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SJC-11836

                COMMONWEALTH   vs.   KRISTEN A. LaBRIE.



            Essex.    November 2, 2015. - March 9, 2016.

 Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                             Hines, JJ.


Attempt. Homicide. Assault and Battery. Reckless Endangerment
     of a Child. Intent. Evidence, Intent. Practice,
     Criminal, Assistance of counsel.



     Indictments found and returned in the Superior Court
Department on July 3, 2009.

     The cases were tried before Richard E. Welch, III, J., and
a motion for a new trial, filed on June 6, 2013, was heard by
him.

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


     Michelle Menken for the defendant.
     Marcia H. Slingerland, Assistant District Attorney (Kate
Berrigan MacDougall, Assistant District Attorney, with her) for
the Commonwealth.


    BOTSFORD, J.     The defendant, Kristin LaBrie, was charged

with the attempted murder of her young son and related assault
                                                                 2


and battery and child endangerment crimes.   The Commonwealth

contends that the defendant, with the intent to kill her son,

did not give him prescribed chemotherapy and other medications

designed to treat the cancer from which he suffered and

ultimately died.   At a trial before an Essex County jury, the

defendant was convicted on these charges; before us is her

appeal from these convictions and also from the denial of her

motion for a new trial.   The defendant claims that her

conviction of attempted murder must be reversed because the

Commonwealth was required, and failed, to prove that the

substantive crime of murder was not achieved, and because the

judge's instructions to the jury on this crime were erroneous.

She further claims that the evidence also was insufficient to

permit convictions of the two assault and battery charges, and

again that the judge's instructions were legally incorrect.

Finally, the defendant argues that the judge erred in denying

her motion for a new trial and in particular in rejecting her

claims concerning the ineffective assistance provided by trial

counsel.   For the reasons discussed below, we affirm the

defendant's conviction of reckless endangerment of a child under

G. L. c. 265, § 13L; reverse the judgments on both assault and

battery charges and order judgment for the defendant on those

charges; and reverse the order denying the defendant's motion

for a new trial on the charge of attempted murder.
                                                                     3


     Background.    1.   Factual background.   The jury could have

found the following facts.    The defendant had a son, Peter,1 the

victim, who in 2006 was seven years old and presented with

significant medical and physical concerns.2     In October, 2006,

Peter was brought to the Massachusetts General Hospital

(hospital) on an emergency basis and diagnosed with

lymphoblastic lymphoma, a cancer of the lymph nodes.3     At the

time of the diagnosis, the defendant was separated from Eric

Fraser, her former husband and Peter's father, and the defendant

was Peter's primary caretaker.4

     Dr. Alison Friedmann, a pediatric hematologist-oncologist

at the hospital, led the treatment team for the cancer from the

point of Peter's first admission and became Peter's primary

physician throughout treatment.    When Peter was first diagnosed,

Friedmann explained to the defendant the diagnosis, the survival

rate, and an overview of the proposed treatment plan for Peter.

The plan consisted of five phases over two years, combining in-

hospital and at-home treatment.    It included a complicated


     1
         A pseudonym.
     2
       Peter was severely autistic and did not speak, had severe
developmental delay, and also had a history of seizures.
     3
       Lymphoblastic lymphoma is a form of non-Hodgkin's
lymphoma.
     4
       The defendant was the primary caretaker until March, 2008,
when Eric Fraser obtained full custody of Peter.
                                                                    4


chemotherapy regimen that used many different medications in

differing schedules and required heavy parental involvement.

With treatment pursuant to that plan, the long-term survival

rate for children with lymphoblastic lymphoma is about eighty-

five to ninety per cent.5

     In the first phase of the treatment ("induction" phase), in

which the goal was to put the cancer into remission, Peter was

hospitalized for two weeks and then treated at home for the next

two weeks.   During the home treatment portion of this phase, the

defendant was responsible for giving Peter an oral medication,

dexamethasone, a steroid that is an important part of the

treatment.   The defendant was to administer dexamethasone

beginning in approximately November of 2006.   Pharmacy records

indicate that this prescription was not filled until April,

2007.6   It appears that Peter achieved remission of the cancer by

the end of this first phase.

     In phases two ("consolidation" phase) and three ("inner

maintenance" or "delayed intensification" phase) of the

treatment, Friedmann prescribed another oral chemotherapy agent,


     5
       "Long-term survival," according to Dr. Alison Friedmann,
means that the child is cured of the disease and it never
recurs.
     6
       According to Friedmann, the defendant filled the
prescriptions at a certain pharmacy in Peabody only; however,
the defendant testified that she picked up the prescriptions
related to the first phase from the hospital.
                                                                     5


6-mercaptopurine (6-MP).    The defendant was responsible for

giving Peter 6-MP every night beginning in or about early

December, 2006, and was to continue for three or four months.

Pharmacy records indicate that this prescription was not filled

until June 28, 2007.   Nonetheless, in the winter or early spring

of 2007, the defendant told Friedmann she was having a hard time

giving Peter the 6-MP, and the doctor changed the prescription

to a liquid form.   The third phase required planned hospital

stays to receive chemotherapy as an inpatient, along with

continued at-home administration of 6-MP.

    Throughout the first three phases of Peter's treatment, a

home care nurse from the hospital visited the defendant and

Peter on a regular basis.   During the first month of treatment

the nurse traveled to the defendant's home once or twice per

week and thereafter visited when blood tests were needed.

During these visits, the home care nurse reviewed the plan of

care and answered any questions the defendant had about

administering the medications.    During the fall of 2006 into the

winter of 2007, the home care nurse asked the defendant if she

had given Peter the medications and the defendant reported that

Peter was taking his medications.    The defendant also reported

to Friedmann that generally "things seemed to be going okay,"

and aside from letting Friedmann know she was having trouble
                                                                    6


giving Peter the 6-MP, she never indicated there were any

difficulties giving Peter the medications.

