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SJC-12637

                 COMMONWEALTH   vs.   SUZANNE HARDY.



        Hampden.       February 5, 2019. - June 12, 2019.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                            Kafker, JJ.


Homicide. Motor Vehicle, Homicide, Operating to endanger.
     Reckless Endangerment of a Child. Wanton or Reckless
     Conduct.



     Indictments found and returned in the Superior Court
Department on June 1, 2015.

    The cases were tried before Richard J. Carey, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Marissa Elkins for the defendant.
     Shane T. O'Sullivan, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.   In June 2014, the defendant, Suzanne Hardy, was

involved in a multivehicle accident in Brimfield in which her

two nephews -- four year old Dylan Riel and sixteen month old
                                                                     2


Jayce Garcia -- were fatally injured.1   The defendant and her

four year old son were seriously injured, but survived.     At the

time of the accident, Dylan was seated in the rear middle seat

of the defendant's four-door sedan with the seat belt fastened,

but without an age and size appropriate child safety "booster"

seat, and Jayce was seated in the rear passenger's side

position, in a front-facing safety seat with the straps set too

high, rather than an age and size appropriate rear-facing safety

seat.

     The defendant was indicted on two counts of manslaughter,

G. L. c. 265, § 13; two counts of negligent motor vehicle

homicide, G. L. c. 90, § 24G (b); one count of assault and

battery by means of a dangerous weapon, G. L. c. 265, § 15A (b);

and three counts of reckless endangerment of a child, G. L.

c. 265, § 13L.   The defendant was convicted of manslaughter of

Dylan, reckless endangerment of Dylan, and negligent motor

vehicle homicide of Dylan and Jayce.

     On appeal, the defendant raises two arguments.    First, she

contends that there was insufficient evidence to support the

convictions of involuntary manslaughter and reckless

endangerment of a child relating to Dylan.   Second, she argues

that, during closing argument, the Commonwealth improperly


     1The children will be referred to by their first names to
avoid confusion.
                                                                     3


argued inferences not supported by the evidence and appealed to

the passions and sympathies of the jury.    We conclude that there

was insufficient evidence to show that the defendant's actions

amounted to wanton or reckless conduct, and as such, we vacate

the convictions of involuntary manslaughter and reckless

endangerment of Dylan.    The defendant's two convictions of

negligent homicide are affirmed.2

     1.   Background.    The defendant challenges the sufficiency

of the evidence; therefore, we summarize the facts in the light

most favorable to the Commonwealth, see Commonwealth v.


     2 The defendant argues that the prosecutor made two improper
remarks during closing argument that unduly prejudiced her and
as a result warrant a new trial. The defendant makes this claim
only in regard to the manslaughter and reckless endangerment
charge. She contends that the prosecutor's statement that the
crash would have been survivable if Dylan and Jayce were
properly restrained was outside the evidence and was central to
the question whether the defendant was reckless for not properly
securing Dylan in a booster seat. Because we conclude that
there was insufficient evidence to support the manslaughter and
reckless endangerment convictions, we need not address whether
the defendant was prejudiced by the prosecutor's allegedly
inappropriate comments.

     To the extent that the defendant makes a due process
challenge (and it is not clear that she does) that the
prosecutor's other comments that appealed to juror sympathies
warrant a new trial on the negligent homicide convictions, we
disagree. The prosecutor stated that first responders "did not
need to see" what they saw when responding to the accident. At
the end of the prosecutor's closing argument, the judge
specifically identified the statement and forcefully instructed
the jury to disregard it. The instruction adequately cured any
potential prejudice regarding the negligent homicide
convictions. See Commonwealth v. Taylor, 455 Mass. 372, 385
(2009).
                                                                   4


Latimore, 378 Mass. 671, 676-677 (1979), reserving pertinent

facts for the discussion of the arguments.   On the morning of

June 20, 2014, Nicole Riel, mother of Dylan and Jayce, met the

defendant in a parking lot to leave her children with the

defendant.3   Riel had to work, so the defendant planned to take

the children to Dylan's baseball practice later that afternoon,

and Riel planned to meet them there when she got out of work.

