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SJC-13408 SJC-13409
COMMONWEALTH vs. CASSANDRA L. BARLOW-TUCKER.
COMMONWEALTH vs. MATTHEW J. TUCKER.
Berkshire. October 4, 2023. - January 8, 2024.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
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. 2
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 (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 (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
1 We refer to children in this opinion by pseudonyms.
2 For ease of identification, we refer to the defendants by their given names. 3
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 4
Commonwealth v. Clinton, 491 Mass. 756, 758 (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.
3 The grand jury heard testimony from five witnesses over the course of three days: Detective Travis Cunningham, the detective who first arrived at the scene after Garrett's body had been discovered; Sergeant Ryan Dickinson, the lead investigator on the case; Dr. Irini Scordi-Bello, the forensic pathologist who conducted the autopsy; Dr. Sandeep Kumar, Garrett's pediatrician; and Tracy (a pseudonym), a speech language pathologist who asked Cassandra whether Garrett had seen a doctor. The grand jury also saw recorded interviews of Cassandra and Matthew that were conducted by the police, as well as surveillance video footage of the children's room where Garrett was discovered. The grand jurors were provided with recorded interviews of four Department of Children and Families (DCF) social workers, interviews of the Tuckers' two eldest children, and various medical and DCF records to assist them in their deliberations. 5
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
At the time, the Tuckers lived with their two biological 4
children -- Darlene, an eleven year old girl, and Adam, a ten year old boy -- as well as their two adopted children: Bobby, a three year old boy, and Jessica, a two year old girl. 6
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
5 On December 10, 2019, Garrett's pediatrician prescribed a nebulizer with albuterol to treat a suspected environmental or pet allergy from Garrett's former foster placement. The DCF social worker who took him to the appointment, Helen (a pseudonym), filled the prescription and returned Garrett to the Tuckers with instructions about the nebulizer. Cassandra began 7
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.
administering the nebulizer as needed and noted that Garrett appeared to be responding well. By early January 2020, Garrett was healthy and doing well. 8
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,
6 For unknown reasons, Garrett missed a December 18 follow- up appointment, and an administrative transfer of his medical provider to a closer office was delayed and may not have occurred. According to Cassandra, with respect to her other foster children, depending on the social worker, either the Tuckers or the social worker would take the foster child to doctor's visits. In this case, according to Cassandra, either the assigned social worker or a social worker on the unit would take Garrett to his appointment. Cassandra stated that she never took Garrett to the doctor. If Garrett required a doctor's visit, the Tuckers would contact DCF to make the arrangements. However, based on their training, the Tuckers were aware that, in an emergency, they could take the child to the emergency room or urgent care and possessed the authority, delegated from DCF, to arrange for medical care on the child's behalf. 9
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 did not
change the determination of the cause of death. Scordi-Bello
noted that at the time of the December 10 appointment, Garrett's
7 Tylenol would show on a toxicology report, although Scordi-Bello was unsure whether ibuprofen or albuterol would. Even if Garrett had been administered albuterol, she did not believe that it would have made an impact, because Garrett's improperly functioning lung was not able to receive air from the airway that the albuterol opened. 10
doctor described equal breath sounds on both sides of his lungs.
That finding was inconsistent with the autopsy results, which
showed that, in the days before his death, Garrett would not
have had equal breath sounds because no air would have been
circulating due to his shrunken right lung.
Scordi-Bello could not state definitively how the symptoms
would manifest but believed that, in the days leading up to his
death, Garrett would have exhibited varying degrees of fever, a
cough, and difficulty breathing, which could "wax and wane."
Scordi-Bello added that Garrett likely was lethargic
because of the overwhelming infection. She could not comment on
whether he was improving or eating, but she thought that he
would have been ill in the days prior to death. Last, she noted
that the condition was treatable by administering antibiotics
and draining the fluid from the lung and chest cavity.
