MAINE SUPREME JUDICIAL COURT                                     Reporter of Decisions
Decision:    2020 ME 61
Docket:      Lin-19-293
Submitted
  On Briefs: April 14, 2020
Decided:     May 12, 2020

Panel:       GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.



                                  STATE OF MAINE

                                          v.

                                  SHAWNA GATTO


JABAR, J.

         [¶1] Shawna Gatto appeals from a judgment of conviction of murder,

17-A M.R.S. § 201(1)(B) (2020), entered by the trial court (Lincoln County,

Stokes, J.) following a jury-waived trial. Gatto contends that the trial court erred

in finding her guilty of murder pursuant to 17-A M.R.S. § 201(1)(B) because the

State did not present sufficient evidence such that the fact-finder could have

found each element proved beyond a reasonable doubt. Gatto also argues that

the trial court erred and abused its discretion when it limited her

cross-examination of the State’s Chief Medical Examiner.           We affirm the

judgment.
2

                               I. BACKGROUND

A.    Facts

      [¶2] Viewing the evidence in the light most favorable to the State, the

fact-finder could have found the following facts beyond a reasonable doubt.

State v. Cummings, 2017 ME 143, ¶ 3, 166 A.3d 996. In December 2017 Gatto

was forty-three years old and living in Wiscasset. She lived in a mobile home

with her fiancé and her fiancé’s four-year-old granddaughter, the victim.

      [¶3] Gatto and her fiancé cared for the victim full-time, and had done so

for more than two years. Gatto also provided daily childcare for her two

biological grandchildren. Gatto’s fiancé worked full-time at Bath Iron Works.

On the days he worked, he left the house around 6:00 a.m. and returned around

3:30 p.m.

      [¶4] On December 8, 2017, Gatto’s fiancé arrived home from work at

approximately 3:25 p.m. When he entered the house, Gatto’s grandchildren

were in the living room and Gatto was in the kitchen. Gatto told her fiancé that

the victim was in the tub because she had soiled herself, and directed him not

to go into the bathroom because the victim was in timeout. After working in his

bedroom for a few minutes, Gatto’s fiancé left the house to go to the hardware
                                                                                              3

store. At 4:28 p.m., before he left the property, Gatto called him and told him to

come back to the house because something was wrong with the victim.

       [¶5] Gatto’s fiancé reentered the house and went to the back bathroom.1

He found the victim lying motionless and naked on the bathroom floor. He

moved the victim to the living room and began performing CPR. Gatto’s fiancé

suggested that someone needed to call 911, and then moved the victim again,

this time to the master bathroom, where he continued performing CPR.

       [¶6] At 4:35 p.m., Gatto’s fiancé called 911, telling the dispatcher that the

victim was unresponsive. The dispatcher spoke to Gatto and to Gatto’s fiancé,

and instructed them in performing CPR. Emergency responders arrived a few

minutes later.      When they entered the house, they found Gatto’s fiancé

performing CPR on the victim in the master bathroom. The first responders

found the victim cold to the touch. Her face was heavily bruised, and her head

was misshapen and swollen. The first responders transported her to the

hospital, where she was declared dead at 5:43 p.m. Neither the first responders




   1 The mobile home where Gatto lived had two bedrooms and two bathrooms. One end of the

home held the bedroom where the children slept, along with a small bathroom (the children’s
bathroom). This small bathroom was where Gatto’s fiancé first found the victim. The other end of
the home held the master bedroom and bathroom. This master bathroom was where Gatto’s fiancé
eventually brought the victim to perform CPR and where first responders found the victim.
4

nor the emergency room physicians ever detected any signs of life from the

victim.

      [¶7] Gatto gave several statements to law enforcement regarding the

victim’s injuries. While on the phone with the 911 dispatcher, Gatto said that

the victim had fallen two days ago but was “fine” just ten minutes before she

found her unresponsive in the tub. After the victim was transported to the

hospital, Gatto rode with a detective to the Lincoln County Sheriff’s Department.

She told the detective that the victim was very accident prone, fell often, and

did not protect herself when she fell. She also claimed that the victim had been

perfectly happy and active all during that day, and again stated that the victim

was fine just moments before Gatto found her in the tub.

