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13-P-928 Appeals Court
COMMONWEALTH vs. CHRISTINE M. PACKER.
No. 13-P-928.
Hampden. May 6, 2014. - October 27, 2015.
Present: Berry, Milkey, & Maldonado, JJ.
Assault and Battery. Parent and Child, Discipline. Child
Abuse. Practice, Criminal, Affirmative defense, Request
for jury instructions, Instructions to jury, Presumptions
and burden of proof.
Complaint received and sworn to in the Westfield Division
of the District Court Department on April 1, 2011.
The case was tried before Philip A. Contant, J.
Jessica L. LaClair for the defendant.
Deborah D. Ahlstrom, Assistant District Attorney, for the
Commonwealth.
MILKEY, J. Following a jury trial in the District Court,
the defendant, Christine M. Packer, was convicted of assault and
battery of her fourteen year old stepdaughter (daughter),
pursuant to G. L. c. 265, § 13(A)(a). The daughter's father was
likewise charged, and there was a joint trial. Both defendants
requested a jury instruction on the affirmative defense of
2
parental discipline. At the conclusion of the evidence, the
judge instructed the jury that they could consider excusing the
father's actions as reasonable parental discipline, but that
they could not do so with regard to the defendant. The jury
found the defendant guilty, while acquitting the father. On
appeal, the defendant argues that this differential treatment
constituted reversible error. Under the particular
circumstances presented, we agree.
Background. The family. At the time of the incident, the
daughter lived with her father, the defendant, and the
daughter's eight year old half-sister (born of the father and
the defendant). The father and the defendant were married, and
the jury reasonably could have inferred that the couple had been
together for at least eight years (the age of the half-sister).1
The father was never married to the daughter's biological
mother, and the daughter never lived with her. In fact, there
was no evidence whatsoever that the daughter's biological mother
had any ongoing parenting role in her life.
With the biological mother playing no apparent role in the
daughter's life, the daughter viewed the defendant as her
"mother" or "mom" (as she repeatedly referred to the defendant
1
In assessing whether the requested instruction was
warranted, we view the relevant trial evidence in the light most
favorable to the defendant. See Commonwealth v. Randolph, 438
Mass. 290, 299 (2002).
3
in her trial testimony). Despite this, or perhaps because of
it, the adolescent daughter's relationship with the defendant
was somewhat volatile. The daughter testified that she
simultaneously loved and could not "stand" the defendant. When
the father's counsel tried to get her to acknowledge that she
did not consider the defendant as her "mother," the daughter
denied this.
The daughter fought with both her father and the defendant
from time to time. She acknowledged that at least some of that
conflict was over whether she "lied to them or told the truth."
She also acknowledged multiple instances of her lying to the
defendant or others.2 The events that gave rise to the assault
and battery charges arose in this context.
The incident. On March 30, 2011, the daughter went into
the family's kitchen at approximately 5:30 A.M. to eat breakfast
before school. The defendant was already there, where she was
2
In her testimony, the daughter admitted to lying to the
defendant, school officials (Q.: "You lied to the school
officials, correct?"; A.: "Yes."), and the police (Q.: "And
it's fair to say you didn't tell [the investigating officer] the
truth, correct?"; A.: "Yes."). In fact, she "admitted to at
least being inaccurate on a minimum of five occasions" in the
testimony she had given at trial. The daughter also admitted
that in February of 2012 (that is, some ten months after the
incident), she wrote the father a letter in which she stated,
"When this is all resolved, I hope you'll be able to believe and
trust me." The jury could have inferred from such a statement
that the daughter was acknowledging that she had given her
parents reason not "to believe and trust" her. There was ample
evidence on which reasonable jurors could conclude that the
daughter lied on a persistent basis.
4
making the daughter a boxed lunch for school. The two had a
conversation in which the defendant "very nicely" offered the
daughter some fruit that she was cutting up. At one point, the
defendant noticed that some cheese she had expected to find in
the refrigerator was missing, and she asked the daughter whether
she had eaten it. The daughter initially denied that she had
done so. However, after being challenged by the defendant about
the truthfulness of that denial, the daughter admitted to having
eaten the cheese.
According to the daughter's testimony, the defendant
proceeded to strike the daughter's right ear with her hand
causing it to bleed. In addition, the defendant threw the
daughter's cellular telephone across the room. After the
daughter went to her bedroom, the defendant entered the bedroom
and grabbed and pulled the daughter's hair. The defendant and
the father then spoke privately. Although there was no direct
testimony about what the two said to each other, the daughter
testified that the defendant went to get the father to "settle
the dispute." The father proceeded to the daughter's bedroom
where -- according to the daughter's testimony -- he twice
pretended to punch her in the face and then actually did so.
Later that day, the daughter reported the incident to her
ninth grade adjustment counselor at a regularly scheduled
meeting. The counselor did not notice any physical marks on the
5
daughter when she first arrived. However, after the daughter
reported the incident, the counselor carefully examined the
daughter's head and was able to observe a swollen lip and cut
gum (in the area where the father allegedly "punched" her), and
a "red like scratch mark" on the daughter's right ear (where the
defendant allegedly struck her). An investigation and these
charges ensued.
The jury instruction. When the defendant and the father
requested a parental discipline instruction, the Commonwealth
argued that neither one was entitled to such an instruction.