Dr. Sandeep Kumar, Garrett's pediatrician, testified that
he had not seen Garrett since his December 10, 2019, appointment
when Kumar prescribed albuterol for Garrett's wheezing with
instructions to the DCF worker to use the nebulizer for two more
days. Kumar reviewed the autopsy report and noted that strep
throat was rare in infants Garrett's age but treatable with
penicillin. Kumar stated that bronchopneumonia, also treatable
with antibiotics, commonly developed as a secondary infection
when a child had a cold and would cause the fever to spike over 11
101 degrees after five to seven days of illness. Based on
Garrett's laboratory results, Kumar would expect Garrett to have
had a worsened cough, poor appetite, difficulty breathing, and
lethargy. Kumar opined that a lay person may see a nonstop,
persistent cough. Further, if a child presented to his clinic
with Garrett's X-rays, Kumar immediately would have transferred
the child to the emergency room.
Kumar also reviewed the video of Garrett in his crib the
night before he was discovered dead. Kumar opined, based on his
medical expertise, that the persistent, nonstop coughing was
caused by the fluid in Garrett's chest pushing the breathing
tube to one side, narrowing the airway and forcing Garrett to
cough to breathe, which was also known as "air hunger." Kumar
further opined that Garrett would have been exhibiting symptoms
of "air hunger" for at least five to seven days. If Kumar had
seen a patient with the "air hunger" breathing combined with
Garrett's X-rays, Kumar would have called 911.
None of these symptoms was present when Kumar last saw
Garrett in December.
After a grand juror requested that a portion of the crib
video be played, Kumar stated that the nonstop cough exhibited
in the video was a sign that Garrett's airway was about to be
blocked, and that he was in obvious respiratory distress based
on the heavy breathing and head nodding that would be apparent 12
to a caregiver whether or not the caregiver had child care
experience. If a patient presented with these symptoms, along
with the symptoms described by the Tuckers, including fever over
the course of two weeks, dehydration, and an unproductive cough
that turned to a phlegmy cough, Kumar would have taken the child
to the emergency room.
2. Discussion. "Our review of the propriety of any
indictment is limited to determining whether the grand jury
received sufficient evidence to find probable cause for arrest
. . . and whether the integrity of the grand jury proceedings
was impaired." Commonwealth v. McGahee, 393 Mass. 743, 746-747
(1985). "In considering a judge's decision to dismiss for lack
of sufficient evidence [to support an indictment], we do not
defer to the judge's factual findings or legal conclusions.
. . . Rather, our review is de novo" (quotation and citations
omitted). Clinton, 491 Mass. at 765. Likewise, because the
judge decided the motions following a nonevidentiary hearing, we
review the judge's decision to dismiss for impairment of the
grand jury de novo. See Commonwealth v. Sullivan, 492 Mass. 36,
41-42 (2023).
a. Sufficiency of the evidence. Although, in general, a
"court will not inquire into the competency or sufficiency of
the evidence before the grand jury" (citation omitted),
Commonwealth v. Robinson, 373 Mass. 591, 592 (1977), a "grand 13
jury must hear sufficient evidence to establish the identity of
the accused . . . and probable cause to arrest him [or her]" for
the charged offense, McCarthy, 385 Mass. at 163. "Probable
cause is a 'considerably less exacting' standard than that
required to support a conviction [beyond a reasonable doubt] at
trial." Commonwealth v. Stirlacci, 483 Mass. 775, 780 (2020),
quoting O'Dell, 392 Mass. at 451. It requires only "sufficient
facts to warrant a person of reasonable caution in believing
that an offense has been committed." Commonwealth v. Levesque,
436 Mass. 443, 447 (2002).
i. Involuntary manslaughter. The elements of manslaughter
are derived from common law, as Massachusetts has not defined
the offense by statute. See Levesque, 436 Mass. at 447.
Involuntary manslaughter is "an unlawful homicide,
unintentionally caused . . . by an act which constitutes such a
disregard of probable harmful consequences to another as to
constitute wanton or reckless conduct" (citation omitted).
