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10-P-666                                           Appeals Court

              COMMONWEALTH   vs.   JASON STRICKLAND.


                          No. 10-P-666.

      Hampden.     September 8, 2014. - January 23, 2015.

           Present:   Berry, Kafker, & Maldonado, JJ.


Assault and Battery. Assault and Battery by Means of a
     Dangerous Weapon. Evidence, Medical record, Relevancy and
     materiality, Third-party culprit, Impeachment of
     credibility, Prior misconduct, Expert opinion. Minor,
     Medical treatment. Witness, Impeachment, Expert.
     Practice, Criminal, Assistance of counsel. Dangerous
     Weapon.



     Indictments found and returned in the Superior Court
Department on July 24, 2006.

     The cases were tried before Judd J. Carhart, J., and a
motion for a new trial was considered by Bertha D. Josephson.


     Michael J. Fellows & Myles D. Jacobson for the defendant.
     Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.


    KAFKER, J.   When eleven year old Haleigh Poutre arrived at

the hospital on September 11, 2005, she was unconscious and

barely breathing, her pale, emaciated body was covered in
                                                                  2


bruises and huge burns, and the back of her head was swollen,

lacerated, and bleeding.   Her horrible injuries had been

inflicted in her own home, where she lived with her mother Holli

Strickland1 and stepfather, the defendant.   After a trial in

Superior Court, a jury convicted the defendant of (1) wantonly

or recklessly permitting, or wantonly or recklessly permitting

another to commit an assault and battery causing, substantial

bodily injury to Haleigh on or about September 10, 2005 (head

injury); (2) wantonly or recklessly permitting, or wantonly or

recklessly permitting another to commit an assault and battery

causing, bodily injury to Haleigh on or before September 11,

2005 (multiple injuries of various ages);2 (3) assault and

battery by means of a dangerous weapon (bat); (4) assault and

battery by means of a dangerous weapon (wand or stick or tube);

and (5) assault and battery.   The jury acquitted the defendant

of one count of assault and battery by means of a dangerous

weapon (shod foot).

     1
       After being released on bail, Holli Strickland was found
dead along with her adoptive mother, as a result of an apparent
murder-suicide.
     2
       In each of the first two counts, the defendant was charged
under both theories of G. L. c. 265, § 13J(b), namely, (1)
assault and battery upon a child causing substantial bodily
injury (count 1) or bodily injury (count 2), and (2) having care
and custody of a child and wantonly or recklessly permitting, or
wantonly or recklessly permitting another to commit an assault
and battery causing, substantial bodily injury (count 1) or
bodily injury (count 2). The jury's verdicts rested only on the
second theory.
                                                                   3


    On appeal from his convictions and from the denial of his

new trial motion, the defendant argues that (1) the trial judge

improperly excluded medical evidence from Haleigh's pediatrician

and nurse with respect to the second, multiple injury count; (2)

the wand that the defendant used to hit Haleigh was not a

dangerous weapon; (3) the head injury conviction may have been

based on a theory not supported in the evidence; (4) the motion

for new trial should have been allowed where counsel was

ineffective (a) for failing to impeach a witness, and (b) for

failing to obtain an expert witness on a psychiatric condition

known as Munchausen syndrome by proxy; and (5) an evidentiary

hearing on the new trial motion was required.   We affirm the

convictions and the order denying the defendant's motion for a

new trial.

    Background.   We recite the facts the jury could have found,

reserving some facts for later discussion.

    On Sunday, September 11, 2005, at about 2:45 P.M., eleven

year old Haleigh was brought to the emergency room at Noble

Hospital by her mother, Holli Strickland (Holli), and Holli's

uncle, Brian Young.   Haleigh was unconscious and unresponsive,

her vital signs were very poor, and she was barely breathing.

The back of her head was bleeding and so badly damaged that

medical personnel described it as "boggy," i.e., swollen due to

blood filling the scalp tissue.   "Huge" burns were observed on
                                                                    4


her chest, and her face was bloody, bruised, and "distorted."      A

"CT scan" of her brain was taken, as were photographs of her

body.

     Haleigh was transferred to the pediatric intensive care

unit at Baystate Medical Center at about 5 P.M. that day.    The

admitting nurse testified that Haleigh's body core temperature

was just eighty-one degrees, her pupils were "fixed," and she

was "posturing" her limbs, signaling a traumatic brain injury.

A second CT scan was performed at 7:30 P.M., and an "MRI" scan

was completed the next morning.   Haleigh's body was covered with

other injuries of varying age from her head to her toes.

     Dr. Richard Hicks reviewed Haleigh's scans, and opined at

trial that Haleigh had suffered severe injuries to the brain, of

the type "ordinarily . . . associated with high velocity motor

vehicle accidents."   Dr. Hicks explained that such injuries

would have rendered Haleigh unconscious immediately and that

based on the MRI and CT scans, he placed the brain injuries as

having occurred at about 4 P.M. on Saturday, September 10, 2005,

the day before Haleigh was first brought to the hospital.    Dr.

Hicks opined that a simple fall down the stairs would not have

the force necessary to cause these injuries in a child.