     The fourth phase ("reinduction" phase), which started in

the spring of 2007, involved intravenous medications in the

clinic and oral steroids.    Peter had weekly visits with

Friedmann during which the doctor checked his blood, reviewed

the medications with the defendant, and discussed how Peter was

doing.    During this phase, the entirety of the chemotherapy was

administered at the hospital and, according to the pharmacy

records, the oral medication prescription was filled.

     The final phase of treatment ("maintenance" phase) began at

the end of June, 2007, and was intended to continue for sixteen

months.    This phase involved three medications, including 6-MP,

that were to be given to Peter by the defendant at home and one

medication that was to be administered intravenously during a

monthly visit to the hospital.    Although the 6-MP prescription

was supposed to be refilled every month and administered nightly

during this final phase, the monthly prescription was only

filled on June 28, 2007; September 5, 2007; and January 30,

2008.    In August, 2007, the defendant told the home care nurse

that "the medications were going good," Peter was tolerating

them, and she had no concerns.    Although she never filled the

prescription for the liquid form of 6-MP, the defendant further
                                                                   7


reported to the home care nurse that Peter was taking the liquid

form of 6-MP, and "it was going better."7

     During a clinic visit in February, 2008, Peter had a bad

cough and fever and his platelet count was lower; he was

diagnosed with influenza and the respiratory syncytial virus.

Friedmann was worried about a relapse, instructed the defendant

to stop his chemotherapy medicine, and prescribed an antiviral

medication to treat influenza.   The defendant told the home care

nurse that she was not giving Peter the antiviral medication

because she did not want to make him sick.   The nurse attempted

to schedule an appointment for the end of that week to draw

Peter's blood, but the defendant was unavailable.   Because it

struck Friedmann as "odd" that the hospital was unable to obtain

the blood test, she telephoned the pharmacy to determine whether

Peter's prescriptions had been filled as prescribed.   The

records revealed that the defendant had not filled multiple

medications prescribed to Peter throughout the treatment period.8

The doctor telephoned the defendant and told her they "really

needed to get some lab tests done."   When the defendant brought


     7
       Throughout the treatment, the defendant brought Peter in
for all of his doctor's appointments and for all of his
outpatient and inpatient hospital treatments; on a few
occasions, Peter missed an appointment, but the defendant
brought him in within a few days of the scheduled appointment.
     8
       Friedmann testified at trial that multiple breaks in
chemotherapy treatment are "very significant."
                                                                   8


Peter to the hospital the next day, the doctor discovered that

Peter had suffered a relapse, meaning that the cancer had

returned.9   Friedmann asked the defendant about the missed

prescriptions, but the defendant insisted that the pharmacy must

have made a mistake.   After the pharmacy confirmed that no

mistake had been made, Friedmann and a social worker at the

hospital filed a report of child abuse or neglect with the

Department of Children and Families (DCF) pursuant to G. L.

c. 119, § 51A.

     During a meeting with a DCF social worker after that report

had been filed, the defendant claimed that she had administered

all of the medications prescribed, and at some point stated to

the social worker that she knew withholding Peter's medicine

would be "like pushing him in front of a car."   At the end of

March, 2008, Fraser obtained custody of Peter, and in April the

defendant signed a stipulation rescinding her visitation rights

with Peter and agreeing to give Fraser full custody of him.

After it was confirmed that Peter had relapsed, Friedmann

explained to the defendant and Fraser that the cancer could not

be treated with the original treatment because the cancer was

now resistant to that treatment; the only viable treatment was a

bone marrow transplant, a complicated procedure with a low

     9
       Peter's cancer at this time was leukemia (cancer of the
blood and bone marrow), as compared to the earlier diagnosis of
lymphoma (cancer of the lymph nodes).
                                                                   9


chance of survival.   Peter's parents decided against the bone

marrow transplant, and it became clear that continued treatment

would only control the cancer but could not cure it; thereafter,

chemotherapy was suspended.   Peter died on March 30, 2009, of

respiratory failure secondary to acute lymphoblastic leukemia.

     The Commonwealth's theory was that the defendant understood

that not giving Peter the prescribed medications would create a

substantial risk of death, that she made an intentional decision

to withhold the medications from Peter because she wanted to

kill him, and that she repeatedly lied in order to conceal her

ongoing efforts to kill her son.   It was not possible to

determine -- according to Friedmann -- whether the defendant's

noncompliance with the medication protocol caused Peter's cancer

to return (and therefore his death), but the defendant's

noncompliance created a significant risk that the cancer would

do so.

     The theory of the defense was that the defendant's failure

to administer Peter's medications10 was done without any intent

to kill her son.   Rather, the short-term effect of the

chemotherapy treatment was simply too burdensome for a single

caretaker such as the defendant, and she was so fatigued by the

end of the treatment that her judgment waned.   The defendant


     10
       At trial, the defendant admitted that she failed to give
Peter various medications during treatment.
                                                                    10


testified to this effect, as did Dr. Frederick Krell, a forensic

psychologist who testified as an expert witness for the defense.

Krell opined that the defendant was overwhelmed with having to

cope with an impaired child who had a life-threatening illness,

and she was unable to keep in mind the long-range goal of the

treatment.   In response, the Commonwealth called Dr. Martin

Kelly, a psychiatrist, who testified that the defendant did "not

have any mental disorder or psychological condition that would

affect her capacity to premeditate, to weigh the pros and cons,

to intend to do the acts that she did."