Commonwealth v. Catalina, 407 Mass. 779, 783 (1990). Wanton or
reckless conduct usually consists of an intentional act but may
be satisfied by an intentional omission where there is a duty to
act. See Commonwealth v. Hardy, 482 Mass. 416, 421 (2019);
Levesque, supra at 448. Wanton or reckless conduct "does not
require that the actor intended the specific result of her
conduct, only that he or she intended to do the wanton or 14
reckless act," Hardy, supra, "which conduct involves a high
degree of likelihood that substantial harm will result to
another," Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).
See Commonwealth v. Dawson, 490 Mass. 521, 533 (2022). Either
the defendant must have realized the risk of harm or a
reasonable person, who knew what the defendant knew, would have
realized such risk. Hardy, supra.
In concluding that the Commonwealth failed to establish
manslaughter, the motion judge stated that the evidence was
insufficient to believe that the Tuckers knew or reasonably
should have known that, by caring for Garrett at home without
seeking urgent medical care, they were putting him at risk of
substantial harm. Our de novo review of the record convinces us
that, viewed in the light most favorable to the Commonwealth,
the Commonwealth presented sufficient evidence that Garrett was
gravely ill in the weeks preceding his death and that the
Tuckers' failure to take him to a medical professional put him
at risk that substantial harm would result. Garrett, a ten
month old infant, exhibited symptoms of a persistent cough,
noisy, raspy breathing, a fluctuating fever that occasionally
exceeded 102 degrees, dehydration, loss of appetite, lethargy,
and congestion that lasted for at least two weeks. Despite
these symptoms, the Tuckers failed to seek medical attention. 15
Instead, the Tuckers treated Garrett by alternating ibuprofen
and Tylenol, hydrating Garrett with a syringe to put drops into
his mouth, administering albuterol with a nebulizer, and
providing extra liquids when Garrett could consume them.
Although Cassandra stated that she contacted DCF to arrange for
a social worker to take Garrett to the doctor, no evidence was
located to corroborate that Garrett was seen by a doctor in
February or that Cassandra contacted DCF. Helen stated that she
never took Garrett to the doctor in February.
The Tuckers were aware that Garrett required medical
attention -- they joked that they should take one of their
children to the doctor and bring Garrett along as an extra child
to be examined. The grand jury also could infer that the
Tuckers had the ability to recognize when to seek medical care
but decided to forgo such care in Garrett's case. When Jessica
became ill with symptoms less severe than Garrett's, the Tuckers
contacted her doctor for treatment advice but did not do the
same for Garrett despite knowing that he had a pediatrician in
Berkshire county. Additionally, Tracy commented to Cassandra
that Garrett should be seen by a doctor. Due to their foster
parent training, the Tuckers were aware that they could seek
emergency medical treatment, as needed.
Last, the surveillance video footage of the children's
bedroom supports probable cause to believe that the defendants 16
were wanton or reckless in their failure to seek medical
attention. In the video, Garrett's pronounced breathing is
notable. Kumar testified that the sound of the persistent
nonstop coughing was "air hunger" as Garrett struggled to
breathe. The footage from the camera showed that Matthew walked
by Garrett's crib, put another child to bed, and walked back out
of the room without checking on him. From this alone, a grand
jury could conclude that a reasonable person in Matthew's
position would have understood the high degree of risk and
responded to Garrett's gasping breath by seeking immediate
medical care. The jury could infer, and Kumar testified, that
Garrett exhibited this symptom for a period of time preceding
the video footage and that the Tuckers were aware of the sound.
The grand jury were permitted to discredit the Tuckers'
statement that Garrett improved that day. Additionally,
Cassandra's statements that she put Garrett to bed and saw him
moving at around 3 A.M. were contradicted by the surveillance
footage showing that Garrett had stopped moving at around 7:34
P.M. after Adam had put him in his crib at around 6:30 P.M. The
grand jury heard sufficient evidence to support probable cause
for the indictment. See Commonwealth v. Riley, 73 Mass. App.
