Commonwealth v. Barlow-Tucker

223 N.E.3d 1193

COMMONWEALTH

v.Cassandra L. BARLOW-TUCKER.

Commonwealth

v.Matthew J. Tucker.

SJC-13408

SJC-13409

Supreme Judicial Court of Massachusetts, Berkshire.

Argued October 4, 2023.

Decided January 8, 2024.

Homicide. Reckless Endangerment of a Child. Grand Jury. Evidence, Grand jury proceedings. Probable Cause. Practice, Criminal, Grand jury proceedings, Dismissal.

Indictments found and returned in the Superior Court Department on March 23, 2021.

Motions to dismiss were heard by John A. Agostini, J.

The Supreme Judicial Court on its own initiative transferred the cases from the Appeals Court.

Jennifer K. Zalnasky, Special Assistant District Attorney, for the Commonwealth.

Joshua M. Daniels for Matthew J. Tucker.

Nancy A. Dolberg, Committee for Public Counsel Services, for Cassandra L. Barlow-Tucker.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

CYPHER, J.

In March 2021, a grand jury returned indictments charging the defendants, Cassandra L. Barlow-Tucker (Cassandra) and Matthew J. Tucker (Matthew) (collectively, Tuckers), with one count each of involuntary manslaughter by way of wanton or reckless conduct, G. L. c. 265, § 13, and reckless endangerment of a child, G. L. c. 265, § 13L, in connection with their alleged failure to seek medical treatment for Garrett,¹ a foster child who died in their care from complications of group A beta hemolytic streptococcus (strep throat), bronchopneumonia, and a collection of fluid in one of his lungs.² Following a nonevidentiary hearing, a Superior Court judge allowed the defendants’ motions to dismiss the indictments on grounds that (1) the evidence presented to the grand jury was insufficient to justify the return of the indictments, see Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982); and (2) the integrity of the grand jury proceeding was impaired by the Commonwealth’s presentation of improper evidence, see Commonwealth v. O’Dell, 392 Mass. 445, 446-447, 466 N.E.2d 828 (1984). In so concluding, the judge determined that the evidence was insufficient to support a finding of probable cause to believe that the Tuckers were wanton or reckless, or knew or should have known that Garrett was in grave danger from his illness and failed in their duty to seek medical care that could have saved his life; the judge also determined that the grand jury were impaired by the admission of improper evidence. The Commonwealth appealed, and we transferred the cases sua sponte from the Appeals Court.

On appeal, the Commonwealth argues that the motion judge erred in dismissing the indictments because (1) viewed in the light most favorable to the Commonwealth, the evidence provided probable cause to support the indictments for involuntary manslaughter and reckless endangerment of a child; and (2) the integrity of the grand jury was not impaired where the evidence presented was not untruthful or misleading, and where the prosecutor provided limiting instructions before the grand jury deliberated. The Commonwealth also argues that the judge incorrectly applied the McCarthy and O’Dell analyses in his determinations.

Because we conclude that the evidence before the grand jury was sufficient to support the defendants’ prosecution for involuntary manslaughter and reckless endangerment of a child and that the integrity of the grand jury was not impaired, we reverse the order of the judge in the Superior Court.

1. Background. We summarize the evidence presented to the grand jury in the light most favorable to the Commonwealth, see Commonwealth v. Clinton, 491 Mass. 756, 758, 207 N.E.3d 487 (2023), reserving some details for subsequent discussion.³

On the morning of February 18, 2020, Cassandra discovered their ten month old foster child, Garrett, nonresponsive in his crib. She immediately alerted Matthew to call 911. Emergency personnel responded but were unable to revive him.

The investigation into Garrett’s death revealed that he had been sick with a severe respiratory cold in the weeks leading up to his death. Video footage from the Tuckers’ home surveillance cameras recorded his last night alive, February 17.

a. Video footage. The Tuckers described February 17 as the best day Garrett had had in a long time. He had a better appetite, drank more fluids, and was more active than he had been recently.