      [¶8] Later that evening, a Maine State Police detective interviewed Gatto

at the Lincoln County Sheriff’s Department. Asked to describe the victim, Gatto

painted a picture of an injury-prone child whose clumsiness and lack of any

self-protective instincts led to bumps, bruises, and cuts on a daily basis. Gatto

listed several recent instances in which the victim had serious falls that resulted

in black eyes, cuts, and bruises. The detective asked Gatto to describe what

happened on December 8. According to Gatto, the victim had soiled herself,

which she said was a common occurrence, and Gatto had put her in the tub
                                                                                                 5

without water. Gatto said that she went to fetch the victim a drink and returned

moments later to find the victim unresponsive in the tub.

        [¶9] Late on the night of December 8, detectives with the Maine State

Police searched Gatto’s home pursuant to a search warrant. In the child’s

bathroom they found evidence of blood and signs of an attempt to clean up the

blood. They identified blood stains on a sponge and shirt in the tub, on paper

towels in a trash bag, on towels and bedding, and on a set of child’s pajamas

found soaking in a bucket of water. Detectives noticed a dent in the drywall of

the back bedroom in the shape of a child’s head, stained with blood and

embedded with hair. The hair belonged to the victim.2

        [¶10] The State of Maine’s Chief Medical Examiner, Mark Flomenbaum,

M.D., conducted an autopsy of the victim’s body. He documented at least fifteen

injuries to the victim’s head and face, including serious bruises and deep

lacerations. He found that the victim was very small for her age, with patchy,

thin hair. He also determined that although her skull was not fractured, she had

a significant accumulation of blood under her scalp and a buildup of scar tissue

from a head injury. Her brain had swollen due to oxygen deprivation. He

opined that the victim suffered from Child Abuse Syndrome and had sustained


  2   Detectives also identified the victim’s blood on objects throughout the bedroom and bathroom.
6

numerous nonfatal injuries that contributed to her death from a separate,

ultimately-fatal injury.

        [¶11]      The autopsy also revealed that the victim’s abdomen was

distended, but did not show bruises or other external signs of injuries.

Dr. Flomenbaum concluded that internal injuries resulted in internal bleeding,

and that about one-third of the victim’s blood had accumulated in her

abdominal cavity, along with gastric contents. Her intestines were torn and her

pancreas lacerated. The loss of blood had caused her brain to be starved for

oxygen and swell, and eventually caused her heart to stop.3

        [¶12] The Maine State Police detective interviewed Gatto again on

December 10. Gatto repeated her story regarding her final minutes with the

victim. She explained the victim’s many bruises and injuries with a litany of

stories about the victim’s clumsiness and frequent falls, but reported that she

never felt a need to take the victim to a doctor. She denied inflicting any of the

victim’s injuries.



    3Dr. Flomenbaum and John Daniel, M.D., a pathologist called by Gatto as an expert witness, agreed
as to the nature of the victim’s injuries and the manner and cause of death. They disagreed, however,
on the timing of her internal injuries relative to her death. Dr. Flomenbaum testified that the victim’s
internal injuries were inflicted between one and twelve hours prior to her death, and that they most
likely occurred between three and six hours prior to death. Dr. Daniel disagreed, testifying that the
victim’s abdominal injuries—the fatal injuries—were likely inflicted between sixteen and thirty-two
hours, and perhaps has much as three days, before she died.
                                                                                                7

B.       Procedure

         [¶13] On January 13, 2018, a Lincoln County grand jury indicted Gatto

on one count of murder, 17-A M.R.S. § 201(1)(B). Gatto pleaded not guilty and

waived her right to a jury trial. M.R.U. Crim. P. 23(a). On July 13, 2018, Gatto

moved in limine to be permitted to cross-examine Dr. Flomenbaum regarding

his termination from the Office of the Chief Medical Examiner in Massachusetts,

and to be permitted to introduce extrinsic evidence regarding Dr.

Flomenbaum’s termination if the need arose. The trial court took the motion

under advisement, but deferred ruling until the matter was closer to trial. The

trial court held a five-day trial between April 1 and April 8, 2019. After the State

completed its direct examination of Dr. Flomenbaum, the court heard argument

from the parties regarding Gatto’s motion in limine and subsequently denied

the motion.

         [¶14] On April 30, 2019, the trial court returned its verdict, finding Gatto

guilty of depraved indifference murder pursuant to 17-A M.R.S. § 201(1)(B).

The court later sentenced Gatto to fifty years’ imprisonment. Gatto timely

appealed from the judgment of conviction.4 M.R. App. P. 2B(b)(1).