     Another trial expert, Dr. Christine Barron, corroborated

Dr. Hicks's testimony, stating that for the injuries to

Haleigh's brain to have resulted from a staircase fall, it
                                                                     5


"would have to be a fall down the stairs with significant

external forces, such as a [strong] push or a kick of the child

at the top of the stairs."   Dr. Barron estimated that Haleigh

had sustained the severe head injuries some twelve to twenty-

four hours before the Noble Hospital staff took the photographs.

Dr. Barron also proffered her opinion as to the nature and

manner of infliction of Haleigh's multiple other injuries.3    She

stated that the red bruises on the child's body were consistent

with blunt force trauma, also inflicted twelve to twenty-four

hours before the pictures were taken.   Dr. Barron specifically

identified two injuries that in her opinion could not be self-

inflicted:   a linear scar that ran from Haleigh's right ribcage,

across her torso, and behind her hip; and a dry contact burn to

her chest.   Dr. Barron further testified that she could not give

an opinion that any of the injuries were self-inflicted.     Dr.

Barron opined that the multiple injuries and scars occurred at

different times, some having occurred within the twenty-four


     3
       Dr. Barron's description of Haleigh's multiple other
injuries covers almost one hundred pages of transcript. Dr.
Barron identified multiple lacerations, linear abrasions, scars,
and bruises on Haleigh's trunk and legs. Haleigh had cigarette
burns on her left foot and left upper arm. Dr. Barron opined
that the burns were not consistent with the appearance of
accidental cigarette burns. Dr. Barron also identified "D"-
shaped injuries, consistent with Haleigh having been struck with
a hard, solid object. Haleigh also had a large, curvilinear
"C"-shaped laceration and identically shaped bruising on her
buttocks. Dr. Barron also testified that Haleigh had restraint
injuries on her leg and left wrist.
                                                                     6


hours preceding her hospitalization, while others were at least

one week old; she could not date some injuries.

    At the time of the injuries, Haleigh was living in the

family home with her stepfather, who is the defendant; her aunt

and adoptive mother, Holli; Haleigh's sister, who was nine years

old in 2005; and Haleigh's brother, who was two years old in

2005.   After being alerted to Haleigh's injuries, the police

searched her home and noticed holes, indentations, and small

brown blood stains on the walls of the stairway leading to the

basement.    Blood stains were also located on three walls of the

basement playroom area, as well as in the first-floor bathroom.

The blood stains on the walls of the basement stairway and in

the bathroom were swabbed, tested, and determined to match

Haleigh's blood.

    In the master bedroom, a "Leatherman" tool with the

brownish material on it and handcuffs were seized from the night

table next to the bed.    Tests on the Leatherman tool indicated a

mixture of blood was present, to which Haleigh was a potential

contributor.   Handcuffs were also found in a "My Little Kitty"

backpack in the family van, and a belt was recovered from the

floor of the van.    An aluminum bat with Haleigh's name on it was

found in a basement closet.    Work tools were strewn throughout

the house.
                                                                     7


     At trial, Haleigh's sister was twelve.    She testified that

she had seen Holli and the defendant hit Haleigh with their

hands, a belt, and a baseball bat, and that she saw scabs and

bruises all over Haleigh, with whom she shared a bedroom.

Haleigh's sister also recounted how Holli and the defendant

would push Haleigh down the basement stairs to punish her and

how the defendant began pushing Haleigh down the stairs shortly

after he moved into the home, around 2002.

     Haleigh's sister testified that after her soccer game on

Saturday, September 10, 2005, she saw the defendant push Haleigh

down the basement stairs and that this time Haleigh did not

"wake up."   Haleigh's sister heard the defendant order Haleigh

to get up and then saw both Holli and the defendant shaking

Haleigh to awaken her, but she remained on her back at the

bottom of the stairs.    Haleigh's sister saw the defendant carry

Haleigh upstairs and place her in the bathtub in the first-floor

bathroom.4   Haleigh's sister added that a little later she saw

the defendant carry Haleigh up to bed.    Haleigh was not awake.

     That evening Holli told a friend, a certified home health

aide, that Haleigh was ill and that she had stayed home with

Haleigh while the defendant went to the mall with Haleigh's


     4
       This testimony   was corroborated by forensic evidence
indicating that blood   found in and around the bathtub and on the
walls of the basement   stairway matched Haleigh's
deoxyribonucleic acid   (DNA) profile.
                                                                        8


sister and brother.       Holli declined the home health aide's offer

to come over and take a look at Haleigh.5      The next morning,

Holli again spoke to her friend and told her that Haleigh was

still sleeping and then called a pediatrician at about 10:30

A.M.       The doctor on call who returned the message was not

Haleigh's regular pediatrician.       He testified that Holli

reported that Haleigh had the stomach flu and had vomited twice;

he offered to see Haleigh in one hour, but Holli declined the

appointment.

       The family had another soccer game to attend that

afternoon, and because Haleigh was still "asleep," Holli asked

Alicia Weiss, her neighbor and close friend, to watch Haleigh.

Weiss arrived after noon, and the family left at about 12:30

P.M., leaving Weiss alone with Haleigh.       Weiss testified that

she checked on Haleigh three times.       She saw some foam on

Haleigh's mouth and testified that Haleigh neither moved nor

woke up.       The family returned at about 2:30 P.M., accompanied by

Holli's uncle, Brian Young.       At Holli's urging, Young checked on

Haleigh and immediately realized something was very wrong; he

carried her downstairs and brought her to Noble Hospital.