     2.   Procedural background.   In July, 2009, the defendant

was indicted on charges of attempted murder, G. L. c. 265, § 16;

wantonly or recklessly permitting substantial bodily injury to a

child under the age of fourteen, G. L. c. 265, § 13J (b);

wantonly or recklessly permitting serious bodily injury to a

disabled person, G. L. c. 265, § 13K (e); and wantonly or

recklessly endangering a child, G. L. c. 265, § 13L.    In April,

2011, at the end of trial, a jury found the defendant guilty of

all four charges.11   The defendant filed a timely notice of

appeal and, represented by her present appellate counsel,

subsequently filed a motion for a new trial that included claims


     11
       The defendant was sentenced to a term of from eight to
ten years on the conviction of attempted murder, and concurrent
five-year terms of probation on the remaining convictions, to be
served from and after the prison sentence.
                                                                    11


of ineffective assistance of trial counsel.    The trial judge

held an evidentiary hearing on the ineffective assistance claims

at which three witnesses testified.    Following the hearing, the

judge denied the defendant's motion for a new trial.    On

November 27, 2013, the defendant filed a notice of appeal from

this denial, and the appeals were consolidated.    We transferred

the case to this court on our own motion.

     Discussion.   1.   Attempted murder:   nonachievement.   The

defendant challenges the sufficiency of the evidence for her

conviction of attempted murder.    She argues that the crime of

attempted murder, like the crime of general attempt, has three

elements:   (1) a specific intent to kill, (2) an overt act, and

(3) nonaccomplishment or nonachievement of the completed crime.

In her view, the Commonwealth was required to prove all three of

these elements beyond a reasonable doubt and argues that because

the Commonwealth, by its own admission, was unable to prove

nonachievement, her motion for a required finding of not guilty

should have been allowed.12   Alternatively, she contends that

even if the trial evidence were sufficient to preclude a

required finding on the element of nonachievement, the judge's

failure to include any instruction on this element meant that

the jury did not consider whether the Commonwealth presented

     12
       For the purposes of this argument, the defendant does not
challenge the sufficiency of the evidence of intent to kill and
of an overt act.
                                                                     12


sufficient evidence, creating a substantial risk of a

miscarriage of justice.     We disagree.   For the reasons next

discussed, we conclude that specific intent and commission of an

overt act are the required elements of the crime of attempt or,

here, attempted murder, but that nonachievement of the murder,

while clearly relevant, is not itself an element that the

Commonwealth must prove beyond a reasonable doubt.

     The crime of attempted murder is defined in G. L. c. 265,

§ 16,13 and is distinct from the crime of general attempt, G. L.

c. 274, § 6.14   Notwithstanding the differences in the language,

our cases have tended to treat the elements of attempt as the

same under both statutes.    See Commonwealth v. Peaslee, 177

Mass. 267 (1901) (attempt to burn building); Commonwealth v.

Kennedy, 170 Mass. 18 (1897) (attempted murder).     It is also the

case that attempted murder may be prosecuted as an attempt under

c. 274, § 6, rather than c. 265, § 16.     See, e.g., Commonwealth

v. Dixon, 34 Mass. App. Ct. 653, 655 (1993).

     13
          General Laws c. 265, § 16, provides in relevant part:

     "Whoever attempts to commit murder by poisoning, drowning
     or strangling another person, or by any means not
     constituting an assault with intent to commit murder, shall
     be punished . . . ."
     14
          General Laws c. 274, § 6, provides in relevant part:

     "Whoever attempts to commit a crime by doing any act toward
     its commission, but fails in its perpetration, or is
     intercepted or prevented in its perpetration, shall, except
     as otherwise provided, be punished . . . ."
                                                                   13


    This case appears to be the first in which this court has

considered directly whether nonachievement is an element of

attempted murder, or more generally, attempt.    Unquestionably,

the defendant's argument that nonachievement is an element of

attempt crimes is not without support:     a number of cases

arising under the general attempt statute have included

nonachievement as an element of attempt.    See, e.g.,

Commonwealth v. Marzilli, 457 Mass. 64, 66 (2010) (attempted

indecent assault and battery); Commonwealth v. Bell, 455 Mass.

408, 412 (2009) (attempted rape).   And the Appeals Court has

recognized a form of nonachievement -- "failure or interruption"

-- as an element of attempted murder under G. L. c. 265, § 16.

See, e.g., Commonwealth v. Murray, 51 Mass. App. Ct. 57, 61

(2001); Dixon, 34 Mass. App. Ct. at 655.     In contrast to this

case, however, in all of the cited cases the question whether

the substantive crime was completed was not at issue -- there

was no disagreement that it had not been achieved -- and the

element of nonachievement was not substantively discussed.

Moreover, a number of other cases decided by this court and the

Appeals Court suggest that the elements of attempt are limited

to the requisite intent and an overt act.    See, e.g.,

Commonwealth v. Rivera, 460 Mass. 139, 142 (2011); Commonwealth

v. Ortiz, 408 Mass. 463, 470 (1990); Commonwealth v. Gosselin,

365 Mass. 116, 120-121 (1974); Commonwealth v. Cline, 213 Mass.
                                                                   14


225, 225 (1913); Commonwealth v. Sullivan, 84 Mass. App. Ct. 26,

28-30 (2013), S.C., 469 Mass. 621 (2014).

     This court's jurisprudence on attempt dates back to

Kennedy, 170 Mass. 18, a decision authored by then Justice

Holmes, that considered a case of attempted murder brought under

an earlier version of G. L. c. 265, § 16; and Peaslee, 177 Mass.

267, authored by then Chief Justice Holmes, concerning an

attempt to burn a building under an earlier version of G. L.

c. 274, § 6.   In Kennedy, supra, the defendant was charged with

attempted murder by placing deadly poison on the victim's cup

with the intent that the victim drink from the cup, ingest the

poison, and die.    Id. at 20.   Although it is clear from the

opinion that the victim did not die as a result of the

defendant's acts, see id. at 23, the fact is of little

significance in the court's discussion of the nature of the

crime.    Rather, the court focused principally on the nature of

the overt act or acts taken by the defendant toward

accomplishment of the intended murder.15    With respect to the

overt acts, Justice Holmes emphasized that not all acts leading

toward the substantive crime are subject to punishment as a

criminal attempt, but only those that come "near enough to the

result," i.e., accomplishment of the substantive crime:

     15
       The court made clear that the evidence of the defendant's
intent to kill the victim was sufficient. Commonwealth v.
Kennedy, 170 Mass. 18, 25 (1897).
                                                                    15


     "[W]e assume that an act may be done which is expected and
     intended to accomplish a crime, which is not near enough to
     the result to constitute an attempt to commit it, as in the
     classic instance of shooting at a post supposed to be a
     man. As the aim of the law is not to punish sins, but is
     to prevent certain external results, the act done must come
     pretty near to accomplishing that result before the law
     will notice it."