Specifically, the Commonwealth argued that no reasonable jury
could conclude either that the defendant and the father were
engaged in disciplining the daughter, or -- even if their
actions did amount to discipline -- that they employed only
"reasonable" force. The judge ultimately rejected that
argument, and he therefore decided to give a parental discipline
instruction for the father, the daughter's legal parent. He
instructed the jury that "[a] parent may use reasonable force to
discipline his minor child . . . [but] may not use excessive
force as a means of discipline or chastisement."3
3
The judge appears to have relied on instruction 3.15 of
the Massachusetts Superior Court Criminal Practice Jury
Instructions (Mass. Cont. Legal Educ. 1st Supp. 2003), which
reads in full as follows:
"PARENTAL DISCIPLINE
6
Notably, in opposing a parental discipline instruction for
both the defendant and the father, the Commonwealth did not
differentiate between the two. Indeed, the prosecutor himself
earlier in the trial referred to the defendant as "the mother"
and used the term "their . . . daughter" in reference to the
defendant and the father.4 Nevertheless, the judge sua sponte
decided to treat the defendant differently from the father. He
not only denied the defendant's request for the same
instruction, but also instructed the jury that "you may consider
this principle [of parental discipline] only in the case against
[the codefendant father], not in the case against [the
defendant]." As discussed infra, the judge read Commonwealth v.
O'Connor, 407 Mass. 663 (1990) (O'Connor), as commanding this
result. The defendant timely objected to this differential
treatment.
"A parent, or one acting in the position of a parent and
who has assumed the responsibilities of a parent, may use
reasonable force to discipline (his/her) minor child.
However, a parent may not use excessive force as a means of
discipline or chastisement."
We note that in 2013, although the language did not change, this
instruction became instruction 5.11.
4
To the extent that anyone at trial emphasized the
defendant's status as a mere stepparent, it was the father's
counsel. Relying in part on an allusion to Cinderella, the
father's counsel suggested to the jury that the daughter so
wanted to escape living with the defendant that she lied about
the assaults.
7
Discussion. In Commonwealth v. Dorvil, 472 Mass. 1, 2, 12
(2015) (Dorvil), the Supreme Judicial Court expressly recognized
a common-law parental privilege to use reasonable force to
discipline a minor child. The court laid out the contours of
such a defense as follows:
"[A] parent or guardian may not be subjected to criminal
liability for the use of force against a minor child under
the care and supervision of the parent or guardian,
provided that (1) the force used against the minor child is
reasonable; (2) the force is reasonably related to the
purpose of safeguarding or promoting the welfare of the
minor, including the prevention or punishment of the
minor's misconduct; and (3) the force used neither causes,
nor creates a substantial risk of causing, physical harm
(beyond fleeting pain or minor, transient marks), gross
degradation, or severe mental distress."
Id. at 12. Moreover, "[a]s with other affirmative defenses,
where the parental privilege defense is properly before the
trier of fact, the Commonwealth bears the burden of disproving
at least one prong of the defense beyond a reasonable doubt."
Id. at 13. On the trial record established in Dorvil, which
included evidence that the defendant there administered a
"smack" to the clothed bottom of a two year old, the court
determined the evidence insufficient as a matter of law to
support the defendant's conviction of assault and battery. Id.
at 13-15.
In the case before us, the defendant's principal claim is
that the judge erred by instructing the jury that they could
8
consider a parental discipline defense only as to the father.5
The judge denied the defendant the requested instruction solely
because she was not the daughter's legal parent and -- in the
judge's view -- had not sufficiently demonstrated that she was
acting in loco parentis. See O'Connor, 407 Mass. at 668 (a
nonparent seeking to secure a parental discipline instruction
bears the burden of showing "that he or she stands in loco
parentis to the child . . . [and this in turn requires a showing
that the] person . . . assume[s] all the duties and obligations
of a parent toward the child").
Commenting on O'Connor, the judge stated that being a
stepparent by itself is insufficient to establish that one is
acting in loco parentis and that instead "you'd almost have to
take over for the actual parent." The judge then highlighted
that here, "the actual parent [presumably, the father] lived in
the same household." The judge added that "there's no evidence
or basis on which a jury could decide that [the defendant] stood
in local parentus [sic] for this child."
As an initial matter, we consider whether Dorvil left open
the possibility that one acting in loco parentis may raise a
5
There is no merit to the defendant's separate argument
that the evidence of an assault and battery was insufficient as
a matter of law. Viewing the trial evidence in the light most
favorable to the Commonwealth, see Commonwealth v. Latimore, 378
Mass. 671, 677-678 (1979), there was ample basis upon which
jurors could have concluded that the defendant's hitting the
daughter did not constitute reasonable parental discipline.
9
parental discipline defense. The Commonwealth accurately
observes that Dorvil states that such a defense is available to
a "parent or guardian." 472 Mass. at 12. However, Dorvil
involved a defendant who was the child's legal parent, and it
therefore unsurprisingly did not address the rights of someone
acting in loco parentis. To be sure, at the time the Supreme
Judicial Court resolved O'Connor, it had not squarely decided
that a common-law parental discipline defense existed for
anyone. However, the analytical premise of O'Connor is that one
serving in loco parentis has whatever rights a legal parent has.
We see nothing in Dorvil's shorthand reference to "parent or
guardian" as intended to undo that premise.
The defendant urges us to adopt a general presumption that
stepparents act in loco parentis with regard to their spouses'
children. We decline to do so. The mere fact that one is
married to a legal parent obviously may say little about the
nature and extent of the particular parenting role that he or
she plays, and that role presumably will vary from household to
household. See O'Connor, 407 Mass. at 668 ("an in loco parentis
relationship does not arise merely because someone in a position
of stepparent has taken a child into his or her home and cares
for the child").