That night, Adam, the Tuckers’ eldest son, put Garrett to bed.⁴ The motion-activated video camera in the room showed Adam put Garrett in his crib at 6:23 P.M. From the video recording (video), Garrett can be heard coughing prominently, wheezing, and gasping for air. Between 6:30 and 7:17 P.M., Matthew entered the room to put Bobby, the Tuckers’ adopted son, to bed. In order to do so, Matthew walked by Garrett’s crib to Bobby’s bed. Matthew then left the room without checking on Garrett. While Matthew was in the room, Garrett continued to cough, wheeze, and gasp for air. At around 7:30 P.M., the video showed Garrett moving and making noise. It appeared that the last time Garrett moved was 7:34 P.M. The camera next activated at around 12:30 to 12:44 A.M., when Adam got out of bed and left the room. Garrett appeared on the surveillance video in the crib, motionless and not making any noise, in the same position he was in at 7:34 P.M. Adam last activated the camera at 1:44 A.M. At around 8:30 A.M., Cassandra discovered Garrett and contacted emergency officials.

When interviewed by police, Cassandra provided a detailed statement recalling how she had put Garrett to bed that night. However, the surveillance video showed that it was Adam, not Cassandra, who put Garrett into his crib. She also stated that, at around 3 or 3:30 A.M., she observed Garrett moving and coughing on the surveillance video. Officers noted that this statement was inconsistent with the video footage, which showed Garrett in the exact same position from 7:34 P.M. until he was discovered the following morning.

b. Weeks preceding death. According to the Tuckers, around January 25, 2020, the household members became stricken with a cold that their eldest daughter, Darlene, had brought home from school. Garrett’s symptoms included a fever, cough, dry diapers, noisy breathing, lethargy, mucus, and congestion. His fever lasted for two weeks but fluctuated depending on the amount of food he ate. When he was able to drink fluids, Garrett made a "gasping" type sound. To treat Garrett’s illness, the Tucker’s alternated giving him children’s ibuprofen and Tylenol, one as an anti-inflammatory and one as a pain reliever; hydrated him by administering liquids into his mouth with a syringe; gave him nebulizer treatments with albuterol; and attempted to hydrate and feed him when he was able to consume meals.⁵ At one point, the Tuckers called a doctor about their two year old daughter, Jessica, to inquire about treatment for her illness, because she also contracted a cold during this time and had preexisting medical conditions.

Her cold symptoms included a cough and runny nose for a week, lethargy, and a temperature that never exceeded 100.4 degrees. The doctor advised them to remain at home because he did not want to introduce Jessica to the germs in the doctor’s office. The doctor provided assistance over the telephone.

While the other children recovered from the illness, Matthew noted that Garrett was taking longer to recuperate. Cassandra stated that she contacted people at the Department of Children and Families (DCF) in the first week of February to notify them that Garrett was sick and needed to see a doctor. According to her, Helen, a DCF social worker, took Garrett to a doctor’s appointment in February and, after the appointment, was told to continue the nebulizer treatments. However, police were unable to locate any information to corroborate that Cassandra contacted DCF or that Garrett saw a medical professional. Helen stated she did not take Garrett to the doctor in February.

On February 14, Tracy, a speech pathologist, visited the home to perform services with the Tuckers’ youngest daughter. While in the home, Tracy saw that Garrett was ill and struggling with a persistent cough and a respiratory cold. She observed Cassandra give him a nebulizer treatment. Tracy recalled inquiring whether Garrett had seen a doctor. Cassandra commented that if his condition worsened, she intended to call or bring him to a doctor. Between themselves, the Tuckers noted that if Garrett did not improve, they should take him to see a medical professional. Cassandra "half-jokingly" mentioned on Sunday, February 16, that they should take one of the other children to the doctor and have the doctor examine Garrett while at the office. There is no record that Garrett was seen by a medical professional between a December 10, 2019, doctor’s appointment and death.⁶

c. Autopsy and medical testimony. Dr. Irini Scordi-Bello, the forensic pathologist who performed Garrett’s autopsy, determined the cause of death to be complications from strep throat, bronchopneumonia, and a collection of fluid in his right lung. She noted that he had a "massive overwhelming infection in the right lung" and bacteria in his bloodstream indicating sepsis, which meant that the bacteria had circulated to his other organs. The infection caused the right lung to be "shrunken and collapsed," and pus filled the entire right chest cavity. A toxicology report indicated that no drugs or medications were found in his system.⁷

After reviewing Garrett’s medical records, Scordi-Bello suggested that a wheezing diagnosis from December was unrelated to the cause of death. She did not see evidence of asthma or other changes that would suggest his condition at death was related to wheezing, asthma, or other allergies he was diagnosed with in December. Similarly, she did not believe a gastrointestinal rotavirus that he had had in December was related to or caused the pneumonia and fluid collection in his lung. That Garrett was substance exposed at birth also...