Id. at 20.    See id. at 22 ("Every question of proximity must be

determined by its own circumstances . . .").     See also Peaslee,

177 Mass. at 271 ("The question on the evidence, . . . precisely

stated, is whether the defendant's acts come near enough to the

accomplishment of the substantive offence to be punishable").16

     Kennedy and Peaslee explain and illustrate that the essence

of the crime of attempt is to punish the defendant's substantial

acts toward the accomplishment of an intended substantive

offense.     See Commonwealth v. Burns, 8 Mass. App. Ct. 194, 196

     16
       The court in Commonwealth v. Peaslee, 177 Mass. 267, 272
(1901), continued in further explanation:

     "That an overt act although coupled with an intent to
     commit the crime commonly is not punishable if further acts
     are contemplated as needful, is expressed in the familiar
     rule that preparation is not an attempt. But some
     preparations may amount to an attempt. It is a question of
     degree. If the preparation comes very near to the
     accomplishment of the act, the intent to complete it
     renders the crime so probable that the act will be a
     misdemeanor although there is still [an opportunity to
     change one's mind] in the need of a further exertion of the
     will to complete the crime."

The court concluded that at least the acts alleged in the
indictment, collection and preparation of combustible materials
in a room, by themselves did not come near enough to the
accomplishment of the substantive offense of burning (arson) to
be punishable. See id. at 273-274.
                                                                  16


(1979).   See also R.M. Perkins, Criminal Law, at 552 (2d ed.

1969).    The substantive crime is clearly both relevant and

important, because what the crime of attempt aims to punish are

acts that bear a proximate relation to that crime; put another

way, the substantive crime helps to define and delimit what acts

may have the requisite proximity.   But the acts stand on their

own, and whether a particular act qualifies as an overt act

that, combined with proof of the requisite intent, constitutes a

criminal attempt does not depend on whether the substantive

crime has or has not been accomplished.17

     In contending that nonaccomplishment is an element of

attempt that the Commonwealth must prove, the defendant relies

principally on cases such as Marzilli, 457 Mass. at 66, and

Bell, 455 Mass. at 412.18   In these decisions, as previously


     17
       By way of example, in Kennedy, 170 Mass. at 21-22, the
Commonwealth's failure to prove that the amount of poison placed
on the cup was "large enough to kill" was of no import to the
defendant's liability under the law of attempted murder:

     "Any unlawful application of poison is an evil which
     threatens death, according to common apprehension, and the
     gravity of the crime, the uncertainty of the result, and
     the seriousness of the apprehension, coupled with the great
     harm likely to result from poison even if not enough to
     kill, would warrant holding the liability for an attempt to
     begin at a point more remote from the possibility of
     accomplishing what is expected than might be the case with
     lighter crimes."

Id. at 22.
     18
        The defendant also relies on Beale, Criminal Attempts, 16
Harv. L. Rev. 491 (1903).
                                                                  17


mentioned, the court listed nonachievement as an element of

attempt, but did not otherwise discuss it.   Both these cases

involved the general attempt statute, G. L. c. 274, § 6, which

contains language that focuses specifically on failing to

accomplish, or being prevented from accomplishing, the

substantive crime.19   On reflection, we consider this language to

represent not a separate element of the crime of attempt but "a

further refinement of the definition of the overt act."

Commonwealth v. Aldrich (No. 1), 88 Mass. App. Ct. 113, 118

(2015).   That is, the language helps to clarify and reinforce

the point that attempt is a crime separate and distinct from the

substantive offense to which it is connected, one that focuses

on, and punishes, acts that threaten the accomplishment of the

substantive offense, not the substantive offense itself.

Accordingly, to the extent that our decisions such as Marzilli

and Bell indicate that proof of nonachievement of the

substantive crime is an element of attempt, we no longer follow




     19
       "Whoever attempts to commit a crime by doing any act
toward its commission, but fails in its perpetration, or is
intercepted or prevented in its perpetration, shall . . . be
punished . . ." (emphasis added). G. L. c. 274, § 6. The
statute defining attempted murder, G. L. c. 265, § 16, does not
contain this language, but as discussed previously, we take the
view that the essential elements of "attempt" are the same in
both statutes.
                                                                   18


them.20   The elements of attempt, whether general attempt or

attempted murder, are (1) the specific intent to commit the

substantive crime at issue, and (2) an overt act toward

completion of the substantive crime.21

     Here, the Commonwealth is not able to prove beyond a

reasonable doubt either that the defendant murdered Peter or

that the defendant failed to murder him.   We agree, as does the

Commonwealth, that in these circumstances, the defendant cannot

be convicted of murder.   But "requiring the government to prove

failure as an element of attempt would lead to the anomalous

result that, if there were a reasonable doubt concerning whether

or not a crime had been completed, a jury could find the

defendant guilty neither of a completed offense nor of an

attempt."   United States v. York, 578 F.2d 1036, 1039 (5th

Cir.), 439 U.S. 1005 (1978).   See Gosselin, 365 Mass. at 120


     20
       The Appeals Court recently has concluded that under the
general attempt statute, "the completed substantive offense
nullifies the existence of an attempt." Commonwealth v. Coutu,
88 Mass. App. Ct. 686, 701 (2015). See Beale, Criminal
Attempts, 16 Harv. L. Rev. at 506-507. There is no need for us
to consider this issue in the present case, because, quite apart
from the fact that the general attempt statute does not apply,
the Commonwealth admittedly did not and could not prove
completion of the substantive offense.
     21
       Commonwealth v. Dykens, 473 Mass. 635 (2015), is not to
the contrary. In that case, we considered whether three
successive failures to break into a dwelling could be prosecuted
as three separate attempts. With respect to each of these
attempts, the failure served to delimit the attempt's overt act,
but the failure was not itself an element of the offense.
                                                                   19