The defendant had two children of her own -- a four year old son

and a two year old daughter.   The defendant's children's safety

seats were installed in her vehicle, a four-door sedan, but her

children were not with her when she picked up Dylan and Jayce.

Riel secured Dylan, the four year old, into a booster seat and

placed Jayce, the sixteen month old, in a front-facing safety

seat in the defendant's vehicle.4

     The defendant drove the children to her home, where she

lived with her parents, so that they could play.   Meanwhile, the

defendant and her parents decided to leave for vacation with

Dylan that day.   The defendant had planned to take her two

children and Dylan to meet her parents at their destination the




     3 The defendant often babysat her nephews while their mother
was at work. Dylan was the son of the defendant's brother.
Although not biologically related, the Hardy family also were
close with Jayce, Dylan's half-brother.

     4Riel had secured Jayce in a front-facing safety seat in
her own vehicle from the time he was approximately one year old.
                                                                     5


following day, but decided to leave that day instead, as Dylan's

baseball practice was canceled.

     After her plans changed, the defendant decided to drive to

Riel's house to return Jayce to his mother and pick up an

overnight bag for Dylan to take on vacation.     As the defendant

placed her two nephews and her son in her vehicle, her father

observed that there were only two safety seats in her vehicle's

back seat.    He took a booster seat out of his wife's vehicle and

placed it against the rear driver's side door of the defendant's

vehicle.     The defendant picked up the booster seat, opened her

vehicle's rear door, looked into the back seat, closed the door,

and placed the booster seat in the trunk of her vehicle.

     When the defendant left, her son was in the rear driver's

side of the vehicle in his booster seat, Jayce was in the front-

facing safety seat behind the front passenger's seat with the

straps set at an improper height, and Dylan was buckled into the

rear middle seat with a shoulder and lap belt but no booster

seat.    The defendant's son was about one month older than Dylan,

but Dylan was larger -- he was forty-four inches tall and

weighed fifty-four pounds.5


     5 According to G. L. c. 90, § 7AA, Dylan was required to be
secured in a booster seat. General Laws c. 90, § 7AA, states:
"A passenger in a motor vehicle on any way who is under the age
of [eight] shall be fastened and secured by a child passenger
restraint, unless such passenger measures more than [fifty-
seven] inches in height. The child passenger restraint shall be
                                                                    6


    At around 4:30 P.M., the defendant was driving

approximately the speed limit, fifty-five miles per hour, on a

four-lane highway in Brimfield.   This stretch of the highway was

relatively flat; had four lanes, two eastbound and two

westbound; and was divided in the middle by a double yellow

line.   A dump truck with an attached trailer was stopped in the

left-hand eastbound lane ahead, as the driver waited to make a

left turn into a parking lot.   The truck was stopped for

approximately thirty seconds to one minute, while the driver

waited for westbound traffic to clear in order to make the turn.

The truck's trailer attachment's turn signal was on.     The

defendant's vehicle approached the truck from behind without

slowing down, then quickly swerved into the right eastbound lane

and struck the guardrail on the right side of the road.        It

crossed both eastbound lanes in front of the truck and then

crossed the double yellow line into oncoming westbound traffic.

The defendant's vehicle struck the back of a sport utility

vehicle in the left westbound lane before hitting a sedan

traveling in the right westbound lane head-on.   The two vehicles

were traveling between fifty and fifty-nine miles per hour at

the time of impact.   Two State police accident reconstruction

experts testified that the defendant did not apply her brakes at



properly fastened and secured according to the manufacturer's
instructions."
                                                                   7


any time leading up to the collision.   Dylan and Jayce did not

survive the crash.6,7

     At trial, the Commonwealth's medical examiner determined

the cause of death was the same for each child -- blunt force

trauma of the head and neck with atlanto-occipital

disarticulation.   This type of injury occurs when "the head and

the body are not in synchronization," such as when the body is

restrained or stationary and the head continues to move forward

at a high speed causing it to become unattached from the spine

internally.   The medical examiner was not an expert in child

safety seats and could not say whether Jayce would have survived

if his seat had been rear-facing or whether Dylan would have

survived if he had been in a booster seat.

