Commonwealth v. Desir

94 Mass.App.Ct. 1120

123 N.E.3d 800 (Table)

COMMONWEALTH

v.Isaac DESIR.

18-P-447

Appeals Court of Massachusetts.

Entered: February 5, 2019

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a trial by jury, the defendant, Isaac Desir, appeals from his convictions of assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A (b ), and reckless endangerment of a child in violation of G. L. c. 265, § 13L. The jury were warranted in finding that the victim, who is the defendant's biological daughter, lived with the defendant from the age of five to sixteen. During these years she was subjected to physical, mental, and emotional abuse by the defendant, including being struck with a belt buckle. The victim was admitted to the hospital for hypothermia on three occasions, two times in 2015 and once in 2012. This was the result of being forced by the defendant to shovel snow from the home's driveway, sidewalk, and stairs for hours at a time while wearing only a T-shirt and pants. The victim did not disclose any of this to hospital personnel because the defendant was always present and she was afraid. The defendant does not dispute that the evidence was sufficient to warrant the jury's verdicts.

The defendant argues for the first time on appeal that certain testimony by Dr. Peter Sell, a board certified pediatrician, who was asked by the hospital to consult on the victim's case, was improperly admitted. Dr. Sell testified that Shapiro Syndrome, a working diagnosis developed by the neurologists treating the victim, is a rare condition in which a patient has periodic hypothermia and "doesn't seem to have a rhyme or reason why it comes and goes." Dr. Sell also testified that Shapiro Syndrome was a "diagnosis of exclusion" assigned to people who have symptoms of hypothermia that cannot be explained by other medical reasons. Finally, when asked about the likely cause of the victim's hypothermia, Dr. Sell opined that based on the victim's disclosure about being forced to remain outside the home shoveling snow without proper clothing, her condition was more consistent with environmentally induced hypothermia than with Shapiro Syndrome. A trial judge has broad discretion to determine whether a witness is qualified to offer an expert opinion. See Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990). In the case of a board certified pediatrician, the expert witness is not required to be qualified in a specific subspecialty to offer an opinion concerning the most likely cause of a child's symptoms. See id. The defendant's reliance on Commonwealth v. Guinan, 86 Mass. App. Ct. 445 (2014), is misplaced. There, the accident...