, a radiologist, reviewed the new skeletal
survey and found several fractures to the posterior, anterior,
and lateral portions of the victim's ribs.5 He opined that a
likely mechanism for all of these fractures was a compression of
the rib cage. Based on the signs of healing visible in the
skeletal survey, Dr. Kleinman opined that the lateral fractures
were at least seven days old and that the posterior fractures
were between ten days and six weeks old. He could not form an
opinion as to the age of the anterior fractures.
In addition, Dr. Kleinman found evidence of injuries to the
victim's legs. He opined that the injuries occurred from
"twisting and pulling forces." Both he and Dr. Wilson testified
that the force required to cause such injuries was more than
would be expected from routine handling by a caretaker. Dr.
Wilson also stated that the leg injuries could be caused by the
"bicycle" maneuver if it was performed improperly.
As to the fracture to the victim's right radius, Dr.
Kleinman testified that it showed no sign of healing and was
5
The lateral fractures formed the basis for some of the
indictments against Dragotta and Amos. The anterior and
posterior rib fractures were not mentioned in any of the
indictments.
9
therefore a recent injury. He could not offer an opinion as to
its likely cause.
Dr. Wilson examined the scans of the victim's head and
concluded that there was a small subdural hematoma between the
hemispheres of the victim's brain. She testified that a
subdural hematoma could have numerous possible causes, but that
the most likely cause was an acceleration-deceleration motion,
which could result from shaking or from a sudden impact of the
head against a surface.6 Both Dr. Wilson and Dr. Kleinman
testified to their opinions that the victim's injuries were the
result of inflicted trauma. While Dr. Wilson expressed doubt
that the hematoma could have been caused by the victim's head
striking Amos's collarbone during the "guitar" incident, the
record nonetheless is sufficient to support a finding that this
was the cause.
The victim's injuries resulted in a report to the
Department of Children and Families (department) pursuant to
G. L. c. 119, § 51A. Amy Silverio, a department investigator,
met separately with Dragotta and Amos during the afternoon of
June 4 at the department's Lawrence office. North Andover
police Detective Daniel Cronin also participated. Dragotta, who
was upset and tearful at times, told Silverio about the victim's
6
There was, however, no evidence of any fractures to the
victim's skull or injury to her neck, and the hematoma was not
large enough to put pressure on her brain.
10
birth, her health up to that point, and about the events of June
3. Dragotta also described the bicycle technique that the
pediatrician had taught her for relieving gas. This maneuver
did not appear unusual to Silverio. When questioned as to how
the victim might have sustained her injuries, Dragotta became
tearful and said that she believed Amos's pushing technique,
which she described for the investigators, could have broken the
victim's ribs. She also told them that the victim would cry
when Amos pushed, and that at one point, after the victim had
made a sound Dragotta did not like, she told him not to use that
technique anymore. As to the injuries to the victim's arm and
head, Dragotta had no explanation, other than a suspicion that
something might have happened while her sister was watching the
baby. Silverio informed Dragotta that, due to the inflicted
injuries, a care and protection petition would be filed on
behalf of the victim.
After Dragotta's interview was finished, she left the room
visibly upset, and Amos walked in. He immediately asked whether
Dragotta would be allowed to keep the victim if he told them
that he was the one who hurt her. Cronin told him not to lie to
protect anyone, but to say only what had happened. Amos stated
that he was positive that he had broken the victim's ribs using
his gas-relieving technique. He described his technique and
told Silverio and Cronin that he used it to relieve the victim's
11
discomfort and to allow Dragotta to rest, as she was "stressed
paper thin." He also stated that he felt he was pushing too
hard and hurting the victim. About a week to ten days before
the interview, Amos had become concerned that he was damaging
the victim's internal organs, and he stopped using his
technique. It appeared to Silverio from the timelines provided
by Dragotta and Amos that that Amos had continued using his
technique after Dragotta had told him to stop.
When he was asked what might have caused the bleeding in
the victim 's brain, he described the "guitar" incident. He
also demonstrated the "guitar" dancing for Silverio and Cronin.
This did not appear to them to be an appropriate way to handle
the victim, a five-week old infant who could not yet hold her
head up. As to the victim's broken arm, Amos speculated that
this might have happened while Dragotta was taking the victim
out of her car seat, or earlier while the victim was with the
sister, although he did not believe either of them would hurt
the victim intentionally. His only other suggestion was that he
might have grabbed her arm too tightly when she started to slide
off his stomach while they were on the sofa.
The following Monday, Silverio and Cronin went to the North
Andover apartment and spoke further with Dragotta about the
victim's injuries. The apartment appeared to Silverio to be an
appropriate environment for a small child. In the course of her
12
investigation, Silverio spoke with every person who had had
contact with the victim in the first six weeks of her life and
found no one who had any concerns about the way either Dragotta
or Amos treated her. By the time of trial, according to the
victim's father's testimony, the victim was a healthy, active
three-year old child.
Discussion. At issue is whether the Commonwealth proved
that Dragotta acted wantonly or recklessly when she left the
victim in Amos's sole care while she took a shower on the
occasion of the "guitar" incident. "Proof of recklessness
requires 'more than a mistake of judgment or even gross
negligence,' Commonwealth v. Michaud, 389 Mass. 491, 499 (1983),
and has been defined as 'intentional conduct . . . involv[ing] a
high degree of likelihood that substantial harm will result to
another.' Commonwealth v. Welansky, 316 Mass. 383, 399 (1944)."
