Commonwealth v. Conley

103 Mass.App.Ct. 496

222 N.E.3d 474

COMMONWEALTH

v.Christopher CONLEY.

No. 22-P-705

Appeals Court of Massachusetts, Hampshire.

Argued July 6, 2023

Decided October 25, 2023

MarySita Miles, Boston, for the defendant.

Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

Present: Sacks, Shin, & Grant, JJ.

SACKS, J.

In 2015, the defendant confessed to having tried to kill his seven year old daughter, who had complex medical problems, by putting "Liquid Plumr" drain cleaner into a tube surgically connected to her large intestine. The defendant was indicted in 2015 for attempted murder ( G. L. c. 265, § 16 ), assault and battery by means of a dangerous weapon on a child ( G. L. c. 265, § 15A [c ] [iv]), and assault and battery on a child causing substantial bodily injury ( G. L. c. 265, § 13J ). Despite recanting his confession at his 2020 Superior Court jury trial, he was convicted on all charges.

The defendant now appeals, arguing principally that the trial judge abused his discretion in (1) excluding the testimony of the defendant's expert on false confessions; (2) admitting evidence that, in the defendant's 2015 confession, he also acknowledged intentionally causing his daughter's blood infections in 2009 by dipping part of her central line in stool; and (3) excluding evidence that, shortly before the 2015 confession, the defendant told his attorney in a related care and protection case brought by the Department of Children and Families (DCF) that he "didn't do it" but was going to confess because "this is what we do for our family." The defendant also appeals from the judge's order denying his motion for a new trial based on ineffective assistance of counsel. We affirm.

Background. The jury heard evidence that the defendant's daughter, M.C.,¹ had complex medical conditions that, among other things, interfered with her feeding normally. As of 2009, M.C. had a total parenteral nutrition (TPN) central line inserted through her chest. In March of 2009, when she was seventeen months old, she was admitted to the intensive care unit at Tufts Medical Center and treated by Dr. H. Cody Meissner for unusual blood infections related to the TPN line.

Dr. Meissner believed that the infections were caused by several types of bacteria found in M.C.'s bloodstream that were ordinarily found in the gastrointestinal tract -- a separate, contained system -- and in stool. His "strong suspicion was that the tip of [M.C.'s] catheter was being placed in stool"; he could not think of any other medical explanation. He was "very worried that something was going on with this family," and, indeed, the "infections stopped when [M.C.] was separated from the family." Based on suspicions that someone was tampering with M.C.'s TPN line, DCF became involved and filed its first petition for the care and protection of M.C. She was removed from the custody of the defendant and his wife² (M.C.'s mother) for eighteen months but was ultimately returned to them.

By late 2014, when M.C. was seven years old, Dr. Doruk Ozgediz, a pediatric surgeon at Yale New Haven Hospital (YNHH), had implanted a cecostomy tube (C-tube) directly into her digestive tract. The C-tube provided access to M.C.'s cecum (the upper part of her large intestine) so that it could be irrigated regularly with saline solution to relieve her severe constipation.

On the morning of April 15, 2015, the defendant stayed home with M.C. while the defendant's wife went to a school meeting from 8 A.M. to 9 A.M. School records later confirmed her attendance at the meeting, and employment records later confirmed that the defendant arrived at work at 9:30 A.M. that day, which was later than usual, and then left again at noon.

That afternoon, the defendant and his wife brought M.C. to YNHH with a high fever. M.C. was readmitted and seen by Dr. Ozgediz for a fever with rigors (shaking of the body) and abdominal distension causing mild discomfort; her vital signs were relatively normal. Her condition remained similar until April 17, when she became critically ill, with signs of perforation of her intestines. Dr. Ozgediz performed surgery on M.C. and discovered that segments of her intestines "had essentially liquified and melted and had holes in them and were leaking fluid." He found that the portions of M.C.'s intestines immediately adjacent to the C-tube, including the cecum itself, were "essentially ... dead"; two-thirds of her intestinal tract had to be removed. Her life was in danger. Dr. Ozgediz found no sign of any blood supply problem, infection, or tissue adhesion that could have caused the intestines to die, nor did the pathology results from the tissue and fluid show any clear cause.