     One of the accident reconstruction experts testified that

all three child safety seats were capable of being properly

installed in the back seat.   According to State law and

manufacturer recommendations, based on their ages and weights,

Dylan should have been in a booster seat and Jayce, although in


     6 The defendant and her son suffered severe injuries. The
defendant was unresponsive when first responders arrived and was
transported to a level one trauma center via helicopter. Her
son suffered a head injury and severe skeletal damage to his
torso.

     7The driver of the sedan that was hit and her seventeen
month old daughter, who was secured in a front-facing safety
seat in the rear of the vehicle, were severely injured but
survived.
                                                                       8


a proper safety seat, should have been rear-facing.    The

accident reconstruction expert testified to the safety benefits

of a booster seat and how it can position a child so that the

seat belt aligns with the strong points of the body.     If

properly used, a booster seat allows the body to "slow down and

ride down . . . collision forces and make [a crash] survivable."

In addition, the expert testified that weather, solar glare, and

mechanical defects were not factors in this collision.        In the

expert's opinion, a "normal person" in the defendant's position

would have been able to avoid the collision by perceiving the

trailer ahead of her, and the crash was the result of the

defendant's inattentiveness to the road in front of her.

    2.   Sufficiency of the evidence.   The defendant moved for

required findings of not guilty on all counts at the close of

the Commonwealth's case and again at the close of all evidence.

The motion was allowed as to one count of reckless endangerment

of a child, as to the defendant's son, at the close of the

Commonwealth's evidence, but the motions were otherwise denied.

On appeal, the defendant contends that the judge erred when he

denied the motions and ruled, both during trial and again after

the jury's verdicts, that securing Dylan with a regular seat

belt, but not placing him in a booster seat, was a legally

sufficient basis to convict her of manslaughter and reckless

endangerment of a child.   The Commonwealth contends that the
                                                                    9


defendant's conduct created a substantial risk of bodily injury

sufficient to satisfy the elements of recklessness for both

involuntary manslaughter and reckless endangerment of a child.

    The elements of the crime of manslaughter are derived from

the common law.   Commonwealth v. Carter, 481 Mass. 352, 364

(2019).   In Carter, we reiterated the long-standing definition

of manslaughter as "an unlawful homicide, unintentionally caused

. . . by an act which constitutes such a disregard of probable

harmful consequences to another as to constitute wanton or

reckless conduct" (citation omitted).   Id.   Wanton or reckless

conduct "involves a high degree of likelihood that substantial

harm will result to another," and depends on whether the

defendant realized the risk of harm or if a reasonable person,

who knew what the defendant knew, would have realized such risk.

Commonwealth v. Earle, 458 Mass. 341, 347 & n.9 (2010), quoting

Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).

    As a general rule, the requirement of "wanton or reckless

conduct" may be satisfied by either the commission of an

intentional act or an intentional omission where there is a duty

to act.   Commonwealth v. Pugh, 462 Mass. 482, 497 (2012).    "To

constitute wanton or reckless conduct, as distinguished from

mere negligence, grave danger to others must have been apparent,

and the defendant must have chosen to run the risk rather than

alter [her] conduct so as to avoid the act or omission which
                                                                   10


caused the harm."    Welansky, 316 Mass. at 398.   See Commonwealth

v. Dragotta, 476 Mass. 680, 686 (2017), quoting Commonwealth v.

Levesque, 436 Mass. 443, 452 (2002).    Although our cases state

frequently that "[t]he essence of wanton or reckless conduct is

intentional conduct," see Commonwealth v. Catalina, 407 Mass.

779, 789 (1990), quoting Welansky, supra at 399, wanton or

reckless conduct does not require that the actor intended the

specific result of her conduct, but only that he or she intended

to do the wanton or reckless act.   Commonwealth v. Life Care

Ctrs. of Am., Inc., 456 Mass. 826, 832 (2010).