Commonwealth v. Pugh, 462 Mass. 482, 496 (2012). "To constitute
wanton or reckless conduct, 'the risk . . . must be known or
reasonably apparent, and the harm must be a probable consequence
of the defendant's election to run that risk or of [her] failure
reasonably to recognize it.'" Commonwealth v. Levesque, 436
Mass. 443, 452 (2002), quoting Sandler v. Commonwealth, 419
Mass. 334, 336 (1995). Dragotta's conviction can stand only if
she realized, or if an ordinary person in her circumstances
reasonably would have realized, the gravity of the danger to the
13
victim. See Pugh, 462 Mass. at 496-497. Put another way, the
issue is whether Dragotta either knew or reasonably should have
known that Amos was so manifestly unfit to care for an infant
that the victim was in grave danger if she were left in his sole
care even briefly.
Viewing the evidence in a light most favorable to the
Commonwealth, at the time of the guitar incident, the week of
May 24, 2010, Dragotta knew that Amos had not been using the
gentle "bicycle" technique to relieve the victim's gas symptoms,
but the more forceful pushing technique. The trial judge, as
fact finder, rationally could have found that she also saw him,
on one occasion, use this technique forcefully enough to cause
pain and distress. On that occasion, Dragotta told Amos to stop
using that technique, and she believed he complied. There is no
evidence, however, that Dragotta or anyone else suspected that
Amos's technique caused injury until June 4, when the rib
fractures were discovered. In particular, there is no evidence
of bruising connected with the rib fractures,7 nor is there
7
Dr. Celeste Wilson testified that, during her examination
of the victim, she was informed that the victim had had a bruise
on her rib about one and one-half weeks previously. The record
does not reveal the size and shape of the bruise or its precise
location. It also appears that Dr. Wilson attached no
significance to that bruise, even after learning of the victim's
rib fractures, other than to say that bruising is not common in
a five-week old infant. There is thus no basis on this record
to find that the bruise was related to the rib fractures or that
14
evidence that the victim was behaving as though she was in acute
pain, so as to cause a reasonable person to be concerned that
she had an undiscovered injury. Cf. Commonwealth v. Garcia, 47
Mass. App. Ct. 419, 422-423 (1999) (upholding conviction under
§ 13J where infant had bruises and mother had noticed pain, but
her explanations were implausible). Although Dr. Wilson
testified that she would expect an infant with rib fractures to
cry, she consistently qualified that testimony by stating that
babies cry for many reasons and that it is difficult for a
parent to know why a baby is crying at any given time. There is
no evidence that the victim cried in any way that was out of the
ordinary for an infant at any time before the "guitar" incident,
apart from the sound the victim made the last time Dragotta saw
Amos performing his modified bicycle maneuver. As for that, the
evidence was simply that the victim made a noise that Dragotta
did not like, not that she was crying inconsolably or that she
continued to make that noise even after Amos stopped pushing.
Indeed, the doctors at Lawrence General Hospital did not detect
the rib fractures when they examined the victim and performed
the first skeletal survey, nor did Dr. Wilson observe anything
out of the ordinary, apart from the broken arm, in her
examination of the victim at Boston Children's Hospital. It was
it should have caused Dragotta to suspect that the victim had a
serious injury inflicted by Amos.
15
not until the second skeletal survey was performed that the rib
fractures were discovered. Where the victim presented no
outward sign of injury that was detectable to medical
professionals, we do not see how Dragotta could have suspected
injury.
The Commonwealth argues that Dragotta's later statement to
the investigators that Amos's technique could have caused the
rib fractures proves that she was aware of this possibility
before the fractures were discovered. We disagree. To draw
that conclusion, one would have to find that Dragotta suspected
that the victim's ribs might have been injured and did not seek
medical attention for that injury, although she had sought
medical advice for the benign cracking sound in the victim's
back, had kept the victim's routine pediatric appointments, and
later sought medical attention for the arm injury.8 In our view,
the only rational inference from Dragotta's statement at the
interview is that, upon learning that the victim's ribs were
fractured and being asked what might have caused this, she made
the connection to Amos's technique. On all the evidence, at the
time she left the victim with Amos, there was no reason for
Dragotta to suspect that his technique had caused not only pain,
but also substantial injuries.
8
In this regard, we note that the judge acquitted Dragotta
of recklessly permitting Amos to inflict the rib injuries.
16
Moreover, although Amos was certainly an inexperienced and
flawed caretaker, it is undisputed that he did not intentionally
hurt the victim, and Dragotta had no reason to believe that he
would. There was no risk that he would seize the opportunity to
harm the victim if left alone with her for even a short time.
To be sure, we do not hold that a defendant cannot be convicted
of recklessly permitting assault and battery to a child merely
because the principal assailant acted recklessly rather than
intentionally or merely because the child was in the assailant's
care for only a short time. However, Amos's intentions toward
the victim and the length of time he would be alone with her are
relevant to the gravity of the risk that Dragotta placed her in
by leaving her in his sole care.
Finally, we find it difficult to imagine what more a
reasonable person in Dragotta's position should have done. See
Pugh, 462 Mass. at 497, citing Welansky, 316 Mass. at 398-399
("the inquiry as to reasonable conduct is central to whether the
defendant acted recklessly from an objective perspective").
When she saw that Amos's technique caused pain and distress to
the victim, she put a stop to it, and she believed he stopped
using his technique. Although there might have been other
actions she could have taken -- ending the relationship and
moving out, or arranging for another adult to be present with
Amos and the victim while she showered -- we cannot say that any
17
reasonable person would have been obligated to take these steps,
given the facts known to Dragotta at that time.
In sum, the evidence at trial showed at most that
Dragotta's decision briefly to leave the victim alone with Amos
was an error in judgment. The evidence was not sufficient as a
matter of law to find that her conduct involved a high degree of
likelihood that substantial harm would result. Therefore, her
conviction of wantonly or recklessly permitting an assault and
battery on the victim cannot be sustained.
Conclusion. The judgment is reversed, the finding is set
aside, and judgment shall enter for the defendant.
So ordered.