At the same time, we consider it equally self-evident that
stepparents are not precluded from playing an in loco parentis
10
role just because one of the children's legal parents also
resides in the same household (as is typically the case).
Massachusetts cases have long recognized the pervasiveness of
diverse family structures, including the blended family. For
example, in Mulhern v. McDavitt, 16 Gray 404, 406 (1860), the
Supreme Judicial Court observed that "[i]n this commonwealth it
is quite common, upon second marriages, that the wife's children
are received into the family as members; and such an arrangement
must tend to promote the happiness of the mother and the welfare
of the children." The court noted that a stepparent, by
receiving a spouse's child into the family, may stand in loco
parentis, with the "rights and obligations of a parent," and
further noted that "the policy of the law is to encourage an
extension of the circle and influence of the domestic fireside,
and its presumptions are in favor of the existence of this
relation." Ibid.6 Massachusetts case law firmly recognizes and
affirms the reality that many children live in households headed
by at least one person who, although performing a critical
parenting role, is neither biologically nor legally related to
them. See E.N.O. v. L.M.M., 429 Mass. 824, 829, cert. denied,
6
See Roush v. Director of the Div. of Employment Security,
377 Mass. 572, 575-576 (1979), quoting from Coakley's Case, 216
Mass. 71, 74 (1913) ("The voluntary assumption of the
obligations of parenthood toward children of a spouse by another
marriage is one favored by the law. They may be included under
the descriptive word 'family'").
11
528 U.S. 1005 (1999) (observing, in the context of same-sex
couples prior to the recognition of same-sex marriage rights,
that a "child may be a member of a nontraditional family in
which he is parented by a legal parent and a de facto parent").
Massachusetts statutes, too, recognize the important parental
role that stepparents and others can serve.7
Against this rich backdrop, the meaning and reach of the
dicta in O'Connor come into sharper focus. Although the court
stated there that an "[i]ntent to replace a natural parent is
never to be lightly inferred," it did not purport to establish a
bright line test for resolving whether in loco parentis status
applies. O'Connor, 407 Mass. at 668. The defendant in O'Connor
was a mere boy friend of the child victim's mother who resided
in the same home in an "impermanent living arrangement," and who
made no apparent financial contribution to the household. Id.
at 664, 668-669. In addition, the child's biological father (in
addition to the mother) continued to play an active parenting
7
See, e.g., G. L. c. 209B, § 5, inserted by St. 1983,
c. 680, § 1 (rights of "persons acting as parents" to notice and
the opportunity to be heard in child custody proceedings); G. L.
c. 112, § 12E 1/2, inserted by St. 2012, c. 244, § 10 (mandated
notification of "other person[s] having custody or control of a
minor child" where the minor is treated for drug or alcohol
overdose); G. L. c. 175, § 123 (stepparents are authorized to
include stepchildren as insured family members on joint life
insurance policies); G. L. c. 118, § 1 (stepparents are included
within the definition of parent for the purposes of public
assistance); G. L. c. 119, § 21 (stepparents are included within
the definition of relatives under the child protection statute).
12
role in the child's life. Id. at 669. It was under these
circumstances that the court concluded that "there was no basis
on which a jury could decide that the defendant stood in loco
parentis to the victim." Ibid.8
The adult-child relationship before us bears little
resemblance to the one at issue in O'Connor. Instead of being
an itinerant boy friend or girl friend, the defendant was the
child's long-term stepparent who lived full time in the same
household. Moreover, as noted, there was no evidence that the
daughter's biological mother played any ongoing role in her
life. Significantly, the daughter viewed the defendant as her
"mother," providing robust evidence that the defendant served
that role in the family. Cf. Commonwealth v. Torres, 442 Mass.
554, 568 (2004) (fact that children referred to the defendant as
"Daddy" signified their "understanding that the defendant had a
parental role in the household"). Although the precise nature
of the relationship between the daughter and the defendant was
not fully developed at trial, the thrust of the evidence was
that the defendant was part of a stable family unit and that she
8
It was also in this context that the court commented that
"[t]he key factors to a threshold showing of in loco parentis
status are the intent to take over the position of parent, and
the discharge of support and maintenance responsibilities toward
the child." O'Connor, 407 Mass. at 668. We do not interpret
that passage as precluding fact finders from inferring a
defendant's "intent to take over the position of parent" from
her actions and circumstances. Nor do we view it as requiring a
defendant to prove that she is the family "bread winner."
13
functionally served as mother and coparent to the daughter. In
our view, there was a sufficient basis on which the jury could
have concluded that the defendant served an in loco parentis
role.9 See O'Connor, 407 Mass. at 668, citing with apparent
approval Gribble v. Gribble, 583 P.2d 64, 66, and see 65-68
(Utah 1978) (where the former stepfather had "lived with the
child from the time he was two months old . . . and . . . the
child . . . had no contact with his biological father," a
hearing was required to determine whether an in loco parentis
relationship existed entitling the stepfather to visitation
rights).10 Any doubt as to whether the defendant was playing an
9
The Commonwealth is incorrect in asserting that the
defendant cannot claim in loco parentis status and the
concomitant parental discipline instruction where she did not
take the stand or otherwise put on her own case. The defendant
was entitled to such an instruction if "any view of the evidence
would provide support for an affirmative defense." Commonwealth
v. Monico, 373 Mass. 298, 299 (1977). See Commonwealth v.