     Gatto applied for review of her sentence. M.R. App. P. 20(a)(1). The Sentence Review Panel
     4

denied her application for sentence review. M.R. App. P. 20(f); 15 M.R.S. § 25152 (2020); State v.
Gatto, No. SRP-19-294 (Me. Sent. Rev. Panel Sept. 5, 2019).
8

                                II. DISCUSSION

A.    Sufficiency of the Evidence

      [¶15] Gatto contends that the trial court erred in finding her guilty of

murder as defined in 17-A M.R.S. § 201(1)(B) because the State did not present

sufficient evidence to support the fact-finder’s determination that the State had

proved each element beyond a reasonable doubt. Specifically, Gatto argues that

the trial court could not have found her guilty without direct evidence linking

her conduct to the infliction of the victim’s fatal injury. Contrary to her

contentions, however, the record evidence is sufficient to support the court’s

findings, even absent direct evidence that Gatto inflicted the fatal injury. See

Cummings, 2017 ME 143, ¶ 14, 166 A.3d 996 (holding that reasonable

inferences based on circumstantial and DNA evidence may be sufficient to

affirm a conviction for murder).

      1.    Legal standard

      [¶16] “When reviewing a judgment for sufficiency of the evidence, we

view the evidence in the light most favorable to the State to determine whether

the fact-finder could rationally have found each element of the offense beyond

a reasonable doubt.” Id. ¶ 12 (alterations omitted) (quotation marks omitted).

“We defer to all credibility determinations and reasonable inferences drawn by
                                                                                               9

the fact-finder, even if those inferences are contradicted by parts of the direct

evidence.” Id. (quotation marks omitted).

       [¶17] A person is guilty of depraved indifference murder if the person

“engages in conduct that manifests a depraved indifference to the value of

human life and that in fact causes the death of another human being.”

17-A M.R.S. § 201(1)(B). “A person acts with depraved indifference to the value

of human life in Maine if the person’s conduct, objectively viewed, created such

a high tendency to produce death that the law attributes to him the highest

degree of blameworthiness.”5 Cummings, 2017 ME 143, ¶ 16, 166 A.3d 996

(quotation marks omitted). The State must prove both that the defendant

“should have known [her conduct] would create a very high degree of risk of

death or serious bodily injury” and that the conduct was “particularly

outrageous, revolting, brutal, or shocking.” State v. Crocker, 435 A.2d 58, 63, 65

(Me. 1981) (quotation marks omitted).

       2.     Evidence that Gatto Caused the Victim’s Death

       [¶18] In its written decision, the trial court divided its analysis into two

discrete issues: first, whether Gatto in fact caused the victim’s death; and


  5  We have interpreted Maine’s statute defining depraved indifference murder not to require any
culpable mental state on the part of the defendant. Cummings, 2017 ME 143, ¶ 19, 166 A.3d 996;
State v. Lagasse, 410 A.2d 537, 540 (Me. 1980).
10

second, whether Gatto engaged in conduct that, viewed objectively, manifested

a depraved indifference to the value of human life.

      [¶19] In its detailed and lengthy analysis, the trial court acknowledged

the possibility that someone other than Gatto, specifically Gatto’s fiancé, caused

the victim’s fatal injuries. The trial court ultimately discounted this theory,

concluding that it was Gatto who killed the victim. The record evidence, viewed

in the light most favorable to the State, fully supports the trial court’s finding

that Gatto caused the victim’s death.

      [¶20] Both Gatto and her fiancé cared for the child, but Gatto provided

the vast majority of the childcare. Gatto did not actually suggest to the court

that her fiancé might have hurt the victim, and that possibility is all but

foreclosed by the fact that Gatto claims to have been personally present every

time the victim allegedly injured herself.        Her detailed, if implausible,

explanations for each and every bruise and cut on the victim’s battered body do

not square with a conclusion that the victim’s injuries actually stemmed from

abuse inflicted by Gatto’s fiancé. The trial court was entitled to reject Gatto’s

alternative explanations for the victim’s injuries. See State v. Saenz, 2016 ME

159, ¶ 24, 150 A.3d 331 (holding that the record contained sufficient evidence
                                                                             11

to support a conviction for depraved indifference murder where defendant

argued that victim’s injuries were accidental and self-inflicted).