(stating, in dictum, that requiring proof beyond reasonable

doubt that attempt failed would mean that "if there were a

reasonable doubt whether the attempt succeeded, the defendant

could not be convicted either of the completed crime or of the

attempt.   We have rejected such requirements").   See also United

States v. Rivera-Relle, 333 F.3d 914, 919-921 (9th Cir.), cert.

denied, 540 U.S. 977 (2003) (failure to complete entry into

United States was not element of offense of attempting to

reenter United States without consent of Attorney General;

discussing Federal and State decisions on whether nonachievement

must be proved as element of attempt); Lightfoot v. State, 278

Md. 231, 238 (1976) (where no joint venture theory existed,

robbery was complete, but uncertainty existed about whether

defendant himself had completed robbery, defendant charged with

attempted robbery because "failure to consummate the crime is

not an indispensable element of criminal attempt").

    Our conclusion that nonachievement of murder is not an

element of attempted murder essentially disposes of the

defendant's challenge to the judge's instructions on this crime.

The judge instructed the jury that the Commonwealth "[does not]

have to prove that the defendant caused the death of [Peter].

It's instead attempted murder, that is she had the intent with

malice and then she makes some overt act toward the murder

. . . .    Attempted murder only exists if there's not an actual
                                                                     20


murder, of course."     The judge further instructed the jury on

the element of an overt act, stating that they must find "some

actual outward physical action as opposed to mere talk or plans.

. . .     [A]n act . . . that is reasonably expected to bring about

the crime [of murder]."     We conclude that the judge's

instructions correctly explained the elements of attempted

murder.

     2.    Assault and battery charges.   The defendant challenges

her convictions of assault and battery upon a child, in

violation of G. L. c. 265, § 13J (b), fourth par. (§ 13J [b],

fourth par.); and of assault and battery upon a person with a

disability, in violation of G. L. c. 265, § 13K (e) (§ 13K [e]).

Section 13J (b), fourth par., punishes a caretaker of a child

who "wantonly or recklessly permits substantial bodily injury"

to the child,22 and § 13K (e) punishes a caretaker of a person

with a disability who "wantonly or recklessly permits serious

bodily injury" to the person with a disability.23,24   The


     22
       General Laws c. 265, § 13J (b), fourth par. (§ 13J [b],
fourth par.), provides in relevant part:

     "Whoever, having care and custody of a child, wantonly or
     recklessly permits substantial bodily injury to such child
     or wantonly or recklessly permits another to commit an
     assault and battery upon such child, which assault and
     battery causes substantial bodily injury, shall be punished
     . . . ."
     23
       General Laws c. 265, § 13K (e) (§ 13K [e]), provides in
pertinent part:
                                                                  21


defendant contends that although the Commonwealth may have

presented sufficient evidence to prove that the defendant caused

a substantial risk of death to Peter by not giving him the

prescribed chemotherapy and related medications, it did not

present evidence sufficient to prove "substantial bodily

injury."    She further argues that the judge's instructions to

the jury incorrectly defined the meaning of substantial bodily

injury.25   We agree with the defendant on both points.




     "Whoever, being a caretaker of [a] . . . person with a
     disability, wantonly or recklessly permits serious bodily
     injury to such . . . person with a disability . . . shall
     be punished . . . ."
     24
       Section § 13J (b), fourth par., concerns "substantial
bodily injury" to a "child," and § 13K (e) concerns "serious
bodily injury" to a "person with a disability." In this case,
the Commonwealth’s position is that Peter fit the definition of
"child" in the first of these statutes, and of "person with a
disability" in the second. The defendant does not argue
otherwise, and we agree. We have previously concluded that the
definitions of "substantial bodily injury" in § 13K (b) and
"serious bodily injury" in § 13K (e) are substantively the same.
See Commonwealth v. Roderiques, 462 Mass. 415, 423 n.2 (2012).
Because of this, and because the remaining provisions in the two
statutes are also substantively identical, for ease of
reference, the discussion in the text that follows considers
only the charge under § 13J (b), fourth par., but the discussion
applies equally to the charge under § 13K (e).
     25
       At trial, the defendant moved for a required finding of
not guilty on both these charges, arguing that the Commonwealth
failed to prove the defendant had caused actual bodily injury to
Peter. The trial judge denied the defendant's motion for a
required finding of not guilty, explaining that under the common
law the defendant's argument might be sound, but under the
statutory causes of action at issue proof of a substantial risk
                                                                     22


       The term "[b]odily injury" is defined in G. L. c. 265,

§ 13J (a), as a

       "substantial impairment of the physical condition including
       any burn, fracture of any bone, subdural hematoma, injury
       to any internal organ, any injury which occurs as the
       result of repeated harm to any bodily function or organ
       including human skin or any physical condition which
       substantially imperils a child's health or welfare."

The term "[s]ubstantial bodily injury" is defined in the same

section to mean "bodily injury which creates a permanent

disfigurement, protracted loss or impairment of a function of a

body member, limb or organ, or substantial risk of death."      We

previously have stated, in discussing § 13J (b), fourth par.,

that

       "[the term 'bodily injury'] defines the bodily injuries the
       Legislature intended to be punishable under the statute,
       i.e., burns, fractures, injuries to internal organs, and
       perilous physical conditions, while ['substantial bodily
       injury'] lays the foundation for greater sanctions based on
       the gravity and consequences of the bodily injury
       sustained. Read together, . . . a substantial bodily
       injury includes any substantial impairment of the physical
       condition that causes a protracted impairment of the
       function of an internal organ or a substantial risk of
       death. As it appears in the context of the statute, death
       is not an injury, but one risk of injury."