Eberle, 81 Mass. App. Ct. 235, 239 (2012) (evidence supporting
an affirmative defense may come entirely from the Commonwealth's
case). Nor was the defendant precluded from requesting the
instruction by her taking the position that she never in fact
struck the daughter. See generally Commonwealth v. Callahan,
401 Mass. 627, 636 (1988) (recognizing that it can be a
reasonable defense strategy for counsel to argue only one theory
of defense to the jury and to leave it to the judge to instruct
them on another).
10
See also Commonwealth v. Clark, 393 Mass. 361, 366
(1984), which concerned a nonparent's potential criminal
liability for failing to obtain medical care for his partner's
child. The court reversed the dismissal of a criminal
indictment, declining to hold on the undeveloped record that
"only a parent, guardian or person entrusted with legal custody
14
in loco parentis role should have been left to the jury as fact
finder.11
The Commonwealth asks us to affirm on the ground that the
defendant was not entitled to a parental discipline instruction
even if she had been serving in loco parentis. Its contention
that there was "no evidence" that the defendant was engaged in
discipline is simply at odds with the record. There was
evidence that the daughter had a history of conflict with her
parents over whether she lied to them, that she had given her
parents reason not "to believe and trust" her, that she lied on
a persistent basis, and that the defendant in fact struck her in
direct response to her having admitted just such a lie. On the
record before them, it was open for the jury to find (had they
been so instructed) that the defendant's actions were
"reasonably related to the purpose of safeguarding or promoting
the welfare of the minor, including the prevention or punishment
of a child" may have legal duties with regard to a child in the
same household.
11
This could have been accomplished by giving the full
model parental discipline instruction available at the time,
which referred to a "parent, or one acting in the position of a
parent and who has assumed the responsibilities of a parent."
See note 3, supra. Presumably, the model instruction will be
modified to include the additional teachings of Dorvil.
15
of the minor's misconduct [here, the daughter's repeated
lying]."12 Dorvil, 472 Mass. at 12.
The Commonwealth principally contends, as it did below,
that the defendant struck the daughter out of anger or
frustration, and that she therefore cannot claim that she was
engaged in discipline at all. However, the Supreme Judicial
Court rejected just such an argument in Dorvil, ruling that the
viability of a parental discipline defense should not turn on
the parent's emotional state. See id. at 13-14 (expressly
abrogating dicta in Commonwealth v. Rubeck, 64 Mass. App. Ct.
396, 400-401 [2005]). As the court explained, "It is
understandable that parents would be angry at a child whose
misbehavior necessitates punishment, and we see no reason why
such anger should render otherwise reasonable uses of force
impermissible." Dorvil, 472 Mass. at 14.
The Commonwealth additionally argues that the defendant
(and the father) should not have been allowed to raise a
parental discipline defense because the amount of force they
used was excessive as a matter of law. We are not unsympathetic
to this argument, especially with regard to the father. See
Commonwealth v. Torres, 442 Mass. at 568-569 n.11 (parental
12
The evidence supporting an affirmative defense need not
come from a defense witness. See note 9, supra. In assessing
whether a jury instruction was warranted, the question is
whether "any view of the evidence would provide support for an
affirmative defense." Commonwealth v. Monico, 373 Mass. at 299.
16
discipline instruction was not warranted where the evidence of
physical abuse by the parent was so extreme that no reasonable
jury could have found it justified). However, viewing the
evidence in the light most favorable to the defendant,
reasonable jurors could have concluded on this record that she
did not "cause[], []or create[] a substantial risk of causing,
physical harm (beyond fleeting pain or minor, transient marks),
gross degradation, or severe mental distress." Dorvil, 472
Mass. at 12. In this regard, we note that although the jury
evidently concluded that the defendant touched the daughter in
some fashion, the degree of force she used was hardly
definitively established, especially where the corroborating
testimony described the resulting injury only as a "scratch."13
While there is considerable force to the Commonwealth's position
that the defendant's behavior should not be viewed as reasonable
parental discipline, her actions were not so out of bounds as to
exclude such a defense from the jury's consideration.14 In our
13
Police photographs of the daughter's injuries were never
entered in evidence because the Commonwealth failed to turn over
the photographs in timely discovery. Our dissenting colleague
has not explained how, even if the jurors credited the testimony
that the daughter suffered a "scratch," they were precluded as a
matter of law from finding that the daughter suffered only a
"minor, transient mark[]." Dorvil, 472 Mass. at 12.
14
In Dorvil, the court concluded, as a matter of law, that
a parent cannot be convicted of assault and battery for
disciplining a disobedient two year old child by "smack[ing]"
her on a clothed bottom. 472 Mass. at 13. Our dissenting
17
view, the judge did not err in concluding -- after considerable
reflection -- that were the defendant acting in loco parentis,
it would have been for the jury to weigh her parental discipline
defense.15
Moreover, even if neither codefendant were entitled to a
parental discipline instruction, the judge's differential
treatment of the two similarly situated codefendants caused
fundamental unfairness to the defendant and independently
constituted error. By treating the defendant and the father
differently in a manner not warranted by the evidence, the
judge's instructions tended to invite the jury to focus on the
defendant as the more culpable party. Cf. United States v.
Brandon, 17 F.3d 409, 453 (1st Cir.), cert. denied sub nom.