      [¶21] The record evidence does not support Gatto’s assertions that the

victim’s injuries were all accidental and self-inflicted. The expert witnesses

agreed that the victim was an abused child and that her fatal abdominal injuries

were inflicted by some sort of massive squeezing pressure. Gatto’s behavior

prior to the victim’s death suggests that she recognized the absurdity of her

explanations for the victim’s appearance—she and her fiancé were reticent to

take the victim out in public for fear that someone would recognize the obvious

signs of abuse. The trial court concluded that the testimony of Gatto’s fiancé

was credible, but found Gatto’s statements to police regarding the victim

“utterly unworthy of belief.” Because the court reasonably concluded that Gatto

was the only person who hurt the victim, it was unnecessary to resolve the

dispute regarding the timing of the fatal injury relative to the victim’s death—

whenever the injury was inflicted, it was inflicted by Gatto.

      3.    Evidence that Gatto Acted with Depraved Indifference

      [¶22] Ample record evidence supports the trial court’s finding that Gatto

engaged in conduct that created a very high degree of risk of serious bodily

injury or death. See Crocker, 435 A.2d at 63, 65. Evidence of the long period of
12

abuse supports this conclusion, as does evidence of the mechanism of the

victim’s fatal injury. The forensic evidence suggests that Gatto imposed an

extremely high level of violence on the victim over the course of weeks or

months. This evidence includes a head-shaped dent in the wall that was

impregnated with the victim’s hair and blood; blood spatter evidence

throughout the victim’s bedroom; deep bruising all over the victim’s face and

body; evidence of hemorrhaging under the victim’s scalp; and signs of chronic

stress in the victim’s brain. The degree of violence imposed and the physical

characteristics of the victim support the conclusion that Gatto knew or should

have known that her conduct carried with it a very high risk of serious bodily

injury or death. See Crocker, 435 A.2d at 63, 65.

      [¶23] Furthermore, the mechanism by which the victim’s fatal injuries

were inflicted support a similar conclusion. The expert witnesses agreed that

a very strong squeezing action caused the victim’s pancreas to be pushed

against her spine and lacerate. The trial court was found that this injury was

purposely inflicted, not accidental, and the forensic evidence demonstrates that

such an injury could be caused only by a slow and concerted application of force

and that such application of force was sure to involve a high degree of risk of

bodily injury.
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      [¶24] Finally, record evidence underpins the trial court’s finding that

Gatto’s death-producing conduct was “outrageous, revolting, shocking, and

brutal.” Crocker, 435 A.2d at 65. The duration of the abuse, its violence, the

helplessness of the child, and Gatto’s denial of medical attention to the victim

were properly characterized by the trial court as “cruel” and as constituting

“torture.”

      [¶25] Viewing the evidence in the light most favorable to the State, and

deferring to the trial court’s reasonable inferences and determinations of

witness credibility, the record is sufficient to support the trial court’s

conclusion that the State had proved all elements of depraved indifference

murder beyond a reasonable doubt. See Cummings, 2017 ME 143, ¶ 12, 166

A.3d 996. The law does not compel a judgment of acquittal, as Gatto contends,

where the State does not present direct evidence that the defendant caused the

victim’s fatal injury. See id. ¶ 14. The trial court was entitled to rely on the

overwhelming circumstantial evidence in making its findings. Id.

B.    Limitation of Cross-Examination

      [¶26] Gatto argues that the trial court erred and abused its discretion

when it limited her cross-examination of Dr. Flomenbaum, specifically by

precluding her from asking about his removal from the Office of the Chief
14

Medical Examiner in Massachusetts.6 She contends that this evidence was

probative of his character for truthfulness, necessary to challenge his

qualification as an expert witness,7 and relevant to show bias.

         1.    Character for Untruthfulness

         [¶27] The factors that guide a trial court’s analysis of proffered evidence

under Rule 608(b), which governs the admissibility of specific instances of a

witness’s conduct to attack or support the witness’s character for truthfulness,

do not compel a conclusion that the evidence at issue should have been

admitted, and do not support a conclusion that the trial court abused its

discretion. M.R. Evid. 608(b); Haji-Hassan, 2018 ME 42, ¶ 14, 182 A.3d 145. We

have noted that the decision to admit evidence of Dr. Flomenbaum’s prior

removal is to be made based on the individual factors present in each case:




   6 We have considered several appeals regarding the extent to which criminal defendants may be

permitted to impeach Dr. Flomenbaum regarding his prior removal from employment. See State v.
Haji-Hassan, 2018 ME 42, ¶¶ 13-24, 182 A.3d 145; State v. Coleman, 2018 ME 41, ¶¶ 22-26, 181 A.3d
689. We have also considered whether a criminal defendant may cross-examine Dr. Flomenbaum
regarding a Connecticut matter in which a trial judge found Dr. Flomenbaum’s expert testimony not
to be credible. See Coleman, 2018 ME 41, ¶¶ 16-21, 181 A.3d 689. Gatto did not seek to introduce
evidence or to cross-examine Dr. Flomenbaum regarding the Connecticut matter.