       At trial, the Commonwealth introduced other eyewitness

accounts of the defendant abusing Haleigh, including incidents


       5
       The defendant testified that he came home at approximately
9 P.M. and saw Haleigh sleeping at approximately 10:30 P.M.
                                                                    9


in which the defendant (1) struck Haleigh in the hand with a

plastic tubular wand; (2) aided Holli in interrogating Haleigh

as Holli beat her lower legs with a bat; (3) dragged Haleigh

into the house by her ear, causing her to cry; (4) together with

Holli took Haleigh into the bathroom, after which a muffled cry

was heard and Haleigh emerged with a bloody lip; and (5) struck

her in the head with his hand.6

     The new trial motion judge (who was not the trial judge)

accurately summarized the main elements of the defense at trial:

          "The defense called a treating health professional,
     . . . Pamela Krzyzek, who testified that when she came to
     the family's home, the defendant was not present because he
     was at work.[7] [Krzyzek testified that Haleigh told her she
     heard voices telling her to hurt herself and that she had
     hit her knees with a hammer.] She also testified that the
     defendant did not report Haleigh's injuries to her, but
     that it was always Holli who did. The defense also called
     Stephanie Trent Adams ('Adams'), whose children had
     attended Holli's daycare . . . . Adams testified that the
     defendant worked during the day . . . . Adams also
     recalled that she had seen Haleigh 'stair-surfing,'
     punching herself, and hitting her head against the wall of
     a cubby.

          "Defense counsel called two expert witnesses. Dr.
     Jonathan Arden testified that the kind of brain injury

     6
       The primary sources of these other accounts of abuse were
Weiss and Angela Harris, a friend of Haleigh's sister.
     7
       Krzyzek was a clinical case coordinator working for an
organization that provided voluntary assistance to families
designed to stabilize a child's behavior transitioning from a
hospital stay to home. In this case, Krzyzek received a
referral to assist with Haleigh's transition to home after a
stay at a hospital for an eating disorder. She saw Haleigh in
the home approximately once per week from July, 2004, to
September 7, 2005.
                                                                  10


    Haleigh suffered did not require the equivalent of a high
    speed car crash in order to cause it. [Arden gave an
    opinion that the head injury could have occurred between
    two or three hours and twenty-four hours before the 4 P.M.
    CT scan was taken on Sunday.] The other expert witness,
    Dr. Brian Wraxall, testified that he had examined the DNA
    taken from the Strickland home, and that [the defendant]
    was excluded as a potential source of that DNA.

         "The defendant took the stand and denied any
    wrongdoing. He testified that he believed Holli when she
    told him that Haleigh was injuring herself and was
    receiving treatment for this condition. . . . Only Holli
    would take Haleigh to these appointments and would speak
    with the medical providers. The defendant learned of
    Haleigh's injuries through Holli."

    The defense also attempted to discredit both Weiss and

Haleigh's sister with prior inconsistent statements.   For

example, Haleigh's sister did not reveal that she had seen the

defendant push Haleigh down the stairs on Saturday, September

10, until more than two years after the incident.   In the

interviews immediately after Haleigh was hospitalized, Haleigh's

sister had claimed that she saw Haleigh hit her head on the

floor in the basement while performing a back flip on Friday

night and that as a result Haleigh briefly lost consciousness.

For her part, Weiss initially told police that Holli was a good

mother and volunteered that "[i]t's not like Holli would ever

throw her kids down the stairs or, like, hit them," but Weiss

testified at trial that she had "left out certain things" in an

effort to "protect[] [her] best friend."
                                                                   11


     Discussion.   1.   Excluded evidence.   a.   Exclusion of

medical provider evidence as to the second count, involving

multiple injuries that occurred on or before September 11, 2005.

     On appeal, the defendant challenges the exclusion of

testimony and records from Haleigh's pediatrician, Dr. Rukmini

Kenia, and Dr. Kenia's nurse practitioner, Susan Malloy,8 that

the defendant claims established his defense to the count

charging multiple injuries inflicted on or before September 11,

2005.9   This argument is not directed at count one, the head

injury, as Dr. Kenia and Malloy never treated Haleigh for the

head injury, and the defense did not pursue a theory at trial

that the head injury was the product of self-abuse.      The records

reflect that Haleigh was regularly seen in Dr. Kenia's office

from at least 2001 until September 2, 2005, eight days before

the injury to her head, and that she was sometimes treated by

Dr. Kenia, but more often by Malloy.

     The defense sought to introduce the testimony and records

to establish that Dr. Kenia and Malloy saw Haleigh on numerous

occasions, observed bruises and burns on her, and were treating


     8
       Malloy had a master's degree in nursing, in addition to
being a registered nurse and a certified pediatric nurse
practitioner, and in accordance with G. L. c. 112, § 80B, she
was licensed to make clinical decisions regarding care, the
prescription of medications, therapeutics, and treatment.
     9
       The medical records were marked for identification at
trial and are part of the record appendix.
                                                                   12


