Commonwealth v. Riley

995 N.E.2d 823, 84 Mass. App. Ct. 272, 2013 WL 5273072, 2013 Mass. App. LEXIS 147
CourtMassachusetts Appeals Court
DecidedSeptember 20, 2013
DocketNo. 11-P-846
StatusPublished
Cited by1 cases

This text of 995 N.E.2d 823 (Commonwealth v. Riley) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Riley, 995 N.E.2d 823, 84 Mass. App. Ct. 272, 2013 WL 5273072, 2013 Mass. App. LEXIS 147 (Mass. Ct. App. 2013).

Opinion

Cohen, J.

A grand jury returned indictments charging the [273]*273defendant, Carolyn Riley, and her husband, Michael Riley, with murder in the first degree in connection with the December, 2006, death of their four year old daughter, Rebecca, from an overdose of clonidine and other medications administered to her by her parents. After this court determined that the evidence before the grand jury was sufficient to sustain the indictments, see Commonwealth v. Riley, 73 Mass. App. Ct. 721, 722-726, 729-731 (2009), the defendant and her husband were tried separately in the Superior Court. In the defendant’s case, the jury returned a verdict of guilty of the lesser included offense of murder in the second degree.1 She appeals, arguing that (1) the judge erroneously admitted the testimony of the Commonwealth’s forensic toxicologist without conducting a Daubert-Lanigan hearing;2 (2) the evidence was insufficient to prove third prong malice and, hence, the jury should not have been instructed on that form of malice; and (3) the judge erroneously allowed prejudicial character evidence to be admitted. Discerning no merit in these arguments, we affirm.

The facts that the jury could have found are not significantly different from those presented to the grand jury and are well summarized in Commonwealth v. Riley, supra at 722-726. We refer to relevant trial evidence and procedural facts in conjunction with our discussion of the issues raised.

1. Testimony of Commonwealth’s forensic toxicologist. Before trial, the defendant filed a motion in limine seeking a Daubert-Lanigan hearing on the scientific reliability and admissibility of the testimony of Dr. George S. Behonick, who, at the time of Rebecca’s death, was the director of forensic toxicology at the University of Massachusetts Memorial Medical Center in Worcester. The defendant’s challenge was predicated on the assumption that Dr. Behonick would opine as to the amount of clonidine consumed by Rebecca prior to her death based upon the level of clonidine found in her blood post mortem. According to the defendant, because clonidine is subject to the phe[274]*274nomenon known as “post mortem redistribution,” post mortem blood levels of the drug would not be a reliable indicator of the amount administered ante mortem.

At a pretrial hearing, defense counsel referred to the motion in limine, and two days later, after the jury had been empanelled but before the trial began, argued that the defendant was entitled to a Daubert-Lanigan hearing. After considering the argument, the judge stated that he would “rule on this during the course of the trial.” At trial, however, counsel did not renew the argument that Dr. Behonick’s testimony should be excluded as unreliable. Counsel did not object to the witness’s testimony on reliability grounds, nor did he move to strike the testimony after it was received.

Ordinarily, we review Daubert-Lanigan rulings for abuse of discretion. See, e.g., Commonwealth v. Avila, 454 Mass. 744, 764 (2009). Here, however, the defendant did not adequately preserve the issue for appellate review. Contrast Commonwealth v. Gambora, 457 Mass. 715, 723 (2010); Commonwealth v. Pytou Heang, 458 Mass. 827, 836 (2011). Accordingly, we review only to determine if there was any error in the admission of Dr. Behonick’s testimony, and, if so, whether the error created a substantial risk of a miscarriage of justice. See, e.g., Commonwealth v. Jones, 464 Mass. 16, 18 (2012). We conclude that there was no error if only because, contrary to the defendant’s claim, Dr. Behonick did not use post mortem drug levels to determine the dose of clonidine administered to Rebecca before her death, and did not testify to any such analysis or calculations.

Dr. Behonick testified that he had received a variety of samples from the autopsy performed on Rebecca, including samples of her blood. Because his laboratory did not have the ability to accurately test for clonidine, he sent blood samples taken from Rebecca’s heart to a highly regarded laboratory in Pennsylvania. When the results were returned they indicated the presence of nineteen nanograms of clonidine per milliliter of heart blood, a level that Dr. Behonick described as excessive and toxic, prompting him to request additional testing of a peripheral blood sample.

Dr. Behonick explained the widely understood phenomenon known as “post mortem redistribution” whereby, after death, a [275]*275drug may diffuse from other organs, like the lungs or the liver, and artificially raise the concentration of the drug in the heart. He further explained that forensic toxicologists recognize this effect on heart blood and have determined that the most accurate concentration of the drug is likely to be detected in a peripheral sample such as iliac blood or femoral blood. For that reason, he requested that the Pennsylvania laboratory perform additional testing on Rebecca’s femoral blood. That testing revealed the presence of twelve nanograms of clonidine per milliliter of femoral blood.

To put this number in context, Dr. Behonick was asked by the prosecutor to calculate the level of clonidine that likely would have been in Rebecca’s blood had she been alive and taken her entire prescribed daily dose at one time. Based on Rebecca’s body weight and the amount of the prescribed dose, Dr. Behonick explained that there is a mathematical formula, widely accepted in the medical community, for performing this calculation. He applied this formula to Rebecca’s daily prescribed dose and used her body weight at death to conclude that the clonidine level would have been between four and seven nanograms per milliliter. Using the same formula, Dr. Behonick further explained that if the dose had been doubled, the clonidine level in the blood also would have doubled and would have been between eight and fourteen nanograms per milliliter.

During cross-examination, Dr. Behonick made clear that none of the hypothetical ante mortem calculations he presented relied upon the post mortem clonidine level, stating: “I am not back calculating. ... It was not a retrograde calculation.” He readily acknowledged that after death there is a dynamic that can alter drug concentration levels in blood and explained that forensic toxicologists try to take those fluctuations into account by, for example, obtaining femoral blood to test, rather than heart blood. He emphasized, however, that his prospective calculations were based entirely on a known dose and a known body weight and were completely independent of any post mortem blood concentration level. In other words, the premise of the defendant’s motion in limine — that Dr. Behonick would testify to the amount of clonidine administered to Rebecca before her death based on the results of ostensibly unreliable [276]*276post mortem blood tests — was at odds with Dr. Behonick’s actual testimony.

Notably, the defendant agrees on appeal that the anticipated concentration of a drug in a person’s blood properly can be obtained using the mathematical calculation that Dr. Behonick employed; and the defendant further agrees that the Pennsylvania laboratory accurately measured the amount of clonidine in Rebecca’s post mortem femoral blood sample. Because, as the defendant recognizes, the science underlying both figures is reliable, there was no basis to exclude either of them pursuant to a Daubert-Lanigan challenge.

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Related

Commonwealth v. Riley
7 N.E.3d 1060 (Massachusetts Supreme Judicial Court, 2014)

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Bluebook (online)
995 N.E.2d 823, 84 Mass. App. Ct. 272, 2013 WL 5273072, 2013 Mass. App. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-riley-massappct-2013.