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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Roderiques, 462 Mass. 415 (2012)

CONTRIBUTING EDITOR: THOMAS FLANAGAN I. Procedural History

At trial, the jury acquitted the defendant of the offenses charged in two indictments but found the defendant guilty of a lesser included offense. A divided Appeals Court affirmed the conviction.1 II. Facts On December 23, 2003, the defendant took her seven week-old son to the pediatrician because the child displayed flu-like symptoms. That night, the defendant put her son to sleep on a recliner chair and the defendant slept with her boyfriend, Shawn Cambra, on a pull-out couch in the living room. When the pull-out couch was fully opened, it touched the foot of the recliner on which the child slept and divided the room in half.2 Cambra was able to access the front door of the apartment from his side of the bed; the defendant was able to access the rest of the apartment from her side of the bed.3 Cambra told police that since the pull-out mattress separated him from the rest of the apartment, he would need to step on the recliner to access the bathroom from his side.4 The defendant stated that she got up to feed and change the child during the night, the last of which occurred at approximately 6:00 a.m. At 10:00 a.m. on December 24, 2003, Cambra noticed a red bruise on the childs upper right arm. The child was taken to the hospital where doctors discovered that the child had a fractured right arm, multiple fractures to both of his legs, rib fractures, a compression fracture of the spine, and a fractured clavicle.5 Two indictments were brought against the defendant. At the request of defense counsel, the judge
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Commonwealth v. Roderiques, 462 Mass. 415, 416 (2012). Id. at 417. Id. at 418. Id. at 419. Id.

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told the jury that it could consider whether the defendant recklessly endangered her child as a lesser offense included in the charge under G.L. c. 265, 13J (b).6 III. Issues Presented 1. Is recklessly endangering a child a lesser included offense of wantonly and recklessly permitting another to commit an assault and battery on a child?7 2. Did the trial court judge err when he instructed the jury that it could consider the lesser included offense of recklessly endangering a child?8 3. Did the Commonwealths expert witness impermissibly testify about an ultimate issue of the case when she stated that, in her opinion, the childs injuries were not accidental?9 IV. Holdings and Reasoning 1. Recklessly endangering a child is a lesser included offense of wantonly and recklessly permitting another to commit an assault and battery on a child.10 A crime is a lesser included offense of another crime if each of its elements is also an element of the other crime.11 A charge of wantonly and recklessly permitting another to commit an assault and battery on a child, in violation of G.L. c. 265, 13J (b), requires that the child be under fourteen years of age. A charge of recklessly endangering a child, in violation of G.L. c. 265, 13L, requires that the child be under eighteen years of age. The Court found that, logically, a child under the age of fourteen is under the age of eighteen so if this element was satisfied for 13J then it was also satisfied for 13L. The next element of 13J requires substantial bodily injury to the child, while the next element of 13L requires substantial risk of bodily injury. The Court found that satisfaction of this element in 13J required that the second element of 13L was also satisfied because [t]he occurrence of an injury presupposes that a risk of injury has been created.12 Finally, the Court found that the last element of 13J criminalizes child abuse resulting from a failure to act, while the last element of 13L criminalizes the wanton or reckless failure to reduce the risk of bodily harm to the child

Id. at 416. Roderiques, 462 Mass. at 420. 8 Id. at 424. 9 Id. at 428. 10 Id. at 426. 11 Id. at 421, citing Commonwealth v. Ogden O., 448 Mass. 798, 808 (2007), quoting Commonwealth v. Perry, 391 Mass. 808, 813 (1984).
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Id. at 423.

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Commonwealth v. Roderiques

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when there is a duty to act.13 The Court found that this element in 13J encompassed this element in 13L, and that 13L was a lesser included offense of 13J.14 2. The trial judge erred when he instructed the jury that it could consider the lesser included offense of recklessly endangering a child.15 The Court stated that instructing a jury on a lesser included offense is appropriate when the jury could have found the defendant[] guilty of [the lesser included offense] and not guilty of the greater offense.16 The defendant and the Commonwealth both agreed with the Court that there was no view of the evidence on which the elements unique to 13J (b) . . . were not present, but the elements common to 13J (b) and 13L were present.17 The Court then reviewed whether the defense attorneys request for the lesser included offense instruction constituted ineffective assistance of counsel and whether the trial judges instruction caused a substantial risk of a miscarriage of justice.18 The Court stated that the attorneys request for the instruction was a reasonable, tactical decision because the punishment for the lesser included offense is less severe and it gave the jury the option of finding the defendant guilty for something other than the greater offense.19 The trial judge did not create a substantial miscarriage of justice by giving the instruction because, viewed in a light favorable to the Commonwealth, the evidence supported a guilty verdict under 13J.20 Although the instruction on the lesser included offense should not have been given, it did not prejudice the defendant severely enough so as to require reversal.21 3. The Commonwealths expert witness did not impermissibly testify about the cause of the childs injuries.22 The role of the expert witness is not to testify as to the defendants guilt or innocence, but to assist the trier of fact in reaching a decision.23 Although an experts opinion may touch upon some of the ultimate issues of the case, this does not mean that the experts

Roderiques, 462 Mass. at 423-424. Id. at 424. 15 Id. at 425. 16 Id. at 424, quoting Commonwealth v. Porro, 458 Mass. 526, 537 (2010). 17 Id. at 425. 18 Id. 19 Roderiques, 462 Mass. at 426, quoting Commonwealth v. Bynoe, 49 Mass. App. Ct. 687, 695 (2000).
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Id. at 427. Id. at 428. Id., quoting Commonwealth v. Pytou Heang, 458 Mass. 824, 844 (2011) Id. at 428.

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testimony is impermissible.24 The experts opinion in this case did not provide any evidence or opinion as to who was responsible for the childs injuries, only to how the injuries may have been caused.25

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Id. Id. at 429.

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