her for self-abuse.    Defense counsel wanted to conclude his

questioning of Dr. Kenia and Malloy by asking, "on any occasion,

did you consider the possibility that . . . any of her injuries

were . . . caused by another?"    Defense counsel explained that

he was "trying to corroborate [the defendant's] belief" that

"[the defendant] had no reason to protect [Haleigh] because he

thought it was self-abuse, so did the doctors, so did everybody

else."    Defense counsel further explained that he sought to

introduce the testimony regarding Malloy's determination

regarding self-abuse, not for "the truth of the matter; [but

because] it goes to [Malloy's] state of mind.   It is her

determination which happens to corroborate the determination

that [the defendant] testified to.   On that basis, I would like

to offer that."10


     10
       It is difficult to discern which particular visits and
records were of interest to the defense. On appeal the defense
references various visits and records, most of which involve
Malloy but not Dr. Kenia. These include an April 12, 2004,
record observing, "Pt. states she did hit face last pm
intentionally because she was frustrated"; a June 18, 2004,
record which reads, "pt admits to self-inflicting injury [with]
spoons, forks [and] knives in her room"; a July 7, 2004, report
where "pt states will write in book daily when feels frustrated
instead of hurting self"; and a report from what appears to be
November, 2004, involving "stair surfing" and a fall down cement
steps. The defendant also references in his brief an April 12,
2005, visit during which Holli reported that Haleigh had been
limping since they returned from a hotel stay where Haleigh
surfed on cement stairs. At trial, several other visits with
Malloy and Dr. Kenia were referenced. These include a January
10, 2005, report where Haleigh "admit[ted] to hitting self
[with] hammer"; an August 5, 2005, report reflecting a variety
                                                                    13


    The trial judge would not admit the medical provider

evidence to corroborate the defendant's own beliefs.    The judge

emphasized that the defendant never spoke to Dr. Kenia or

Malloy.    The judge further concluded that the evidence was being

offered for the impermissible purpose of corroborating Holli's

and Haleigh's hearsay statements, as he determined "no one could

tell" from the bruises alone whether a child had been hit by

another, and the medical providers' testimony would necessarily

be based on these statements.

    A defendant in a criminal case has a constitutional right

to present evidence, and that right extends to proof of facts

that make a defendant's or another witness's testimony more

credible.   See Commonwealth v. Emence, 47 Mass. App. Ct. 299,

301 (1999).   The admission of such corroborative evidence turns

on its relevancy, and rests in the discretion of the trial

judge.    See Commonwealth v. Galvin, 310 Mass. 733, 747 (1942)

("[A] trial judge may in his discretion allow a witness to

testify to facts and circumstances corroborative of his

testimony"); Commonwealth v. DeBrosky, 363 Mass. 718, 725 (1973)

(hotel registration records admissible in judge's discretion to

corroborate testimony of witness that group was registered in

motel); Commonwealth v. Emence, 47 Mass. App. Ct. at 301-302



of bruises and wounds diagnosed as self-injury; and a similar
July, 2005, report.
                                                                  14


("The very existence of information that, as a matter of common

sense and experience, supports the credibility of a witness

prompts the conclusion that, so long as it is not remote, it

ought to be admitted. . . .   It is not necessary that the

evidence in question bear directly on the issue or be conclusive

of it").

    The excluded evidence here involves the novel use of

medical testimony and reports to buttress the defendant's

credibility on the wanton or reckless mens rea element of the

offense.   The essential argument is that the excluded evidence

from the medical providers would have corroborated the

defendant's testimony (and therefore his defense) that he

reasonably believed Holli when she told him that Haleigh's

injuries resulted from self-abuse, and that he reasonably

concluded that Haleigh was being appropriately treated by

medical professionals, and that he therefore did not need to

take additional actions to protect her.   According to the

defendant, the admission of the challenged testimony, namely,

that the providers were indeed treating her injuries on numerous

occasions and diagnosing them as self-inflicted and as not

requiring further medical treatment or other action, would have

corroborated the inferences the defendant drew to the same

effect.
                                                                  15


    We conclude that this evidence was sufficiently relevant to

the mens rea element of the offense and corroborative to be

admissible in the judge's discretion.   See Commonwealth v.

Emence, 47 Mass. App. Ct. at 301-302.   See also Commonwealth v.

Twitchell, 416 Mass. 114, 126-130 (1993) (defendants were

entitled to present affirmative defense grounded on belief that

their conduct was not violation of law, based on reliance on

Christian Science church publication on legal obligations of

Christian Scientists, even if publication was later determined

to be wrong, and publication should have been put before jury).

"However, we need not decide whether the judge's ruling

excluding the evidence amounted to an abuse of discretion

because its exclusion did not prejudice the defendant's case."

Commonwealth v. Smith, 460 Mass. 385, 398 (2011).   See

Commonwealth v. Aguiar, 78 Mass. App. Ct. 193, 205-206 (2010)

("Under the prejudicial error standard, the reviewing court must

be able to say with fair assurance that the error did not

influence the jury, or had but very slight effect").

    Most importantly, the multiple eyewitness accounts of the

defendant's own brutality, and his knowledge and acceptance of

Holli's brutality, overwhelmingly support the jury's

determination that he was not merely a duped bystander.   For

example, in addition to Haleigh's sister's testimony that she

saw the defendant and Holli repeatedly push Haleigh down the
                                                                    16


basement stairs, Weiss testified that the defendant was present

when she saw Holli hit Haleigh in the lower leg with an aluminum

bat with Haleigh's name on it.    Before Haleigh could answer,

Holli struck her with the bat and Haleigh cried and fell to the

floor.    Holli made her get back up, and the defendant and Holli

repeated the interrogation and assault.    Holli explained to

Weiss, while the defendant was still present, that she was using

Haleigh's bat because it would look like Haleigh was hitting

herself.    Weiss also recounted the defendant striking the back

of Haleigh's hands with a "tubular wand" made out of plastic

that was about two feet long.    Other brutal acts by the

defendant were described by additional witnesses.