M.C. initially recovered well from her surgery, but a week and a half later, fluid began to leak into her abdominal cavity. Further tests revealed that the fluid was urine, coming from a substantial hole in her bladder -- a condition that Dr. Ozgediz had never seen before. M.C.'s bladder necrosis was unusual, extending to a third or more of her bladder, with a clear line between the necrotic tissue and the healthy tissue. This, and the lack of any medical explanation for the damage to the intestines or bladder, led Dr. Ozgediz to conclude that he was "a hundred percent certain" that the cause was a "chemical injury." He further concluded that a caustic substance had been introduced through the C-tube into the intestines. It had burned its way out of the intestines into the abdominal cavity, and from there into the bladder, over the course of a few days.

Shortly thereafter, on May 6, 2015, Dr. Ozgediz and others from the YNHH care team met with DCF, police, and a prosecutor to discuss their suspicions that the defendant and his wife had deliberately caused M.C.'s injuries. DCF then filed a second care and protection petition and informed the defendant and his wife that it was taking custody of M.C. That same day, a search warrant was executed on their home seeking items including a caustic substance such as drain cleaner; police found prescription opioids, saline solution, and sixty cubic centimeter (60 cc) plungers, but no drain cleaner.

Two days later, on May 8, 2015, the defendant met with the attorney appointed to represent him in the care and protection case. Although, as explained infra, the jury heard no evidence of it, the defendant told the attorney, "I am going to give the [d]istrict [a]ttorney a confession. I didn't do it. But this is what we do for our family."³

On May 20, 2015, the defendant, at his own request, met with a State police trooper working with the district attorney's office. In a recorded interview played at trial, the defendant told the trooper that on the morning of April 15, while his wife was at the school meeting, he used a 60 cc plunger to inject M.C.'s C-tube with Liquid Plumr, saline solution, and extra pain medicine. His goal was "to kill her" in order to "put her out of her misery." Pressed on whether his wife was also involved, he insisted that she was not. The defendant further stated that when M.C. was hospitalized at Tufts Medical Center in 2009, he had tried to "end it for her" in the course of a diaper change by dipping part of her TPN line in her stool and then reconnecting it.

At his 2020 trial, however, the defendant testified that this confession was false and that he had confessed only so "that [DCF] would focus on [him] and the DCF would back off of [his] wife and that [his] daughter could go back to her mom. And that way, [M.C.] would grow up with ... one parent rather than none." The defendant also introduced expert evidence that 60 cc of Liquid Plumr could have produced a reaction for only fifteen minutes, a much shorter time than what Dr. Ozgediz posited. Further, two pathologists testified that M.C.'s injuries were caused not by a caustic agent but by loss of blood circulation to portions of her intestines and bladder.

Discussion. 1. Expert testimony on false confessions. The defendant first argues that the judge abused his discretion in allowing the Commonwealth's motion to exclude the testimony of Alan Hirsch, an attorney and professor at Williams College, who would have testified about the existence of false confessions and the factors that would lead someone to make a false confession. The defendant asserts that the judge too strictly applied the Daubert- Lanigan ⁴ factors to the social science behind Hirsch's testimony.

The Daubert- Lanigan standard requires that expert testimony "rest[ ] on a reliable foundation" and be "relevant to the task at hand" (quotation omitted). Commonwealth v. Hinds, 487 Mass. 212, 217–218, 166 N.E.3d 441 (2021). The factors bearing on reliability are "whether the scientific theory or process (1) has been generally accepted in the relevant scientific community; (2) has been, or can be, subjected to testing; (3) has been subjected to peer review and publication; (4) has an unacceptably high known or potential rate of error; and (5) is governed by recognized standards." Commonwealth v. Powell, 450 Mass. 229, 238, 877 N.E.2d 589 (2007). See Hinds, supra at 221, 166 N.E.3d 441. But "[n]ot all of the factors ... will be applicable in every case" (quotation and citation omitted), and there are "methodological distinctions that divide ... hard sciences" from "soft" sciences, i.e., social sciences. Hinds, supra at 222, 166 N.E.3d 441. "[A]pplication of the Daubert- Lanigan standard to soft sciences requires flexibility with special attention being paid to the criteria of reliability that different disciplines develop." Id., citing Canavan's Case, 432 Mass. 304, 314 n.5, 733 N.E.2d 1042 (2000).

"Whether the methodology applied by the expert satisfies gatekeeper reliability is a preliminary question of fact," and we review the judge's determination for abuse of discretion. Hinds, supra at 218, 166 N.E.3d 441. "[O]ur review under this standard is deferential and limited, [but] it is not perfunctory. A judge's findings must apply the...