Ct. 721, 727 (2009) ("The weight and credibility of the evidence
is wholly for the grand jury"). 17
This determination is supported by our case law. In
Commonwealth v. Twitchell, 416 Mass. 114, 116 (1993), we
recognized that a parent may be convicted of involuntary
manslaughter as a result of a wanton or reckless failure to seek
medical attention for a child in the parent's care. In so
holding, we relied on Commonwealth v. Gallison, 383 Mass. 659,
665 (1981), where a conviction of manslaughter was upheld after
a parent made no effort to obtain medical help despite knowing
that her child was gravely ill, and the evidence supported the
determination that the parent's omission constituted a failure
to meet her duty to provide for the care and welfare of her
child.
The Tuckers do not argue that they did not owe Garrett a
duty of care. Rather, they argue that the evidence presented to
the grand jury was insufficient to show that the Tuckers or
other parents in their position would have been aware that
caring for a child at home created a high likelihood that grave
danger would result. However, Kumar testified that a lay person
could see that the nonstop persistent cough was a sign of
respiratory distress that was not normal breathing. For the
reasons stated above, the evidence provided probable cause to
believe that the Tuckers knew or reasonably should have known
that Garrett required immediate medical attention. 18
"To constitute wanton or reckless conduct, as distinguished
from mere negligence, grave danger to others must have been
apparent, and the defendant must have chosen to run the risk
rather than alter his [or her] conduct so as to avoid the act or
omission which caused the harm." Welansky, 316 Mass. at 398.
However, "[w]hether certain behavior is properly categorized as
reckless or negligent is ordinarily left for the jury."
Levesque, 436 Mass. at 452. Where, as here, the grand jury
returned indictments against the defendants and there was
sufficient evidence to support those indictments, we decline to
substitute our judgment for the grand jury's. That is not to
say that the evidence will be sufficient to support guilty
verdicts at trial. See Commonwealth v. Flynn, 420 Mass. 810,
815 (1995); Commonwealth v. Michaud, 389 Mass. 491, 498-499
(1983). Rather, we conclude only that, in the unique
circumstances of these cases, when viewed in the light most
favorable to the Commonwealth, the grand jury were presented
with sufficient evidence to support indictments for involuntary
manslaughter.
ii. Reckless endangerment of a child. A product of the
Legislature, reckless endangerment of a child requires the
Commonwealth to prove that the child under the age eighteen
suffered a substantial risk of serious bodily injury and that
the defendant wantonly or recklessly (i) engaged in conduct that 19
created the substantial risk or (ii) "failed to take reasonable
steps to alleviate that risk where a duty to act exists."
Commonwealth v. Coggeshall, 473 Mass. 665, 667-668 (2016).
Unlike involuntary manslaughter, which requires the Commonwealth
to prove that either the defendant or a reasonable person in the
same circumstances would have realized the gravity of the
danger, reckless endangerment of a child requires that the
defendant actually be aware of the risk. Hardy, 482 Mass. at
421-422. Because we conclude that the Commonwealth presented
sufficient evidence for probable cause to believe that the
Tuckers were aware that their conduct created a substantial risk
of harm and, therefore, to support indictments for involuntary
manslaughter, the evidence also was sufficient to support
indictments for reckless endangerment of a child. See id. at
422.
b. Grand jury impairment. In addition to finding
insufficient evidence to support the alleged offenses, the
motion judge dismissed the indictments because he concluded that
the Commonwealth improperly introduced evidence of DCF
overpayments, financial remunerations, and Cassandra's blog
posts with no purpose other than to portray the Tuckers in a
negative light. On appeal, the Commonwealth asserts that the
dismissal constitutes reversible error because the financial
information and blog posts were relevant, were not untruthful or 20
misleading, and did not impair the integrity of the jury, as the
prosecutor provided limiting instructions. The Commonwealth
argues that the motion judge erred by ignoring the established
standard for grand jury impairment as outlined in O'Dell, 392
Mass. at 446-447, and Commonwealth v. Mayfield, 398 Mass. 615,
621 (1986).