Commonwealth v. Chapman, 433 Mass. 481, 484 (2001).     See

Commonwealth v. Roderiques, 462 Mass. 415, 423 (2012)

("substantial bodily injury" under § 13J [b], fourth par.,




of death was sufficient. The jury instructions reflected the
judge's stated understanding of the law.
                                                                   23


requires risk of injury to "come to fruition in the form of an

actual injury").

     The evidence at trial permitted the jury to find, based on

Friedmann's testimony, that the defendant's failure or refusal

to give Peter the medications that were part of his treatment

plan caused an increased risk of death for Peter.    However, if

death itself does not qualify as a "bodily injury" or "serious

bodily injury" under the statute, see Chapman, 433 Mass. at 484,

neither does an increased risk of death.   The Commonwealth

asserts, however, that the defendant's withholding of

medications led to Peter's cancer returning in a more virulent

and treatment-resistant form, and that this more potent illness

was itself a "bodily injury" that, in the words of § 13J (b),

fourth par., the defendant wantonly or recklessly permitted to

occur.26

     The Commonwealth's argument fails.    Although the presence

of a stronger, more treatment-resistant form of cancer may

qualify as a "bodily injury" under the statutory definition, see

G. L. c. 265, § 13J (a) ("bodily injury" defined to include "any

physical condition which substantially imperils a child's health

     26
       The evidence that the Commonwealth appears to rely on was
the following. In responding to a question by the prosecutor as
to whether Peter's receipt of some but not all his medications
affected her ability to treat him once he relapsed, Friedmann
responded, "Yes. I believe that likely made the chemotherapy
less effective the second time around and the leukemia more
resistant."
                                                                  24


or welfare"), an opinion that a particular result is "likely"

does not appear to be sufficient to permit a finding that the

defendant's actions actually caused the more treatment-resistant

form of cancer to occur.27   Given that, according to the

evidence, even with full treatment ten to fifteen per cent of

children still succumb to the cancer, just as the Commonwealth

admittedly could not prove beyond a reasonable doubt that the

defendant's actions caused Peter's death from cancer, so it

appears that the Commonwealth would not be able to prove that

the defendant's actions caused him to relapse and become ill

with a more treatment-resistant form of cancer.

     We thus conclude that the trial evidence was insufficient

to support the defendant's assault and battery convictions under

§§ 13J (b), fourth par., and 13K (e), and those convictions must

be vacated.28   The defendant also was convicted of reckless


     27
       Section 13J (b), fourth par., punishes a caretaker who
"wantonly or recklessly permits substantial bodily injury to"
the child. The word "permits" signifies that the Commonwealth
is not required to prove the caretaker actually inflicted the
bodily injury -- failure to act when there is a duty to do so
may suffice -- but the word "permits" does not remove the
Commonwealth's burden to prove beyond a reasonable doubt the
causal connection between the caretaker's actions or nonactions
and the claimed substantial bodily injury.
     28
       In light of our conclusion, it is not necessary to
resolve the defendant's challenge to the jury instructions on
the two assault and battery charges. We agree with the
defendant, however, that these instructions appear to be based
on an incorrect reading of the (identical) definitions of
"substantial bodily injury" and "serious bodily injury" in G. L.
                                                                     25


endangerment of a child in violation of G. L. c. 265, § 13L.29

She challenged that conviction as duplicative in light of her

conviction under § 13J (b), fourth par., see Roderiques, 462

Mass. at 424, but agrees that if the conviction under § 13J (b),

fourth par., is vacated or reversed, the conviction under § 13L

may stand.

     3.    Motion for new trial:   ineffective assistance of

counsel.    Finally, the defendant claims that the judge abused

his discretion by denying the defendant's motion for a new trial

on the ground of ineffective assistance of counsel.     She argues

that counsel was ineffective in three ways:     (1) failing to

consult an independent oncologist;     (2) agreeing to order his

expert witness, Krell, to turn over his records to the



c. 265, §§ 13J (a) and 13K (a), respectively. The judge's
instructions appear to define the terms to mean "[either] bodily
injury which results in a permanent disfigurement, protracted
loss or impairment of bodily function, limb or organ, or a
substantial risk of death" (emphases added). However, we read
the statute to define "substantial bodily injury" as a "bodily
injury" that results in (1) a permanent disfigurement, or (2)
protracted loss or impairment of a bodily function, limb, or
organ, or (3) substantial risk of death. See Instruction 6.160
of the Criminal Model Jury Instructions for Use in the District
Court (2009) (reckless assault and battery causing serious
injury).
     29
          General Laws c. 265, § 13L, provides in relevant part:

     "Whoever wantonly or recklessly engages in conduct that
     creates a substantial risk of serious bodily injury or
     sexual abuse to a child or wantonly or recklessly fails to
     take reasonable steps to alleviate such risk where there is
     a duty to act shall be punished . . . ."
                                                                  26


Commonwealth's expert, Kelly;30 and (3) failing to present

evidence concerning the defendant's history with DCF.31     We

conclude that counsel's failure to consult an independent

oncologist fell measurably below the standard of "an ordinary

fallible lawyer."   Commonwealth v. Saferian, 366 Mass. 89, 96

(1974).   In the circumstances of this case, this failure

deprived the defendant of "an otherwise available, substantial

ground of defense" to the charge of attempted murder.     Id.