     Gatto argues for the first time on appeal that evidence of Flomenbaum’s firing in Massachusetts
     7

was also relevant to challenge his credentials as an expert witness, pointing in particular to Coleman,
2018 ME 41, ¶ 24, 181 A.3d 689. However, the trial court correctly distinguished the facts of this
case from those of Coleman, at least with regard to the issue of the foundation for Flomenbaum’s
qualification as an expert witness. The trial court did not commit obvious error in not admitting this
evidence on these grounds. See State v. Fahnley, 2015 ME 82, ¶ 15, 119 A.3d 727 (stating that
unpreserved claims of error are reviewed for obvious error).
                                                                                15

      This is properly a case-by-case determination, and we announce no
      blanket rule on the admissibility of this evidence in other cases.
      The trial courts must exercise their discretion in the particularized
      context of each case to admit or exclude such evidence after
      evaluating the extent of any relevance it may have, and, if it is
      deemed relevant, weighing its probative value against the dangers
      listed in Rule 403.

Haji-Hassan, 2018 ME 42, ¶ 24, 182 A.3d 145. Although Gatto’s offer of proof

put forth a colorable argument that the line of questioning could be probative

of truthfulness, the trial court properly considered the countervailing factors

that pointed toward exclusion. The trial court expressed concern that the

cross-examination would not actually elicit evidence of specific instances of

conduct. Id. ¶ 21 (“[L]ack of candor and failure to communicate fully and

frankly are not specific instances of untruthful conduct, but are more akin to

extrinsic opinions of a third party . . . .” (quotation marks omitted)). The trial

court also worried that this line of questioning would devolve into a “retrial of

the removal case” that would waste significant time with no attendant benefit.

Because the proffered evidence did not fit within Rule 608(b)’s definition of

specific instances of conduct, risked wasting time, and was arguably of limited

probative value, the trial court did not abuse its discretion in declining to admit

this evidence pursuant to Rule 608(b).
16

      2.    Bias

      [¶28] In addition to her argument that she should be permitted to

cross-examine Dr. Flomenbaum under Rule 608(b) regarding his prior

removal, Gatto also argued at trial that the evidence was admissible because it

tended to show bias or prejudice. Because Dr. Flomenbaum had been removed

from his job in Massachusetts, Gatto argued, he held his current position more

dearly, and would be willing to offer evidence favorable to the State in order to

avoid another such removal.

      [¶29] “Evidence of bias, hostility and personal interest of a witness may

be shown by the introduction of independent evidence to that effect, and is not

limited to cross-examination of the witness, and no preliminary foundation

need be laid for its admissibility.” State v. Doughty, 399 A.2d 1319, 1324

(Me. 1979). Despite this broad and general rule, we have previously opined

that evidence of Dr. Flomenbaum’s removal does not tend to show bias:

      The connection between Dr. Flomenbaum’s removal and his
      alleged bias in favor of the State of Maine to maintain his current
      employment is speculative at best, and its probative value, if any, is
      slight. The evidence is no more probative of bias than the fact,
      taken alone, that he is currently employed by the State.

Haji-Hassan, 2018 ME 42, ¶ 21, 182 A.3d 145. Given the deferential standard of

review applied to determinations of admissibility, the minimal probative value
                                                                               17

of the evidence, and the trial court’s thorough knowledge of the circumstances

of Dr. Flomenbaum’s prior removal, the trial court did not abuse its discretion

in declining to allow Gatto to pursue this line of questioning to show bias.

                                      III. CONCLUSION

        [¶30] Viewing the evidence in the light most favorable to the State, the

record is sufficient to support the trial court’s conclusion that the State had

proved all elements of depraved indifference murder beyond a reasonable

doubt. Cummings, 2017 ME 143, ¶ 12, 166 A.3d 996. Furthermore, the trial

court did not abuse its discretion in limiting Gatto’s cross-examination of

Dr. Flomenbaum.

        The entry is:

                           Judgment affirmed.



Jeremy Pratt, Esq., and Ellen Simmons, Esq., Camden, for appellant Shawna
Gatto

Aaron M. Frey, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.,
Office of the Attorney General, Augusta, for appellee State of Maine


Lincoln County Unified Criminal Docket docket number CR-2017-877
FOR CLERK REFERENCE ONLY