Matthew filed a pretrial motion to dismiss the indictments
on grounds that the integrity of the grand jury proceedings was
impaired by the Commonwealth's presentation of "irrelevant" DCF
financial records and blogs posts written by Cassandra.
Cassandra's pretrial motion to dismiss was confined to the
sufficiency argument. On appeal, Matthew raises one argument
that was not raised below, and Cassandra raises multiple
arguments that were not made in the Superior Court. Because
their arguments differ from those made before the motion judge
and each other, we address Matthew's and Cassandra's arguments
separately.
An indictment may be dismissed when "the integrity of the
grand jury proceeding was impaired by an unfair and misleading
presentation to the grand jury." O'Dell, 392 Mass. at 446-447.
"To demonstrate that such impairment occurred, a defendant must
establish that (1) the evidence was presented knowingly or with
reckless disregard for its truth; (2) the evidence was presented
with the purpose of obtaining an indictment; and (3) the 21
improper evidence probably influenced the grand jury's decision
to indict." Commonwealth v. Brown, 490 Mass. 171, 181 (2022),
citing Mayfield, 398 Mass. at 621. "Reckless disregard of the
truth leading to the presentation of false or deceptive evidence
could also warrant dismissal of an indictment" (citation
omitted). Brown, supra at 182, quoting Mayfield, supra.
i. Matthew's arguments. On the last day of the grand jury
presentation, the Commonwealth presented evidence that DCF
overpaid the Tuckers for Garrett's placement, that the Tuckers
reimbursed DCF, and that the Tuckers received payments for
Garrett and other adopted children in their care.
The Commonwealth argued that the evidence was relevant to
establish that the Tuckers possessed a duty of care to Garrett.
Our review of the record establishes that Matthew has not
demonstrated that the integrity of the grand jury was impaired
by the evidence.
Under Mayfield, Matthew was required to demonstrate that
the evidence was presented knowingly or with reckless disregard
for its truth, for the purpose of obtaining an indictment, and
probably influenced the jury. Here, the financial records were
not false, as they accurately portrayed the financial history
between the Tuckers and DCF. Nor were they introduced
recklessly. Cf. Brown, 490 Mass. at 184. As a whole, the 22
financial information was relevant to establish that the Tuckers
possessed a duty of care to Garrett.
However, information regarding the overpayments that the
Tuckers received and information that the Tuckers were required
to reimburse DCF could demonstrate improper prior bad act or
character evidence. Assuming, without deciding, that the
overpayment information was improper, the brief mention of the
overpayment does not rise to the level of "recklessness" to
satisfy the first prong of Mayfield. For example, in Brown, the
first prong was satisfied where the prosecutor introduced a
"voluminous" number of the defendant's and a possible
accomplice's Department of Correction records that demonstrated
prior bad acts, proclivity to violence, and other general bad
character of both defendants. Brown, 490 Mass. at 182-184.
There, we agreed with the motion judge that the prosecutor "was
reckless in introducing such improper, unfairly prejudicial, and
irrelevant evidence to the grand jury in order to obtain an
indictment" without first weighing the fairness of the offering.
Id. at 184. Here, the momentary mention of the overpayments
does not equate to the "voluminous" number of records introduced
in Brown, and thus does not constitute recklessness under the
first prong of Mayfield. Therefore, the integrity of the grand
jury was not impaired by the introduction of the financial
records. 23
Similarly, the Commonwealth's introduction of blog posts
does not satisfy the "heavy burden" that the defendants must
demonstrate to establish impairment of the grand jury
proceeding. See Commonwealth v. Fernandes, 483 Mass. 1, 7
(2019). After the presentation of the financial records, the
Commonwealth presented six blog posts that were read to the
grand jury; further, the Commonwealth provided the entire blog
as an exhibit to use in the grand jury's deliberation. The blog
posts detailed Cassandra's frustrations and experiences as a
foster parent and, in the portion read to the grand jury,
exhibited her experience with the MassHealth system, obtaining
medical care for foster children, and dealing with a
noncommunicative sick child who had serious unknown medical
conditions. Again, under Mayfield, Matthew is unable to
establish that the posts were presented falsely or recklessly,
or that they likely influenced the grand jury's decision. The
posts were relevant to Cassandra's knowledge as a foster parent
and described her experiences with the foster care system and
medical providers. Although an argument could be made that the
posts, written two years before Garrett arrived in the home,
were too remote in time to be relevant, at the grand jury stage
the rules of evidence are less stringent than at trial. See
Commonwealth v. Kater, 432 Mass. 404, 412 (2000). Even
assuming, without deciding, that the introduction of the 24
entirety of the blog was improper, Matthew cannot show that the
evidence had an impact on the grand jury's determination.