     a.   Background.   Represented by new counsel on appeal --

her present counsel -- the defendant filed a motion for a new

trial on June 6, 2013.     The trial judge held an evidentiary

hearing on the motion, at which three witnesses testified on

behalf of the defendant:     Kevin James, the defendant's trial

counsel; Dr. Paul Pitel, a board-certified pediatric

hematologist-oncologist; and Krell.     In addition, the affidavits

     30
       With the assent of defense counsel, a Superior Court
judge ordered information and records relating to the defendant
to be sent to the Commonwealth's expert, Dr. Martin Kelly. The
defendant's counsel directed the defendant's expert, Dr.
Frederick Krell, to comply with the order. Krell produced over
200 pages of materials, including the results and raw data from
psychological tests he had performed.
     31
       The defendant's trial counsel agreed to represent her pro
bono in the District Court at a point in time when she had been
charged only with reckless endangerment of a child under G. L.
c. 265, § 13L. Trial counsel continued to represent the
defendant in the Superior Court when she was later indicted for
attempted murder and two charges of assault and battery. This
was trial counsel's first criminal case in the Superior Court
and first criminal case in which a mental health defense was
asserted.
                                                                 27


of trial counsel and Pitel that had been filed in support of the

motion for a new trial were introduced in evidence as motion

exhibits.

    At the motion hearing, James testified that he sought funds

to retain an independent oncologist in order to rebut the

testimony of Friedmann, a key witness for the Commonwealth's

case, but later decided not to consult an oncologist on the

grounds that (1) an effort to establish that the failure to

medicate was harmless would be unsuccessful, especially with the

Commonwealth's opportunity to cross-examine the expert; and (2)

seeking to belittle Friedmann's testimony would reflect poorly

on the defendant.   At the motion hearing, Pitel, chair of the

department of pediatrics at Nemours Children's Clinic in

Jacksonville, Florida, testified that he has treated children

with lymphoblastic lymphoma since 1978.

    Consistent with his affidavit,32 Pitel testified at the

motion hearing that the professional literature makes clear that


    32
         Pitel stated in his affidavit:

         "[I]t is unfortunately not rare to care for children
    whose parents do not fully comply with the demands of
    extended chemotherapy protocols. Many of these parents
    find the regimen too difficult and burdensome to follow,
    and some cannot understand the risks associated with a
    failure to do so. This occurs despite all efforts by
    hospital and clinic staff to educate, urge compliance, and
    warn of the risks of noncompliance. . . . Over the years,
    I have helped care for a significant number of patients
    whose parents were less than compliant. More than a few of
                                                                    28


the adherence rates33 for many long-term drug therapies are no

more than forty or fifty per cent.   Noncompliance with cancer

treatment protocols is lowest when the patient is an adolescent,

but a major concern with pediatric populations generally;

adherence is a considerable issue with drugs that are used to

treat an asymptomatic illness or to prevent illness.     Based on

his experience, Pitel offered several reasons parents do not

adhere to the treatment protocol:    the immediate side effects of

the medications are much more obvious than any benefits;

noncompliance often has no visible detrimental effect, and thus

parents do not fully appreciate the consequences; when the child

appears healthy parents often stop complying, especially when

the child resists the medications; and parents may not believe

the treatment will work and do what they think will work.    Pitel

opined that, in this case, the defendant's personal

circumstances signaled a higher risk of noncompliance, and the

defendant likely did not understand that her lapses in

compliance could be lethal, especially given that, according to

his medical records, Peter achieved remission early on and his

doctor ordered repeated holds on chemotherapy and told the

defendant that Peter was doing well throughout the treatment.


     these parents were personally limited and/or had children
     with complex disabilities and/or emotional disorders."
     33
       The degree of adherence varies and may include partial
adherence or erratic adherence.
                                                                    29


    In denying the defendant's motion for a new trial, the

judge concluded that defense counsel "chose the best possible

defense and presented it well at trial."     The judge dismissed

the importance of Pitel's testimony, reasoning that Pitel agreed

with Friedmann's treatment plan and Friedman's stated opinion

that compliance is critically important.     The judge noted that

Pitel would be unable to opine about the defendant's own intent

or state of mind.   Although recognizing that the literature

exploring reasons for noncompliance with similar chemotherapy

protocols could have been instructive to trial counsel, the

judge concluded that such "general education would not have

accomplished 'something material to the defense.'"

    b.   Standard of review.   When evaluating an ineffective

assistance of counsel claim, we consider "whether there has been

serious incompetency, inefficiency, or inattention of counsel --

behavior of counsel falling measurably below that which might be

expected from an ordinary fallible lawyer -- and, if that is

found, then, typically, whether it has likely deprived the

defendant of an otherwise available, substantial ground of

defence."   Saferian, 366 Mass. at 96.   "In cases where tactical

or strategic decisions of the defendant's counsel are at issue,

we conduct our review with some deference to avoid

characterizing as unreasonable a defense that was merely

unsuccessful" and ask whether the decision was manifestly

unreasonable when made (citation omitted).     Commonwealth v.
                                                                    30


Kolenovic, 471 Mass. 664, 673-674 (2015).    Strategic choices

made before a complete investigation are reasonable "[only] to

the extent that reasonable professional judgments support the

limitation on investigation" (citation omitted).    Commonwealth

v. Lang, 473 Mass. 1, 14 (2015).    With respect to our review of

the denial of a motion for a new trial, we recognize that the

decision to allow or deny such a motion rests within the sound

discretion of the motion judge, and we give deference to the

factual findings of that judge, particularly when he or she was

also the trial judge.   See Commonwealth v. Pillai, 445 Mass.

175, 185 (2005).

    c.   Discussion.    Trial counsel's decision not to consult

with an independent oncologist appears to have been a strategic

decision.   However, given the salient and essentially undisputed

facts about Peter's life-threatening cancer, his excellent

prognosis with continued treatment, and the defendant's failure

to give the prescribed medications over a long period of time,

it was clear that the defendant's intent would be the key issue

at trial.   The Commonwealth's theory was that, unlike other

parents, the defendant failed to administer life-saving

medications to her son, and she lied about her noncompliance;

the only explanation for this behavior was that she intended to

kill her son.   In the circumstances, it was patently

unreasonable for the defendant's counsel not to consult with a

qualified pediatric oncologist to explore the disease, its
                                                                     31


treatment, and in particular whether experience dealing with

other caretaking parents might help to identify explanations

other than an intent to kill the child for a parent's decision

not to give medications.     See Commonwealth v. Haggerty, 400

Mass. 437, 442-443 (1987).