    Important differences between the medical providers' and

the defendant's access to Haleigh also detract from the excluded

evidence's probative value.     Unlike the medical providers, the

defendant lived in the home and saw Haleigh on a daily basis.

His observations, unlike theirs, were direct and

contemporaneous, and not susceptible to distortion or

obscuration by delayed reporting.     Trial evidence demonstrated

that Holli kept significant control over the timing and

circumstances in which Haleigh would be seen by her health

providers.    The jury could infer that Holli took steps to

mislead the physicians, but did not conceal her abuse in the

home.    For example, Holli told Weiss, "If I kick an existing
                                                                   17


bruise, there is no new evidence."   Similarly Holli's calls to

the home health provider and the pediatrician about Haleigh

being asleep with the flu, when Haleigh had just suffered a

traumatic head injury, and Holli's refusals of their offers to

see Haleigh, seem calculated to mislead the medical providers.

Additionally, the medical records are not devoid of suspicions

of abuse.   Notations in the medical records show at least two

reports of suspected abuse were filed in January, 2005, and May,

2005, in accordance with G. L. c. 119, § 51A.

     We also take into consideration the limited purpose for

which the defendant offered the excluded evidence, namely, to

merely corroborate his belief that Haleigh was being

appropriately treated by her medical providers.11   As such, the

value of its admission was limited to bolstering that

proposition, and it was not offered to establish its truth, a

point counsel recognized.   See Commonwealth v. DeBrosky, 363

Mass. at 725; Commonwealth v. Williams, 30 Mass. App. Ct. 543,

548 (1991) (not unreasonable for counsel to elicit otherwise

inadmissible testimony of victim's state of mind where it could

be used to corroborate defendant's insanity defense).   Given

this limited purpose, any prejudice that accrued from its

exclusion was similarly minimized.

     11
       Corroborative evidence is defined in Black's Law
Dictionary 414 (4th ed. 1968) as "[e]vidence supplementary to
that already given and tending to strengthen or confirm it."
                                                                  18


     Here the probative value of the medical providers' proposed

testimony in terms of corroborating the defendant's own beliefs

was particularly limited because the defendant never spoke to

the medical providers despite Haleigh's numerous injuries, their

severity and suspiciousness, and his superior knowledge of what

was occurring in the home.    A jury would undoubtedly question

why any parent would not speak to a doctor when his child was

continually suffering such horrible injuries.   When the

defendant's failure to speak to the medical providers in these

circumstances is combined with multiple eyewitness accounts

describing his own abuse of Haleigh and his presence when Holli

abused Haleigh, any corroborative value of the medical providers

is virtually extinguished.

     In addition, the corroborative testimony was largely

cumulative of other proof that informed the jury of incidents of

self-abuse reported by Haleigh and treatment and monitoring of

Haleigh for these injuries.   In particular Krzyzek, the clinical

case coordinator, testified that she visited the home weekly

during the year preceding the last incident and observed bruises

on Haleigh and heard Haleigh's explanations for the injuries.12

Krzyzek explained that she stayed in regular communication with

     12
       Krzyzek testified that she saw bruises on Haleigh, but
was told by Haleigh that she hit herself in the knees with a
hammer, that her sister had "clocked" her in the face with a
flashlight, and that she had hurt her throat choking on a
"grinder."
                                                                   19


"Holli, Haleigh, DSS,[13] the therapist, [and] Malloy", and that

Malloy was assigned to do regular body checks on Haleigh.

Defense counsel was also able to elicit from Dr. Barron that she

had reviewed the medical records of Dr. Kenia and Malloy, and

those records showed that Malloy regularly examined Haleigh,

usually on a weekly basis, and that in July, 2005, Malloy

observed bruises and abrasions that she characterized as "self-

injury."14

     In sum, we are convinced for all of these reasons that the

exclusion of this limited evidence did not influence the jury,

or had but very slight effect.

     13
       The Department of Social Services, now known as the
Department of Children and Families (DCF).
     14
       Finally, even if the jury were inclined to credit some of
the defendant's testimony regarding his lack of knowledge of,
and participation in, the brutality, the evidence would have
been inculpatory with respect to an alternate theory of guilt.
To this point the focus has been on the objective measure of
wanton or reckless conduct, but there is a subjective measure:
"[i]f the grave danger was in fact realized by the defendant,
his subsequent voluntary act or omission which caused the harm
amounts to wanton or reckless conduct, no matter whether the
ordinary man would have realized the gravity of the danger or
not." Commonwealth v. Welansky, 316 Mass. 383, 398 (1944). See
Commonwealth v. Pugh, 462 Mass. 482, 496-497 (2012). If the
defendant truly believed Haleigh was engaging in self-injurious
behavior, a belief he argues was bolstered by the excluded
evidence, then leaving tools and other instruments all over the
house with which Haleigh could harm herself was strong proof of
wanton or reckless behavior. See Commonwealth v. Hendricks, 452
Mass. 97, 103-105 (2008) (engaging in high-speed nighttime car
chase with police while three year old was in back seat
constituted wanton or reckless behavior). As even Krzyzek
testified, if she had seen tools out like a hammer or pliers,
she would have considered them unsafe for Haleigh.
                                                                   20


    b.   Additional arguments against the exclusion of the

medical provider evidence.    The defendant also raises several

additional arguments regarding the medical provider evidence for

the first time on appeal.    We review for a substantial risk of a

miscarriage of justice.   See Commonwealth v. Ivy, 55 Mass. App.