As the Commonwealth noted, by this time in the
presentation, the grand jury had reviewed the powerful video
footage of Garrett in his crib, had heard testimony from two
medical experts, and had posed thoughtful questions to the
witnesses about Garrett's illness and ability to breath. As
there was substantial other evidence of probable cause, the
arguably improper evidence probably did not influence the grand
jury's decision to indict. See Commonwealth v. Hall, 485 Mass.
145, 160 (2020); Commonwealth v. Vinnie, 428 Mass. 161, 175,
cert. denied, 525 U.S. 1007 (1998).
Matthew argues that the presentation to the grand jury of
the financial records and the blog posts, in contrast to the
inclusion of interviews with DCF social workers referring to the
Tuckers in a positive light only as exhibits on disc not
specifically played for the grand jury, created a negative
portrayal of the Tuckers. Similarly, in stating that the
Commonwealth presented "one-sided" testimony by failing to
highlight the positive statements of a social worker
complimenting the Tuckers and the social worker's statement that
the blog posts had "nothing to do with kids," the motion judge
classified the evidence as "exculpatory." However, this
evidence was not "exculpatory," as it did not contradict the 25
evidence presented by the Commonwealth and thus was not material
evidence that the Commonwealth was required to highlight. The
statements consisted only of information that was not a required
element of the offenses charged. Cf. Commonwealth v. Washington
W., 462 Mass. 204, 212-213 (2012) (evidence withheld from grand
jury regarding necessary element of charged offense tainted
integrity of grand jury proceedings, as evidence was material to
question of probable cause for required element and likely
influenced grand jury's decision to indict).
For the first time on appeal, Matthew raises a concern
regarding the impropriety of a statement made by Sergeant Ryan
Dickinson, the lead investigator on the case, that the motion
judge did not address in his decision. Because this alleged
flaw was not "seasonably asserted" at the trial court level, it
is waived, and we review to determine whether there was error
and, if so, whether a substantial risk of a miscarriage of
justice resulted. See Mayfield, 398 Mass. at 622 n.4;
Commonwealth v. Gant, 51 Mass. App. Ct. 314, 320-321 (2001). "A
substantial risk of a miscarriage of justice exists when we have
a serious doubt whether the result . . . might have been
different had the error not been made" (quotation and citation
omitted). Commonwealth v. Curran, 488 Mass. 792, 794 (2021).
Sergeant Dickinson testified that, when interviewed, the
Tuckers' eldest daughter, Darlene, stated that Garrett "had a 26
slight cough" and was "struggling to breath." However,
examination of the interview indicates that Darlene told police
that Garrett was getting better and was "coughing a little bit
and that's really what he was doing. He was having a little
trouble breathing."8 The Commonwealth did not correct
Dickinson's statement. The Commonwealth also omitted Darlene's
statement that Garrett "seemed fine, and pretty cheerful."
Arguably, this is a slight mischaracterization of Darlene's
statements and could satisfy the first two prongs of Mayfield;
however, this is a minor misstep in the context of overwhelming
evidence concerning Garrett's condition, including the video of
him struggling to breathe and then stopping and remaining still
for hours. See Brown, 490 Mass. at 184-186 (Commonwealth's
introduction of "inflammatory" evidence without responsibly
weighing its fairness satisfied reckless behavior prong but did
not require vacation of indictments where grand jury were
presented with sufficient evidence to establish probable cause).