    Reckless endangerment of a child, on the other hand, is a

crime created by the Legislature.   See G. L. c. 265, § 13L

(§ 13L).   To prove reckless endangerment of a child, the

Commonwealth must prove "(1) a child under age eighteen, (2) a

substantial risk of serious bodily injury or sexual abuse, and

(3) the defendant wantonly or recklessly (i) engaged in conduct

that created the substantial risk, or (ii) failed to take

reasonable steps to alleviate that risk where a duty to act

exists."   Commonwealth v. Coggeshall, 473 Mass. 665, 667–668

(2016).    The definition of "wanton or reckless" under § 13L is

drawn from the common-law definition of wanton or reckless,

barring one distinction.   See id. at 670.   Unlike the common-law

meaning of wanton or reckless, under § 13L the Commonwealth does

not have the option of proving a defendant's objective or
                                                                  11


subjective state of mind -- the defendant actually must be aware

of the risk.   Id. (in this regard § 13L evinces "a clearly

expressed legislative intent to depart from the common-law

meaning of the words 'wanton or reckless'").   Therefore, to

uphold the defendant's manslaughter conviction we must conclude

that the defendant or a reasonable person in the same

circumstances would have realized the gravity of the danger.

Id. at 669-670.   To uphold her § 13L conviction, we must

conclude that the defendant was actually aware of the risk.    Id.

at 670.   Nonetheless, even though the awareness element is

different, the conduct that defines "wanton or recklessness" is

the same under both manslaughter and § 13L.    See id. at 669-670.

That is, if the conduct is wanton or reckless under § 13L, then

it is wanton or reckless under the involuntary manslaughter

standard.   However, because involuntary manslaughter can be

measured by the reasonable person standard, conduct that is

wanton or reckless under the involuntary manslaughter standard

will not always be wanton or reckless conduct under § 13L.

    This court, as well as the Appeals Court, has had many

occasions to define what type of conduct is "wanton or reckless"

concerning the care of children.   See Commonwealth v. Hendricks,

452 Mass. 97, 104-106 (2008) (wanton or reckless conduct under

§ 13L where defendant [1] went on high-speed nighttime chase

with police while his three year old child was in vehicle, and
                                                                  12


[2] fled on foot with child with police in pursuit because

defendant knew such pursuit would place child at substantial

risk of harm); Commonwealth v. Twitchell, 416 Mass. 114, 118

(1993) (failure to provide medical care to young child in

distress is reckless conduct in support of involuntary

manslaughter conviction); Commonwealth v. Leonard, 90 Mass. App.

Ct. 187, 194 (2016) (wanton or reckless conduct under § 13L

where defendants were consuming alcohol along with teenagers in

defendants' home, were aware that minor victim was vomiting

after consuming large volume of alcohol, and did not heed

victim's requests to be taken to hospital); Commonwealth v.

Figueroa, 83 Mass. App. Ct. 251, 259-261 (2013) (wanton or

reckless conduct under § 13L where, after defendant's boyfriend

dropped her infant grandson, defendant [1] refused plea of

infant's mother to take infant to hospital, and [2] took

mother's telephone to prevent her from calling 911);

Commonwealth v. Power, 76 Mass. App. Ct. 398, 407 (2010)

(violation of statutory and regulatory standards was wanton or

reckless conduct in support of involuntary manslaughter

conviction where toddler died in defendant's day care facility);

Commonwealth v. Robinson, 74 Mass. App. Ct. 752, 758-759 (2009)

(wanton or reckless conduct in support of conviction of assault

and battery upon child where defendant failed to give child
                                                                  13


timely medical attention even though there was high likelihood

that child would suffer substantial bodily injury without it).