Granoff v. United States, 513 U.S. 820 (1994) (discussing the
difficult choices trial judges face in fashioning jury
colleague urges that we hold, again as a matter of law, that
disciplining a disobedient fourteen year old by striking her ear
cannot constitute reasonable parental discipline. If we were so
to conclude, one would be left to wonder what role, if any,
juries are to play in resolving what constitutes reasonable
parental discipline.
15
The trial judge in fact initially expressed his
reservations about giving either party such an instruction,
stating that he was "not convinced at this point that there's
sufficient evidence to raise this disciplinary defense."
However, as noted, the judge ultimately provided the father the
requested instruction, and he deprived the defendant of the
instruction solely because of his view that she could not show
in loco parentis status. Thus, the judge ultimately rejected
the Commonwealth's argument that the evidence was insufficient
to raise a parental discipline defense.
18
instructions in multiple defendant cases and the potential
dangers of inadvertently "turn[ing] the spotlight" on one
defendant).
The defendant's claim of error was fully preserved, and the
only remaining question is whether the faulty instructions
constituted prejudicial error. The father received the benefit
of the instruction, and the jury acquitted him even though the
evidence strongly suggests that, if anything, he struck the
daughter with more force than did the defendant. Under these
circumstances, we "cannot say, with fair assurance . . . that
the judgment was not substantially swayed by the error."
Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994)
(quotation omitted).16 In any new trial, the judge will be free
to revisit whether a parental discipline instruction is
warranted on the evidence presented.
Judgment reversed.
Verdict set aside.
16
The defendant also asserts error in the prosecutor's
closing. We need not address that claim, which is unlikely to
arise in any retrial.
BERRY, J. (dissenting). The majority opinion, I
respectfully submit, misapprehends the law of affirmative
defenses in this very important area of parental discipline.
One who invokes the affirmative defense of parental discipline
has a burden to offer some evidence warranting such an
affirmative defense instruction -- either by cross-examination
in the direct case or in a defense case. That was not done
here. Instead, the defense case rested on a theory of
fabrication. See note 4, infra.
The effect of the majority opinion, I believe, may have
untoward consequences. It may be read to mean a parental
discipline instruction is warranted in any case involving the
hitting of a child for any/every lie, major or minor -- and a
host of other childhood infractions. Under the majority
opinion, if a child lies about doing homework, is a parental hit
within the majority's realm? If a child eats candy and is not
supposed to do that, is that within the majority realm? If a
child has been untruthful at any time in the past and argued
with parents in the past, then may the child be whacked across
the face yielding blood, the child's cellular telephone taken
and flung across a small room, and the child pursued to her
bedroom to have hair pulled, all within the majority realm? The
last answer is "yes," based on this case, and that should be
2
beyond the pale of any reasonable excuse/justification/parental
discipline affirmative defense.
In what appears to me to be a misapprehension of the law of
evidence on affirmative defenses, the majority seems to take the
position that the simple answer is that all this is just a jury
question. See ante at ("On the record before them, it was
open for the jury to find [had they been so instructed] that the
defendant's actions were 'reasonably related to the purpose of
safeguarding or promoting the welfare of the minor, including
the prevention or punishment of the minor's misconduct [here,
the daughter's repeated lying]'"). However, the majority
incorrectly, I think, is merging the "it is a jury question" for
jury deliberations and verdict, with the separate and distinct
precedent governing the legal responsibility of a judge to make
a preliminary legal ruling whether a defendant has adduced
sufficient evidence to get an affirmative defense jury
instruction. Put another way, the affirmative defense of
parental discipline is not just a jury question; it is a judge's
legal instruction determination, followed by a judge's yea or
nea on whether a jury instruction is warranted on the evidence.
To follow the path of the majority, I believe, will yield the
result of most defendants claiming, and trial judges wondering,
whether every lie (or other child misbehavior) is a predicate
for a parental discipline affirmative defense instruction.
3
The daughter did admit throughout her testimony to eating,
and lying about eating, the cheese, which led to the defendant
mother's assaults on the day of the encounter. But, contrary to
the majority's casting of the record, it is not so on this
record that there was evidence that the daughter "lied on a
persistent basis." Ante at .
As basis for this supposed "persistent lying" not proved on
the record, the majority strings together without context a
bunch of the daughter's minor inaccuracies about the events
transpiring on the day of the cheese theft. Thus for example,
the majority, without context, writes that "she 'admitted to at
least being inaccurate on a minimum of five occasions' in the
testimony she had given at trial." Ante at note 2. What the
majority fails to say to provide necessary context is that the
supposed lies and inaccuracies in the daughter's testimony,
including what the majority says were on "five occasions,"
related to the daughter telling the school official that she had
not brought her lunch to school.
Furthermore, contrary to the majority, the daughter
testified that she told the police the truth. Thus, there is a
similar out-of-context reference, and the record is contrary to
what the majority writes in note 2, ante. That is, when
confronted by what was fairly standard defense cross-examination
about what was and was not in the police report and the
4
counselor's description of what she remembered being told, the
daughter was adamant and did not waver, holding fast that she
told the police and the counselor the truth, and did not lie
about the cheese incident. So I do not know from whence in the
transcript comes this majority reference to supposedly heavy
lying to the police and school officials. From what I see in
black and white in the trial transcript, the daughter was
adamant that she told the police and the school counselor the
truth about the assault, and the supposed lies to school
officials seem to be about lunch brought or not brought to
school.
Lastly, I would also note that in other sentence fragments
(see ante at , ) there is a misreading of the evidence to
support a suggestion that the daughter was a serial liar, thus
justifying the beating she received from the mother. In one
such sentence fragment, the majority writes that "[t]here was
evidence that the daughter had a history of conflict with her
parents over whether she lied to them." Ante at - .
