The victim was pronounced dead on arrival at the hospital from a blunt impact to her abdomen that occurred within hours of death. On the way to a hospital, the mother asked the defendant what could have happened, and the defendant said it might be “internal injuries.” The mother attempted to give her cardiopulmonary resuscitation (CPR). The defendant found the victim the next morning in her room and screamed to the mother that she was not breathing. The victim became sleepy and her mother put her to bed. The mother told the defendant that she was going to take the child to the doctor, but the defendant told her that there was nothing seriouslywrong. She gave the victim Tylenol and something to drink, and the victim vomited again. After a short time, the mother heard a noise and noticed that the victim felt warm and had vomited. The mother returned and put the victim to bed. The victim and her mother went to the defendant's apartment and shortly thereafter, at approximately 7:45 P.M., the mother asked the defendant to watch the victim while she went to a tanning salon. She had returned from an overnight visit with her father and spent the day with her mother and various family members and friends. On May 19, 1992, the day before her death, the victim was in good health. She and the victim had been doing so in the days prior to the child's death. The victim's mother and the victim would sometimes sleep at the defendant's apartment. We summarize the evidence in the light most favorable to the Commonwealth, but reserve certain details for the discussion of the issues the defendant raises on appeal. 278, § 33E.ġ. Facts and procedural history.
We conclude there is no reason to exercise our power under G.L. We affirm his convictions of felony-murder and rape and determine that it is unnecessary to address his conviction of murder on the theory of extreme atrocity or cruelty.
278, § 33E, and either reduce the murder verdict to manslaughter or order a new trial.
The defendant further urges that we exercise our power under G.L.
#Colloquy baby trial
He raises four issues on appeal, claiming that (1) the trial judge erred in denying the defendant's motion for required findings of not guilty of rape and felony-murder because there was insufficient evidence of penetration to convict him of rape (2) the clerk did not give a colloquy allowing each juror to express assent to the felony-murder conviction (3) the defendant's invocation of his constitutional right to remain silent was impermissibly used against him and (4) because the jury instructions regarding third prong malice were defective, a substantial likelihood of a miscarriage of justice exists. The victim was the two year old daughter of the woman with whom he was living. The defendant, Jeffrey Fowler, was convicted of rape of a child with the use of force and of murder in the first degree on theories of extreme atrocity or cruelty, and felony-murder. Cypher, Assistant District Attorney, for the Commonwealth. Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ. Supreme Judicial Court of Massachusetts,Bristol.ĬOMMONWEALTH v.
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