    Likewise, we have considered the type of conduct that is

"wanton or reckless" when operating a motor vehicle.   See

Hendricks, 452 Mass. at 104-106; Commonwealth v. DeSimone, 349

Mass. 770, 770-771 (1965) (defendant passing vehicle, weaving

through traffic, following too closely, and again passing

vehicle sufficient to constitute wanton or reckless conduct for

manslaughter conviction); Commonwealth v. Moore, 92 Mass. App.

Ct. 40, 45-46 (2017) (wanton or reckless operation of vehicle

where defendant led police on high-speed chase through busy city

streets at rush hour and made no effort to slow down or steer

away from intersection before collision that struck victim);

Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 41 (2016) (wanton

or reckless operation of motor vehicle supported manslaughter

conviction where defendant chose to drive after being visibly

drunk and continued to drive after striking victim, hearing

victim scream, and hearing witnesses yelling at defendant to

stop).   In these cases, "a high degree of likelihood that

substantial harm will result to another" flowed from the

intentional conduct.   Earle, 458 Mass. at 347, quoting Welansky,

316 Mass. at 399.

    Perhaps it is a testament to prosecutorial discretion,

trial judges properly dismissing cases based on insufficient
                                                                   14


evidence, and juries conscientiously performing their function

that we have had few occasions to review convictions on the

basis that the evidence was insufficient to prove "wanton or

reckless" conduct.     See, e.g., Dragotta, 476 Mass. at 686-689

(not wanton or reckless conduct where defendant's infant

suffered significant injuries from defendant's boyfriend because

there was no evidence that defendant should have known boyfriend

was so manifestly unfit to care for victim that grave danger

existed when infant was left in boyfriend's care); Pugh, 462

Mass. at 484 (no wanton or reckless conduct where defendant in

labor decided to give birth unassisted); Life Care Ctrs. of Am.,

Inc., 456 Mass. at 833-834 (insufficient evidence to support

involuntary manslaughter conviction where nursing home resident

died as result of negligence, but no individual behavior could

be found to have been wanton or reckless); Commonwealth v.

Santos, 94 Mass. App. Ct. 558, 561 (2018) (defendant's act of

leaving child in front of television while defendant used

bathroom was not reckless even though child previously had

wandered from home).     But see Santos, supra at 562 (searching

for missing child for only ten minutes and not calling police

was reckless conduct).

    Moreover, in all cases, not just those in which there is a

horrific tragedy as there is here, we must look at the conduct

that caused the result to determine whether it was wanton or
                                                                   15


reckless, not the resultant harm.   See, e.g., Commonwealth v.

Flynn, 420 Mass. 810, 815 (1995) (evidence was insufficient to

support guilty verdict because Commonwealth failed to prove that

defendant's conduct was cause of victim's death); Commonwealth

v. Michaud, 389 Mass. 491, 498-499 (1983) (where infant died of

starvation, total evidence, including physical appearance of

child at time of death and conjectural evidence that mother did

not appropriately feed child, was insufficient to establish

wanton or reckless culpability).

    Here, viewing the evidence in the light most favorable to

the Commonwealth, no rational juror could find beyond a

reasonable doubt that the defendant's actions were wanton or

reckless.   The evidence showed that Dylan and Jayce died as a

result of the collision.    The jury were permitted to infer from

the evidence that the defendant's negligent driving contributed

to the collision.   Experts with the State police testified that

the defendant was driving approximately the speed limit, but did

not apply her brakes at any time leading up to collision.

Neither weather, solar glare, nor mechanical defects were

factors in the collision.   One of the experts concluded that a

"normal person" in the defendant's position would have been able

to avoid the collision by perceiving the trailer ahead of her

and that the crash was the result of the defendant's

inattentiveness to the road in front of her.   The defendant's
                                                                     16


general inattentiveness alone, however, is insufficient to

support a finding of recklessness.     Cf. Hendricks, 452 Mass. at

104-106; Moore, 92 Mass. App. Ct. at 45-46; Guaman, 90 Mass.

App. Ct. at 41.

