Commonwealth v. Traylor (Lawyers Weekly No. 11-092-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us 11-P-1238 Appeals Court COMMONWEALTH vs. MATTHEW TRAYLOR. No. 11-P-1238. Suffolk. October 2, 2012. – July 30, 2014. Present: Berry, Green, & Meade, JJ. Child Abuse. Assault and Battery. Reckless endangerment of a child. Constitutional Law, Double jeopardy. Practice, Criminal, Double jeopardy. Statute, Construction. Indictments found and returned in the Superior Court Department on September 12, 2008. The cases were tried before Elizabeth M. Fahey, J. A motion to stay execution of sentence was heard in this court by Fecteau, J. David Hirsch for the defendant. Kevin J. Curtin, Assistant District Attorney (Elizabeth A. Dunigan, Assistant District Attorney, with him) for the Commonwealth. BERRY, J. The defendant was charged under G. L. c. 265, § 13J(b), on two indictments for assault and battery upon a child by having care and custody of said child and committing an assault and battery, or wantonly or recklessly permitting or allowing another to commit an assault and battery resulting in substantial bodily injury to the child,[1] and on five indictments for assault and battery upon a child by having care and custody of said child and committing an assault and battery, or wantonly or recklessly permitting or allowing another to commit an assault and battery resulting in bodily injury to the child.[2],[3] At the time the child (the defendant’s four month old son), whom we shall call Rory,[4] sustained his injuries, he was living with his eighteen month old sister, his mother, his aunt, and his maternal grandfather. The child’s oldest injuries coincided closely with the first day of his mother’s return to work full time, after which time the defendant was the child’s primary caretaker, looking after the child at the child’s home, although the defendant did not reside there. In this consolidated appeal, the defendant argues that five of the seven convictions were duplicative; the evidence was insufficient; and a single justice of this court erred in denying his motion for a stay of execution.[5] We affirm. In this case, the particularized injuries to the child as charged in the seven indictments were as follows: Indictment 1 — substantial bodily injury Lacerated liver. Indictment 2 — substantial bodily injury Lacerated spleen. Indictment 3 — bodily injury Fractured humerus. Indictment 4 — bodily injury Fractured tibia. Indictment 5 — bodily injury Fractured iliac […]