Again, this description is without necessary context. The
actual context is as follows, which shows this reference relates
to the daughter living with the grandmother:
Defense counsel: "Okay. You currently live with your
grandmother?"
Daughter: "Yes."
5
Defense counsel: "And you have since this incident?"
Daughter: "Yes."
Defense counsel: "And do you enjoy living with her?"
Daughter: "Yes."
Defense counsel: "When you -- before this incident, did
you at times wish that you lived with your grandmother?"
Daughter: "Sometimes."
Defense counsel: "And sometimes you wished you lived with
grandmother because sometimes you fought with your
parents?"
Daughter: "Yes."
Defense counsel: "And sometimes you fought with your
parents about whether you lied to them or told the truth,
is that true?"
Prosecutor: "Objection."
Daughter: "Yes."1
In sum, the evidence -- particularly the daughter's
testimony -- does not support the majority position that the
assault was justified because of a pattern of regular lies that
warranted child discipline.
1
The same flaws appear in the majority sentence fragment,
ante at - , where the evidence is represented to say that
the daughter "had a history of conflict with her parents over
whether she lied to them, that she had given her parents reason
not 'to believe and trust' her, that she lied on a persistent
basis." This additional reference, like the other majority
reference detailed above, is in the context of the daughter
leaving the parents' household and going to live with her
grandmother.
6
To be clear further about my position in this dissent, even
if the daughter in the past told lies to her parents, what kid
has not done that? Do lies in the past, none of which were even
probed into at trial or shown to be major or to be of and
concerning matters of the child's safety, justify an assault
upon the daughter for taking some cheese from a refrigerator and
not immediately confessing thereto for a minute or so? I simply
do not see the justification for the affirmative defense of
parental discipline that the majority would take from this
record.
Lastly, as discussed further herein, the majority would
make one legal error in giving the father a parental discipline
instruction (to which he was not entitled after he punched his
daughter in the face) into a different and separate legal error
as grounds to reverse the conviction of the mother, who also was
not, on the evidence, entitled to a parental discipline
affirmative defense instruction.
It is clear that the majority -- having determined that
there will be a reversal -- turns its attention to an in loco
parentis analysis. I disagree with the majority analysis and
its seeking to make this arcane case law the foundation for the
parental discipline instruction in future cases -- especially on
this extremely thin trial record. I think the Supreme Judicial
Court decision in Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015)
7
(Dorvil), was clear in its extension to a "parent or guardian,"
and was not intended to rest on in loco parentis. But, perhaps,
whether the Supreme Judicial Court wants trial judges to study
in loco parentis is a matter for that court to determine should
it deem further appellate review warranted -- a path I would
urge in this case.
I turn now in this dissent to analysis of those points of
divergence from the majority opinion.
As to the defendant mother's appeal (which is the only
appeal before this court),2 there was not sufficient evidence by
any measure to support a parental discipline affirmative defense
to the mother's assault and battery upon the daughter by a hit
across the face that led to bleeding, the grabbing and pulling
of the daughter by her hair, or the throwing of the daughter's
cellular telephone across the kitchen while the daughter sat in
the kitchen -- all of this because the daughter ate some cheese
from the refrigerator, and then initially lied, denying she had
eaten the cheese.
2
Neither the mother nor the father was, I believe, entitled
to a parental discipline instruction. Only the appeal of the
convicted defendant mother is before us. The father, who
received an unwarranted parental discipline instruction, was
acquitted of assault and battery, despite that he punched his
daughter in the face, yielding a fat lip. Since he was
acquitted, the erroneously given instruction to the benefit of
the father is not before us.
8
1. The Dorvil reasonableness prerequisite to parental
discipline and the three reasonableness prongs. According to
Dorvil, 472 Mass. at 12-13, as a matter of law, parental
discipline is an affirmative defense to an alleged assault and
battery upon a child. To this end, Dorvil specifically holds
that, before the affirmative defense of parental discipline may
be presented to a jury (by instruction charge) or to a judge as
trier of fact, the essential prerequisite to the use of parental
force in disciplining a child, is reasonableness. "[T]he force
used against the minor child [must be] reasonable," and such
force must be "reasonably related to the purpose of safeguarding
or promoting the welfare of the minor" (emphasis supplied). Id.
at 12. Neither of these reasonableness prerequisites is
satisfied on the evidence introduced in this case by the
defendant mother. In my opinion, because of that insufficient
evidence, the affirmative defense was not applicable, no
instruction on parental discipline was warranted, and there was,
accordingly, no reversible error. Hence, I dissent.
This case must be considered in light of the governing
Dorvil holding that the affirmative defense of parental
discipline only stands and may only be properly brought for
consideration before the jury (or judge) as the trier of fact if
there is sufficient evidence to warrant the parental discipline.
Only then, "[a]s with other affirmative defenses[] [in cases]
9
where the parental privilege defense is properly before the
trier of fact, [does] the Commonwealth [then] bear[] the burden
of disproving at least one prong of the defense beyond a
reasonable doubt" (emphasis supplied). Dorvil, 472 Mass. at 13.