Cf. O'Dell, 392 Mass. at 449 (distortion of defendant's
statements by omitting key portions of statement impaired grand
jury's understanding of facts, thereby impairing grand jury's
integrity). Notwithstanding this possible impropriety, and that
8 The Commonwealth did not play the interview for the grand jury, but provided the videos as an exhibit that the grand jury could review at their discretion. 27
a grand juror commented on the daughter's ability to recognize
Garrett's health issue where Matthew seemingly could not, for
the reasons stated above, when viewed in the context of the
entire proceeding, the evidence probably did not influence the
grand jury's decision to indict. Therefore, we discern no
substantial risk of a miscarriage of justice. See Vinnie, 428
Mass. at 175.
ii. Cassandra's arguments. For the first time on appeal,
Cassandra raises a litany of errors that, she alleges, the
Commonwealth committed in its presentation of evidence to the
grand jury. In addition to the arguments raised by Matthew -–
namely, the prejudicial impact of the financial records, the
blog posts, Darlene's statement, and the failure to highlight
positive statements from the social workers -- Cassandra asserts
error in the Commonwealth's statement that DCF took
"disciplinary action" against the Tuckers because of the blog,
the presentation of the missed December 18 doctor's appointment,
and the Commonwealth's failure to correct a witness's testimony
about the medical condition of the Tuckers' youngest daughter.
The combination of these errors, she argues, requires an
affirmance of the dismissal of the indictments. Again, because
these alleged flaws were not raised at the trial court level,
they are waived, and we review to determine whether there was
error and, if so, whether a substantial risk of a miscarriage of 28
justice resulted.9 See Mayfield, 398 Mass. at 622 n.4; Gant, 51
Mass. App. Ct. at 320-321.
We begin with Cassandra's argument that the "disciplinary
action" statement presented by the Commonwealth was false. See
Mayfield, 398 Mass. at 621-622. The prosecutor asked Sergeant
Dickinson, "So, was there a point in time where [DCF] took
disciplinary action against the Tuckers during their tenure as
foster parents?" The sergeant replied in the affirmative, and
the prosecutor asked, "And what was the reason for this
discipline?" The witness then discussed the blog posts.
Cassandra argues that the Commonwealth was aware that DCF did
not take disciplinary action against the Tuckers, and thus
presented false questions and testimony to the grand jury. See
Commonwealth v. Salman, 387 Mass. 160, 161, 167 (1982).
However, upon review of the transcript, the prosecutor expanded
on the "action" taken by DCF. She asked, "So, Ms. Barlow-Tucker
did stop posting her blog after DCF raised their concerns with
her, correct?" The witness replied, "I believe so." Contrary
to Cassandra's arguments, the Commonwealth represented that the
action taken by DCF was to engage in a conversation about the
9 For the reasons we set forth rejecting Matthew's arguments, Cassandra's arguments about the impact of the financial records, the blog posts, Darlene's statement, and the failure to highlight positive statements from the social workers, when viewed in the context of the entire proceeding, probably did not influence the grand jury's decision to indict. 29
appropriateness of the blog posts. There was no attempt to
mislead the grand jury and thus no error. See Commonwealth v.
Jewett, 442 Mass. 356, 364-365 (2004).
Next, Cassandra asserts that the Commonwealth's
presentation of the DCF policy and Garrett's missed December 18
follow-up appointment, along with the Commonwealth's failure to
highlight her December 20 e-mail message to DCF checking on the
status of the December 18 appointment, created a false and
misleading impression that she could not be bothered to take
Garrett to the doctor, which prejudiced her. She maintains that
the Commonwealth misled the grand jury by focusing on portions
of the Model Approach to Partnership in Parenting manual that
stated the foster family agreed to schedule and keep any follow-
up appointments, despite the Commonwealth's knowledge that the
arrangement of who would take the child to the appointments was
an appointment-by-appointment or case-by-case basis. We
disagree. The portion of the manual read to the grand jury
stated that DCF delegated the authority to the foster parent to
arrange medical care on the child's behalf. It did not state
that it was the foster parents' sole responsibility to arrange
the medical care. In fact, the grand jury heard testimony
indicating the opposite. The grand jury heard that the social
worker, Helen, took Garrett to his December 10 appointment and
knew about the December 18 follow-up appointment. 30
Although the Commonwealth did not present live testimony
about Cassandra's follow-up e-mail message to DCF regarding the
missing appointment, the Commonwealth did present discs
containing the information for the grand jury to review.