    The information provided by Pitel in his affidavit and his

testimony at the motion hearing concerning the noncompliant

behavior of parents with children suffering from cancer show

that parental noncompliance is not uncommon.     Many parents do

not adhere to the treatment protocol for a number of reasons

other than an intent to kill the patient, including a patient's

healthy appearance during remission, a parent not wanting to

make the child sicker, and the absence of apparent adverse

effects resulting from noncompliance.     Such evidence would have

been significant in the defendant's case, offering an

explanation for the defendant's conduct that placed her squarely

within a group of parents of children similarly situated with

Peter, and thereby offering an explanation for her conduct that

was understandable and within some available norm of parental

behavior -- and not, as the Commonwealth argued, the actions of

a woman who "seethed" with anger at her former husband and

intending to kill her son as an act of retaliation against the

father.   As such, this evidence had the potential of raising a

reasonable doubt about the existence of the defendant's criminal
                                                                  32


intent.34,35   See Commonwealth v. Martin, 427 Mass. 816, 822

(1998) (affirming allowance of motion for new trial on grounds

of ineffective assistance where defendant's trial counsel failed

to call expert to challenge Commonwealth's vulnerable cause-of-

death theory; new evidence on cause of death "could have raised

a reasonable doubt in the minds of the jury").    See also

Commonwealth v. Roberio, 428 Mass. 278, 281-282 (1998), S.C.,

440 Mass. 245 (2003) (defendant's trial counsel's failure to

investigate defendant's lack of criminal responsibility and call

expert witness constituted ineffective assistance of counsel;

defendant's motion for new trial should have been allowed).     And

quite apart from testifying at trial, an expert such as Pitel

could have educated and informed the defendant's counsel about


     34
       Although a pediatric oncologist could not have testified
on direct examination about the substance of the literature
supporting the opinions he or she had derived from personal
experience with children and their parents, see Department of
Youth Servs. v. A Juvenile, 398 Mass. 516, 532 (1986), the issue
of literature might well have been raised on cross-examination,
and then available for defense counsel to explore further on
redirect examination; the issue might have been raised as well
if the prosecutor challenged the credibility of the witness's
opinion.
     35
       There was no "inhibiting conflict" between Pitel's
testimony and the theory of the defendant's defense. See
Commonwealth v. Martin, 427 Mass. 816, 822 (1998). The defense
sought to portray the defendant as an overwhelmed single mother,
overburdened by the circumstances, who did not want to make her
son even sicker. Peter went into remission early on in
treatment, and the lapses in medications appeared to make no
difference in his health. Pitel's testimony at the motion
hearing supported the defendant's proffered explanation at trial
of her motivation and conduct.
                                                                  33


the disease, the treatments, and what the medical literature

teaches concerning treatment compliance by parents --

information that would have greatly aided defense counsel in his

cross-examination of Friedmann and other medical personnel from

the hospital.

     In rejecting the potential value and significance of

Pitel's testimony, the judge focused particularly on the fact

that Pitel agreed with Friedmann's treatment protocol,36 that

Pitel could not testify to the defendant's own state of mind,

and that the defendant repeatedly had lied.   These reasons are

not persuasive.   With respect to the lying, Pitel's motion

testimony suggests he would have been able to offer noncriminal

reasons why a person in the defendant's circumstances might lie

about withholding medications.   And although Pitel certainly

could not testify about the defendant's own state of mind, he

could explain, based on his own professional knowledge and

experience, the common patterns of behavior of parents who fail

to comply in cancer treatment and whether the defendant's

reported behavior was consistent with those patterns.   See,

e.g., Commonwealth v. Dockham, 405 Mass. 618, 628 (1989) (expert

testimony concerning general patterns of behavior of sexually

abused children).   See also Commonwealth v. Pike, 431 Mass. 212,

221-222 (2000) (expert testimony on battered woman syndrome).

     36
       The fact that Pitel agreed with Friedmann's treatment
protocol is irrelevant to the introduction of evidence regarding
the treatment compliance of parents.
                                                                    34


     In sum, we conclude that trial counsel's decision to forgo

any consultation with an oncologist was manifestly unreasonable,

and likely deprived the defendant of a substantial ground of

defense on the central disputed issue in the case, namely, the

defendant's intent.     To deny her motion for a new trial would be

unjust.   The defendant is entitled to a new trial on the charge

of attempted murder.37

     Conclusion.    The judgment of conviction on the indictment

charging a violation of G. L. c. 265, § 13L, is affirmed.     The

judgments of conviction on the indictments charging violations

of G. L. c. 265, § 13J (b), and G. L. c. 265, § 13K (e), are

vacated, and judgment is to enter for the defendant on each

indictment.   The order denying the defendant's motion for a new

trial on the indictment charging a violation of G. L. c. 265,

§ 16, is vacated.     The case is remanded to the Superior Court

for further proceedings consistent with this opinion.

                                      So ordered.




     37
       In light of our conclusion, we comment briefly on the
defendant's remaining two claims of ineffective assistance.
With respect to the ineffectiveness claim concerning Krell's
records, in light of Commonwealth v. Hanright, 465 Mass. 639,
644 (2013), the disclosure of Krell's records to the
Commonwealth's expert does not appear to have been
inappropriate. As for the ineffectiveness claim relating to the
defendant's history with the Department of Children and
Families, trial counsel's strategic decision to forgo evidence
of that history was not manifestly unreasonable.