    The evidence also showed that the defendant acknowledged

the booster seat provided by her father, but that she placed it

in the trunk of her vehicle rather than secure it in the

backseat with the two safety seats already installed, even

though three child safety seats were capable of being properly

installed at the same time.    The Commonwealth relies on this

evidence to support the inference that the defendant recognized,

and thereafter disregarded, the risk of harm from securing Dylan

without a booster seat.     Although this evidence suggests that

the defendant appreciated the risk of not securing Dylan in a

booster seat, it does not support an inference that grave danger

from not securing Dylan in a booster seat was apparent.      Put

differently, there was not sufficient evidence for the jury to

find that the defendant was aware, or that a reasonable person

would have been aware, that failing to secure Dylan in a booster

seat created a high degree of likelihood that substantial harm

would result.     See Dragotta, 476 Mass. at 686.   This was not a

situation where the defendant's conduct had a likely consequence

of substantial harm.    See Commonwealth v. Chapman, 433 Mass.

481, 488 (2001) (wanton or reckless conduct where defendant left
                                                                     17


baby unattended for three minutes in water deep enough to drown,

waited from three to five minutes once seeing baby had drowned

before calling 911, and made no effort to revive baby using

cardiopulmonary resuscitation).    To reach that conclusion, we

would have to conclude that operating a motor vehicle with an

improperly restrained child is per se an inherently dangerous

activity, even absent other factors that enhance its

dangerousness.   See, e.g., Hendricks, 452 Mass. at 104-106;

Moore, 92 Mass. App. Ct. at 45-46.

    In addition, the evidence showed that a child of Dylan's

size legally was required to be secured in a booster seat.     See

G. L. c. 90, § 7AA.    The defendant's failure to comply with the

Massachusetts law that required a child of Dylan's size to be

secured in a booster seat does not, by itself, amount to wanton

or reckless conduct.    Power, 76 Mass. App. Ct. at 407.   Again,

the jury could find that securing a four year old with only a

seat belt was negligent, but recklessness is more than a mistake

of judgment or even gross negligence; it is conduct that is

"substantially more than negligence."    See Hendricks, 452 Mass.

at 103.   See also Michaud, 389 Mass. at 499.

    The Commonwealth argues that if the defendant's decision to

improperly restrain the children in her vehicle or her

"dangerous driving" -- including inattentiveness, an unsafe lane

change, collision with the guardrail, and overcorrection into
                                                                     18


oncoming traffic -- alone are not enough to satisfy the

recklessness elements of both crimes, then, in the totality of

the circumstances, her conduct was reckless.     The Commonwealth

cites Hendricks, 452 Mass. at 104-105, as support for its

position that dangerous driving combined with other evidence is

sufficient to show recklessness.    The evidence here fell

markedly short of the evidence that proved recklessness in

Hendricks.    The "dangerous driving" in Hendricks consisted of a

deliberate high-speed nighttime chase to evade and elude police.

Id. at 103.   That defendant was traveling with his child in

excess of twice the speed limit on unpaved, narrow roads

containing sharp turns.    Id.   The defendant's general

inattentiveness here is not the same intentional wanton or

reckless conduct as that at issue in Hendricks.

    3.   Conclusion.     Our cases demonstrate that something much

greater than negligence is necessary to affirm convictions of

involuntary manslaughter and reckless endangerment of a child.

See Commonwealth v. Bouvier, 316 Mass. 489, 495 (1944).      Where

negligence may result from "inadvertence, incompetence,

unskillfulness, or failure to take [adequate] precautions,"

recklessness "requires a conscious choice of a course of action

. . . with knowledge of the serious dangers to others involved"

(citation omitted).    Boyd v. National R.R. Passenger Corp., 446

Mass. 540, 547 (2006).    Under that standard, there was not
                                                                   19


legally sufficient evidence to show that the defendant's conduct

was wanton or reckless.   Therefore, the judgments of conviction

of manslaughter and reckless endangerment of a child are

reversed, the verdicts are set aside, and the case is remanded

to the Superior Court for the entry of required findings of not

guilty.   The two convictions of negligent motor vehicle homicide

are affirmed.

                                    So ordered.