Further, through the recorded police interview, the grand jury
heard Cassandra's statements that the responsibility for taking
the children to the doctor's appointments depended on the social
worker, which was corroborated by Dickinson's and Kumar's
statements that a social worker took Garrett to his December 10
appointment -- which was after Garrett began residing with the
Tuckers on December 5. Moreover, the issue presented in these
cases was not whether the Tuckers provided follow-up medical
care. The issue was whether they provided medical care after
they became aware that he had a serious illness. By all
accounts, in December 2019, Garrett was relatively healthy. It
was not until late January or early February 2020 that he became
seriously ill and, as the Commonwealth argues, required medical
attention to address his ailments. That the Commonwealth did
not highlight the December 20 e-mail message for a routine
appointment was neither false nor misleading.
Last, Cassandra asserts that the Commonwealth's failure to
correct a witness's testimony about the medical condition of the
Tuckers' youngest daughter, Jessica, was prejudicial. On the
last day of testimony, a grand juror asked the witness, a speech 31
pathologist, whether the daughter had a certain medical
condition. The medical condition that the juror mentioned was
not the accurate condition that the daughter had. Nonetheless,
the witness replied, "Yes. I mean, she has a lot of complex
medical." The juror prodded, "And that's a respiratory issue,
right," to which the witness responded, "I don't think, yeah."
The juror inquired later, "So that one could assume that the
foster parents would have some understanding of a respiratory
ailment, toward like the sound of one?" The prosecutor gave an
instruction that the witness provide only an answer from her
personal knowledge or medical expertise as a speech pathologist.
The witness responded, "Yeah. So, I wouldn't know." The
Commonwealth did not correct the misimpression regarding the
daughter's medical condition.
"Evidence submitted in response to a question by a grand
juror . . . is less problematic than evidence submitted 'by the
prosecutor's design.'" Brown, 490 Mass. at 185, quoting Vinnie,
428 Mass. at 174-175. The grand juror's statements about the
medical condition, and the witness's response, were inaccurate.
Thus, arguably, the first prong of Mayfield, i.e., that false
evidence was presented to the grand jury, was met. See
Mayfield, 398 Mass. at 621.
However, Cassandra is unable to meet the remaining two
prongs -- that the evidence was presented for the purpose of an 32
indictment and probably influenced the jury. "The record is
devoid of evidence that the . . . [witness's] responses . . .
were presented to the grand jury in bad faith. Nor do we find
any evidence that the factual discrepancies were knowing or
purposeful." Commonwealth v. Mathews, 450 Mass. 858, 876
(2008). It appeared that the witness, a speech pathologist,
confused one ailment with another. When the prosecutor realized
that the witness's responses to the juror's questions may have
been at the brink of the witness's personal knowledge or
professional expertise, the prosecutor provided a limiting
instruction, after which the witness stated that she did not
know the answer to the juror's question. The evidence was not
presented for the purpose of an indictment, nor did it probably
influence the jury. Additionally, given the evidence presented
against the Tuckers, the statement probably did not have an
impact on the grand jury's decision to indict, and thus did not
create a substantial risk of a miscarriage of justice.
Therefore, Cassandra has failed to show that the Commonwealth's
alleged misconduct created a substantial risk of a miscarriage
of justice. See id.
3. Conclusion. Based on the foregoing, we reverse the
order allowing the defendants' motions to dismiss. We remand
the cases to the Superior Court for further proceedings
consistent with this opinion. 33
So ordered.