Here, the evidence fails by sufficiency to meet either the first
reasonable force prong of Dorvil, or the second reasonable
relation prong. See id. at 12. To the contrary in this case,
the level of violence inflicted by the defendant mother negates
the affirmative defense that the daughter could be subjected to
violent assault and battery because of a lie about eating a
particular piece of food in the family refrigerator.3
Because such an affirmative defense has an insufficient
foundation in the evidence and was not established either in the
Commonwealth's direct case by cross-examination of the
prosecution witnesses or in the defense case (there was no
defense case), the mother never met the burden of production to
3
The court in Dorvil also considered a third prong that
would focus on the child's offense; here, stealing cheese and
lying about eating the cheese. "In applying the [parental
discipline defense] framework, each of the three prongs
constitutes a question for the trier of fact. In evaluating the
reasonableness of the force used, and of the relation of that
force to a permissible parental purpose (the first two prongs of
the test), the trier of fact may consider, among other factors,
the child's 'age,' the 'physical and mental condition of the
child,' and 'the nature of [the child's] offense'" (emphasis
supplied). Dorvil, 472 Mass. at 13, citing Restatement (Second)
of Torts § 150 (1965). Because there is a failure of proof on
the other two prongs, I will leave aside the question whether a
child eating cheese deserves to be assaulted.
10
be entitled to an affirmative defense jury instruction
concerning parental discipline for the assault and battery upon
the daughter. See generally Commonwealth v. Cabral, 443 Mass.
171, 179 (2005) (Cabral), quoting from Model Penal Code
§ 1.12(1), (2) (1985) ("[W]here a defendant asserts an
'affirmative defense,' [the defendant] takes on a burden of
production, because the Commonwealth has no burden of disproving
an affirmative defense 'unless and until there is evidence
supporting such defense'"). As with the general law concerning
affirmative defenses and jury instructions to that effect, "[i]f
the defense is 'affirmative,' [as is the defense of parental
discipline, it is only when] a defendant raises the defense to a
charge and the defense is supported by sufficient evidence,
[that] the defendant is entitled to have a jury instruction on
the defense, and the Commonwealth has the burden of disproving
the defense" (emphasis supplied). Cabral, supra at 179-180.4
Given this trial record, I believe the judge's original
position was on the mark when he stated that he was "not
convinced at this point that there's sufficient evidence to
4
I agree with the Commonwealth's position in its filing
pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247
(1982), submitted after Dorvil was decided, that "[n]o evidence
on the issue of parental discipline was adduced at trial.
Instead, the defendant relied on the defense of fabrication --
that the victim lied about what happened to her. This was the
theme in the opening . . . [and] in cross-examination."
(Emphasis supplied.)
11
raise this disciplinary defense." That was a correct assessment
of the evidence, and nothing changed once the evidence closed.
At trial, there was no affirmative defense evidence
introduced that the mother engaged in parental discipline so as
to justify the assaults and batteries. This alleged affirmative
defense was not developed in the cross-examination of the three
prosecution trial witnesses -- i.e., the daughter, the school
counselor, and the police officer. Nor was any such parental
discipline theory presented in a defense case because neither
the father nor the mother testified in defense, and the mother
did not present any other evidence concerning purportedly
justified parental discipline.
To be clear, the importance of this issue is not only
whether or not the mother was entitled to a parental discipline
affirmative defense instruction. The true reach of the issue
extends to the important obligation of a trial judge not to give
the instruction when, as here, there is no foundation in the
evidence for such a parental discipline affirmative defense
instruction. To this end the majority appears to fundamentally
misunderstand when an affirmative defense is properly raised by
the evidence. Before one can reach the question whether, as the
majority writes, "[v]iewing the trial evidence in the light most
favorable to the Commonwealth, see Commonwealth v. Latimore, 378
Mass. 671, 677-678 (1979), there was ample basis upon which
12
jurors could have concluded that the defendant's hitting the
daughter did not constitute reasonable parental discipline,"
ante at note 5, one must first ask whether the evidence
presented at trial, viewed in the light most favorable to the
defendant, was sufficient to raise the affirmative defense of
parental discipline, entitling the defendant to such an
instruction.
That is because Dorvil specifically holds that parental
discipline is an affirmative defense. Dorvil, 472 Mass. at 13.
Thus, to be entitled to a parental discipline affirmative
defense instruction, the evidence must sufficiently raise both
the first reasonable force prong of Dorvil, and the second
reasonable relation prong.
In this respect whether the evidence sufficiently raises
the affirmative defense of parental discipline is similar in
many ways to whether and when a defendant is entitled to a jury
instruction on the affirmative defense of self-defense (and the
use of deadly force in self-defense). See Commonwealth v. Toon,
55 Mass. App. Ct. 642, 644-645 (2002) ("Whether an allegedly
erroneous instruction on self-defense [and the use of excessive
force in self-defense] is prejudicial [or creates a substantial
risk of a miscarriage of justice] necessarily involves examining
first whether self-defense was raised sufficiently. If not, the
defendant received more than he was entitled to . . . [because
13
such an instruction is warranted only if] the evidence, together
with the reasonable inferences, raises a reasonable doubt as to
each of the predicates for the use of deadly force in self-
defense"). See also Commonwealth v. Harrington, 379 Mass. 446,
450 (1980) (citation omitted) ("A defendant is [only] entitled
to have the jury at his trial instructed on the law relating to
self-defense if the evidence, viewed in its light most favorable
to him, is sufficient to raise the issue. There must be
evidence warranting at least a reasonable doubt that the
defendant: [1] had reasonable ground to believe and actually
did believe that he was in imminent danger of death or serious
bodily harm, from which he could save himself only by using
deadly force, [2] had availed himself of all proper means to
avoid physical combat before resorting to the use of deadly
force, and [3] used no more force than was reasonably necessary
in all the circumstances of the case").5
5
It is interesting to compare the facts in the present case
to the facts of Dorvil. First, in Dorvil, both the defendant
father and the child's mother testified at trial. Dorvil, 472
Mass. 4-5. Not so here. Second, in Dorvil, the defendant and
the child's mother testified at trial "that [the defendant]
administered the spanking because the child disobeyed [the
defendant's] direction to go to her mother, and continued
playing on the sidewalk near the street." Id. at 13. Not so
here. Finally, the factual setting in Dorvil, a young child
running around near a bus terminal on a sidewalk close to the
street raises safety concerns tied to the child's conduct. Id.
at 5, 13. Not so here.