Ct. 851, 859 (2002).

    The defendant contends that the opinion testimony should

have been offered for its truth to prove what he calls a "third

party culprit" theory because it shows that Haleigh, rather than

the defendant, was responsible for her injuries.    This

represents a significant shift from his position at trial where

defense counsel emphasized that he was not offering the medical

evidence for its truth, but rather to corroborate that the

defendant, like the doctors, was "fooled" by Holli.    Blaming

Haleigh for all of these horrible injuries was not a viable

trial strategy, as trial counsel undoubtedly correctly

understood and carefully avoided.    His defense was crafted to

focus on the reasonableness of the defendant's beliefs and

assumptions regarding the abuse, not whether Haleigh was

actually inflicting all the injuries on herself.

    Regardless, we consider this third-party culprit evidence

irrelevant to count one, as neither Dr. Kenia nor Malloy treated

Haleigh's head injury and therefore could offer no direct

testimony on whether it was self-inflicted.    Moreover, the
                                                                  21


thrust of the defense at trial to count one was never self-abuse

but rather that the injury was inflicted by someone other than

the defendant.   Thus, exclusion of the medical provider

testimony on self-abuse certainly did not create a substantial

risk of a miscarriage of justice on this count.

    We also discern no such risk on count two, involving

multiple injuries.   The record makes clear that many of the

injuries observed on Haleigh's body were either not seen by the

providers or not referenced in their records.     The omitted

injuries included two wounds Barron specifically identified as

not having been self-inflicted, namely, the injury consistent

with being whipped by a wire and the multiple burns to Haleigh's

chest that were about one week old.   Other omitted injuries

included the curvilinear or "C"-shaped laceration and bruising

on her buttocks consistent with blunt force trauma using a thin

metal object; injuries consistent with blunt force trauma on

multiple occasions using a hard object with a "D" shape

(inferably, from whippings with a belt and buckle); and parallel

linear restraint injuries on her leg and left hand.     The

defendant provides no explanation of how the excluded evidence

suggests that any of these injuries could reflect self-abuse.

Finally, as explained above, there was ample evidence of self-
                                                                    22


abuse before the jury, which the jury considered in their

verdict.15

     The defendant also claims that his inability to impeach

Barron with the medical providers' diagnosis of self-abuse

created a substantial risk of a miscarriage of justice.     We

disagree.    Barron was confronted with at least one instance of

the medical providers' diagnosis of self-abuse and acknowledged

the diagnosis and discounted it.   Further exploration of Dr.

Kenia's and Malloy's diagnosis of particular injuries with

Barron would have opened the defense up to an expert attack on

the competence of the medical providers' care of Haleigh.     See

Commonwealth v. Wall, 469 Mass. 652, 663-665 (2014) (failure to

impeach witness is generally not reversible error).

     Finally, the defendant argues that Holli's and Haleigh's

statements were admissible because they were made for the

"purpose of medical diagnosis or treatment."    Bouchie v. Murray,

376 Mass. 524, 529 (1978).    See Commonwealth v. Irene, 462 Mass.

600, 611-615, cert. denied, 133 S. Ct. 487 (2012) (discussing

standards for admitting medical records and opinions).     See also

Commonwealth v. Arana, 453 Mass. 214, 231 (2009).     Even if we


     15
       Finally, evidence of Haleigh's self-abuse, and the
defendant's knowledge of it, would be inculpatory on the
alternative theory that he was wanton or reckless in leaving
tools around the house; thus, as discussed above, its exclusion
could not create a substantial risk of a miscarriage of justice
on this ground as well.
                                                                     23


were to assume, without deciding, that some of Holli's or

Haleigh's statements may have been admissible for this purpose,

we discern no substantial risk of a miscarriage of justice for

the reasons discussed above and because they were cumulative of

testimony given by Krzyzek, the defendant, and others.

    c.   Exclusion of Holli's statement to Weiss as alternative

third-party culprit.   The defendant argues for the first time on

appeal that he should have been permitted to elicit from Weiss

that Holli told Weiss that Haleigh's misbehavior was so severe

that Holli had to use extreme measures to discipline her.    The

defendant asserts this evidence was probative of Weiss's motive

and intent to push Haleigh down the stairs when Weiss was alone

with her on the morning of Sunday, September 11.   At trial,

however, the defendant sought to admit this statement on the

ground that it was relevant to show Holli's and the defendant's

states of mind and to show Weiss's bias.   Because the issue has

not been preserved, we review the error, if any, to determine if

it created a substantial risk of a miscarriage of justice.     See

Commonwealth v. Rivera, 425 Mass. 633, 636-637 (1997).