14
Rather than addressing the question whether there was
sufficient affirmative defense evidence introduced consistent
with the Dorvil prongs and warranting a parental discipline
affirmative defense instruction justifying the assault and
battery, the majority summarily concludes that "[t]he evidence
supporting an affirmative defense need not come from a defense
witness," ante at note 12, and relies on snippets to suggest
(erroneously I would say) that the record has evidence of
persistent lying. First, I do not disagree that an affirmative
defense of parental discipline can be developed in the cross-
examination of prosecution trial witnesses. See ante at note 9.
But here, it was not. And I do not think the snapshot of
testimony from the daughter was sufficient to properly put this
affirmative defense of parental discipline by instruction before
the jury, as trier of fact.
2. The majority in loco parentis pronouncements.
Furthermore, given that Dorvil, 472 Mass. at 12, makes perfectly
clear that it encompasses a "parent or guardian," I cannot
follow the majority's attachment to the twenty-five year old
Commonwealth v. O'Connor, 407 Mass. 663, 668 (1990) (O'Connor),
and its in loco parentis analysis which, in turn, is tied to
financial support. Given the empty trial evidence on this
important affirmative defense, I would not (as does the
majority) reach out to address in the abstract the parameters of
15
parental discipline instructions, with the majority focus on an
in loco parentis theory.
Nor do I think O'Connor provides a springboard to the
rights and obligations of parents within the wake of Dorvil.
Further, the "domestic fireside" warmth of the century-old case
of Mulhern v. McDavitt, 16 Gray 404, 406 (1860), on which the
majority relies in its in loco parentis analysis, is not where
the world of family is today. That arcane in loco parentis
analysis does not fit modern life models. In effect, the
majority harkens back to 1860 ancient law, notwithstanding an
evidentiary void in this 2013 case. I decline to follow that
path. And, more significantly, the 2015 Dorvil decision
expressly encompasses parents and guardians.6 So the majority's
focus on in loco parentis is an exploration with no trial record
path related to modern decisional law.
In my humble view, given the wholly inadequate trial
record, this is not the case in which to move into this fraught
area of child discipline. Furthermore, the nonexistence of any
trial evidence leaves me with little assurance that this court
should be making pronouncements in the abstract on the arcane
doctrine of in loco parentis, in a case where the affirmative
defense is not justified in the first place.
6
See, e.g., the editorial in the July 20, 2015, issue of
the Massachusetts Lawyers Weekly that fully catches that Dorvil
applies to parents and guardians.
16
3. The majority failure to consider the insufficiency of
the evidence. Finally, I do not accept, and dissent from, the
part of the majority analysis that concludes that "[w]hile there
is considerable force to the Commonwealth's position that the
defendant's behavior should not be viewed as reasonable parental
discipline, her actions were not so out of bounds as to exclude
such a defense from the jury's consideration." Ante at . To
the contrary, this beating by a violent slap across the face,
delivered with such force that it caused the daughter's ear to
bleed, the throwing of a cellular telephone as a projectile, and
the pursuit of the daughter into the bedroom to pull her hair
were all acts arising out of anger. Such volatile anger-driven
acts did not in any way reflect reasonable use of force or
proportionality to the child's "major offense" of eating cheese
stored in the refrigerator and then denying/lying about that.
Hence, no affirmative defense instruction on parental discipline
was warranted under Dorvil.
In sum, respectfully, I see the majority as not resolving
the fundamental question whether the evidence sufficed for the
mother to receive the benefit of this affirmative defense and a
parental discipline jury instruction. Furthermore, I am
troubled that a conviction is being reversed, with a lot of
17
writing about in loco parentis and the parental discipline
affirmative defense, without any supporting trial evidence.7
For all of these reasons, I dissent from the majority's
decision reversing the conviction of assault and battery upon
the daughter.
7
After summarily concluding that there was sufficient
evidence introduced at trial to warrant a parental discipline
instruction, the majority ultimately decides that reversal of
the conviction of the mother is required because of an
"unfairness to the defendant," ante at , such that a new
trial is warranted. According to the majority, this unfairness
inured when the judge, having changed his position, gave the
father the unwarranted benefit of a parental discipline
instruction while expressly telling the jury not to consider
whether the mother may have engaged in parental discipline.
But, if the mother had no reasonable tenable basis for the
parental discipline instruction anyway, there was no error in
depriving her of the instruction. Where one defendant gets a
requested affirmative defense instruction (not warranted by the
evidence) and the codefendant does not get the instruction (even
though the instruction as to the other codefendant is also not
warranted by the evidence) that does not lead to reversal for
the defendant correctly denied a jury instruction on an
affirmative defense. The abstract analysis of in loco parentis
in the majority as to stepparents becomes a very small part of a
very big discussion of other parental discipline legal issues,
with which I do not agree.