    There is no such risk where evidence supporting Weiss's

testimony that Haleigh never woke up while she was with her on

September 11, was overwhelming, to say nothing of the virtually

nonexistent possibility that Haleigh rose from her "sick" bed

and engaged in behavior that was so "severe" that she had to be
                                                                   24


kicked or pushed down the stairs to be controlled.    Even the

defendant testified that Haleigh began to feel ill on Saturday,

September 10, and that he did not see her walking around at any

time after he left for the mall on Saturday night.

     d.   Exclusion of Weiss's prior bad acts.   The defendant

proffered testimony from a witness who was in Weiss's daycare in

2004.   He would testify that Weiss would duct tape a "binky" in

his mouth and tell him that "if he was going to act like a baby,

she would treat him like a baby."   She would also "tie [his

older brother] in a chair and lead [the chair] across the room."

According to the defendant the evidence was probative of Weiss's

motive and intent to injure Haleigh, as part of a third-party

culprit defense.   We agree with the Commonwealth that the judge

did not abuse his substantial discretion in excluding these

incidents where they involved different children and were

markedly different in terms of the degree of force employed.

See Commonwealth v. Hunter, 426 Mass. 715, 716-717 (1998);

Commonwealth v. Bregoli, 431 Mass. 265, 274 (2000).

     2.   Wand as a dangerous weapon.   There is no merit to the

defendant's contention that the evidence was insufficient to

establish that the plastic tube or wand the defendant used to

strike Haleigh's hands was dangerous.   "The essential question,

when[, as here,] an object which is not dangerous per se is

alleged to be a dangerous weapon, is whether the object, as used
                                                                   25


by the defendant, is capable of producing serious bodily harm."

Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984).     The

evidence that the two-foot-long wand was used to repeatedly

strike Haleigh on the back of the hands and caused her to scream

and cry so loudly that Weiss, on another floor of the house,

heard her and came to her aid was sufficient to permit the jury

to conclude that it was being used in a manner capable of

producing serious bodily injury.   See, e.g., Commonwealth v.

Appleby, 380 Mass. 296, 303-305 (1980) (riding crop);

Commonwealth v. Cruz, 430 Mass. 182, 194-195 (1999) (duct tape);

Commonwealth v. Barrett, 12 Mass. App. Ct. 1001, 1002 (1981)

(aerosol spray can); Commonwealth v. Rossi, 19 Mass. App. Ct.

257, 261 (1985) (large ring worn on hand); Commonwealth v.

Marrero, 19 Mass. App. Ct. at 922-923 (boots); Commonwealth v.

McIntosh, 56 Mass. App. Ct. 827, 830-831 (2002) (windowpane).

    3.   Sufficiency of the evidence to sustain the conviction

related to the brain injury.   On appeal, the defendant makes a

somewhat confusing argument that the evidence was insufficient

to support his conviction on count one.    We discern no merit to

this argument.   The trial evidence sufficiently establishes the

defendant's wanton or reckless conduct.   Haleigh's sister had

seen both the defendant and Holli kick Haleigh down the basement

stairs on numerous occasions and described the defendant as

pushing Haleigh down the stairs on September 10.   Weiss also
                                                                  26


observed Holli beat Haleigh, with the defendant sometimes

participating and other times observing without objection.

Thus, the evidence demonstrated that he was participating in the

abuse of Haleigh, including pushing her down the stairs, or was

knowledgeable that it was occurring and was permitting it to

happen.   See Commonwealth v. Torres, 442 Mass. 554, 568 (2004),

quoting from G. L. c. 265, § 13J(b) ("Whatever forms of conduct

might come within the term permit[ting]" another to commit

assault and battery, encouraging such batteries by hitting the

children himself, and then turning them over to Fappiano for

further abuse, would surely come within the concept of

'permit[ting]' such a battery").16   Given the extent of this

abuse of Haleigh by both the defendant and Holli, including

their punishing of Haleigh by pushing her down the stairs, the

jury were warranted in finding the defendant wanton or reckless

even if he was not present and it was Holli who threw Haleigh

down the stairs when the brain injuries occurred.   See

Commonwealth v. Welansky, 316 Mass. 383, 387 (1944) (defendant

nightclub owner not present on night of fatal fire);

Commonwealth v. Pugh, 462 Mass. 482, 496-497 (2012);

Commonwealth v. Robinson, 74 Mass. App. Ct. 758-759 (2009).

Moreover, his conduct after the injury was wanton or reckless,

     16
       In any event, there was ample evidence to refute the
notion posited by the defendant on appeal that Haleigh alone
caused her head injury.
                                                                  27


as "a reasonable person, knowing what the defendant knew, would

have realized that there was a high likelihood that [the child]

would suffer a substantial bodily injury if she did not receive

timely medical attention."   Id. at 758.

    4.    Motion for new trial.   The defendant presses three

claims on appeal that he argued in his motion for new trial:

counsel's failure to utilize certain impeachment evidence at

trial, the failure of trial counsel to obtain an expert, and the

judge's denial of an evidentiary hearing on the new trial

motion.   We discern no merit to the arguments.

    A judge's decision to deny a motion for a new trial "will

not be disturbed unless a review of the defendant's case shows

that the decision, if not reversed, will result in 'manifest

injustice.'"   Commonwealth v. Vazquez, 69 Mass. App. Ct. 622,

631 (2007), quoting from Commonwealth v. Delong, 60 Mass. App.

Ct. 122, 127 (2003).   "[T]he decision whether to decide the

motion on the basis of affidavits or to hear oral testimony, is

left largely to the sound discretion of the judge."

Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981).     See

Commonwealth v. Grace, 397 Mass. 303, 312-313 (1986).

     a.   Impeachment evidence.    Contrary to the defendant's

contention, counsel's failure to impeach Weiss with ambiguous

evidence -- the omission from her prior written statement to

police dated September 19, 2005, that the defendant was present
                                                                   28


when she saw Holli beating Haleigh with the bat on one

particular occasion -- did not deprive him of an "otherwise

available, substantial ground of defence."    Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974).    See Commonwealth v. Wall,

469 Mass. at 663-665 (generally failure to impeach a witness

does not constitute ineffective assistance of counsel).     As

previously explained, defense counsel effectively cross-examined

Weiss on her change in testimony, her failure to intervene to

prevent the abuse, and the circumstances in which she eventually

implicated the defendant and Holli.

    b.   Failure of counsel to obtain an expert on Munchausen

syndrome by proxy (MSBP).   The defendant claims that his

attorney was ineffective for failing to obtain an expert to

testify that Holli was suffering from MSBP.   In support of this

claim, the defendant attached two affidavits and reports from

Dr. Robert Chabon, and Beth Wechsler, a licensed social worker,

to his motion for new trial.   Each expert had prepared the

materials in April, 2011, on behalf of Pamela Krzyzek and her

employer, Brightside, Inc., to defend a civil lawsuit brought by

Haleigh's legal guardian.   Wechsler described MSBP as a

condition involving caregivers who cause injury to someone else,

often a child, in order to be viewed as "a loving rescuer of a

child who has severe problems."   Dr. Chabon explained that the

"family constellation typically includes fathers who are 'away
                                                                     29


at work' a great deal and are completely oblivious and are

uninvolved in the process that involves numerous office visits

and hospitalizations of their own children."   According to Dr.

Chabon, "[n]early all individuals who come into contact with

[MSBP] cases experience some resistance to believing that

mothers could intentionally harm their children in this

horrifying way.   The disbelief is in part engendered by a

dramatic discrepancy between the public presentation and the

private reality of these families" (emphasis supplied).      See

Commonwealth v. Robinson, 30 Mass. App. Ct. 62, 74 n.10 (1991),

citing People v. Phillips, 122 Cal. App. 3d 69, 76-77, 78-79, 85

n.1 (1981), for a description of MSBP.

    Both Dr. Chabon and Wechsler gave an opinion that Holli

presented a case of MSBP and that in the circumstances neither

Krzyzek nor her employer reasonably could have been expected to

determine that Haleigh was the victim of child abuse.

    Because the proffered evidence was prepared in relation to

defending a social worker, the materials failed to address the

issue at bar, namely, whether the defendant was among those

reasonably misled.   The reports discuss Holli's deception that

was directed solely toward her medical providers and, as Dr.

Chabon notes, "dramatic" discrepancies occur between the public

presentation (medical office visits) and the family home.     That

information concerning the defendant's role was not considered
                                                                    30


by Wechsler or Dr. Chabon is clear from the detailed list of

sources they reviewed, which omits the transcript from the trial

and interviews with Weiss, Haleigh's sister, and any other

witnesses who saw the defendant abuse Haleigh.

    Absent evidence that Holli's deception extended beyond her

public presentation to the professionals working with Haleigh,

the defendant has failed to demonstrate that MSBP would have

been relevant in assessing his role in the abuse.   The motion

judge similarly concluded that the evidence "would not have

exculpated [him] as it does not directly contradict the

eyewitness testimony that the defendant was present and partook

in the violent acts against Haleigh."   In these circumstances,

the defendant has not shown that counsel's behavior fell below

that of an ordinary fallible lawyer and likely deprived him of

an otherwise available, substantial ground of defense.    See

Commonwealth v. Saferian, 366 Mass. at 96.

    c.   Hearing on motion for new trial.    The defendant argues

that he should have been granted a hearing on his motion for new

trial because the evidence regarding MSBP was newly discovered.

According to the defendant, the experts' proffered opinions in

the materials attached to his motion were dependent on discovery

from the related civil trial, materials which were not released

until after he had been convicted.   As the motion judge found,

"the defendant's attorneys could have uncovered any link to MSBP
                                                                   31


through the information provided by Haleigh's medical providers,

[DSS], and law enforcement investigators,"17 particularly because

MSBP, also known as factitious disorder by proxy, had been

identified as a disorder well in advance of the defendant's

trial.    See Commonwealth v. Robinson, supra; American

Psychiatric Association, Diagnostic and Statistical Manual of

Mental Disorders 781-783 (4th ed. text revision 2000).    Also,

trial defense counsel had informed appellate counsel that he had

considered MSBP at the time of trial and concluded it was not

relevant.   Thus, the evidence related to MSBP was not newly

discovered.   See Commonwealth v. LeFave, 430 Mass. 169, 176

(1999).

                                    Judgments affirmed.

                                    Order denying motion for new
                                      trial affirmed.




     17
       The DSS workers whose depositions were reviewed by Dr.
Chabon and Wechsler were on the defendant's witness lists.
