COMMONWEALTH v. (and nine companion cases 1). (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

For the protracted abuse of K.K., M.K., and B.M.,³ a Superior Court jury convicted the defendants, Gloria Nababi and Richard Kyambadde, each of two counts of assault and battery by means of a dangerous weapon (ABDW) on a child under the age of fourteen in violation of G. L. c. 265, § 15A (c) (iv), and three counts of reckless endangerment of a child in violation of G. L. c. 265, § 13L. On appeal, the defendants raise three identical issues: (1) the evidence was insufficient to support their convictions for reckless endangerment; (2) the failure of the trial judge to provide a specific unanimity instruction on the ABDW and reckless endangerment charges resulted in a substantial risk of a miscarriage of justice; and (3) the trial judge improperly limited cross-examination such that the defendants were deprived of their right to present a defense. We conclude that the evidence was sufficient to support Kyambadde's convictions for reckless endangerment. With respect to Nababi, the evidence was sufficient to support her convictions for reckless endangerment of K.K. and M.K., but not of B.M. We reject both defendants’ second and third claims. Therefore, as to Nababi, the judgment on count 9 for reckless endangerment of B.M. is reversed, the verdict is set aside, and judgment shall enter for Nababi on that count. The remaining judgments are affirmed. With respect to Kyambadde, all judgments are affirmed.

Background. Because the defendants challenge the sufficiency of the evidence, we recite the facts the jury could have reasonably found in the light most favorable to the Commonwealth, reserving certain details for later discussion. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

When K.K. and her sister, M.K., first arrived in the United States from Uganda in 2012, they lived in a one-bedroom apartment in Waltham with their mother, Nababi, and Nababi's boyfriend, Kyambadde. K.K. was nine years old; M.K. was six years old. Nababi was rarely home, working two jobs from approximately 11 a.m. to 11 p.m. Except for certain religious obligations on Wednesdays and Sundays, Kyambadde spent most of his time at home. Shortly after K.K. and M.K. began school, Kyambadde told K.K. that “the honeymoon's over” and ordered her and M.K. to do various household chores including washing dishes, cleaning, dusting, and vacuuming. K.K. was also responsible for cooking breakfast and dinner, as well as cleaning up the kitchen afterward. When B.M. was born in 2013, K.K. was required to care for him. Despite being home quite often, Kyambadde did not help with the chores or the girls’ schoolwork.

If the chores or schoolwork were not completed to Kyambadde's satisfaction, he would physically punish them. At first, he beat K.K. and M.K. with a stick that he retrieved from outside. Kyambadde told the girls to lay prone on the ground, and he proceeded to beat them through their clothes. On occasion, K.K. would be punished for M.K.’s failure to adequately perform chores. Kyambadde beat the victims “everywhere on [their bodies]” for about an hour at a time. When they would run away to avoid these beatings, Kyambadde would follow and strike them again.

The nature and severity of the beatings escalated thereafter. Kyambadde began to strike the victims with the wooden handle of a bathroom plunger. To restrict their movement during the beatings, he would tie the victims up by their hands and feet. Although most of these beatings occurred while Nababi was at work, she would sometimes join Kyambadde in the beatings when she was home, and, in one instance, beat the victims herself. The beatings occurred almost every day in this form, leaving the victims bruised and bleeding. After beating M.K., Kyambadde had K.K. untie her.

Before B.M. was born, the family moved into a two-bedroom apartment. There, from time to time, Kyambadde instructed the victims to remove their clothing. As before, he proceeded to tie them up and beat them for up to an hour. Kyambadde threatened to beat the victims further if they cried too loudly. B.M. was present for some of the beatings. The victims were ordered to wear long sleeve uniforms to school to conceal their bruises. On occasion, K.K. and M.K. were also beaten for failing to eat moldy, leftover food.

In June 2014, the defendants and the victims attended a banquet at a church in Cambridge where Kyambadde was a preacher. When they returned home, Kyambadde, who was upset that the girls had failed to iron their uniforms and polish their shoes, retrieved scissors from the bathroom and cut their hair. He brought them to a barbershop the next day to shave off their remaining hair. After this incident, Kyambadde discovered that K.K. had thrown away spoiled soup that she was supposed to have eaten for dinner. He tied up K.K. and beat her with such severity that she had difficulty sitting down at school the following day.

On June 6, 2014, Department of Children and Families (DCF) investigator Cryselle Greenaway responded to the girls’ school in Waltham. She met with the principal and Nababi. Greenaway informed Nababi that a report of neglect and physical abuse had been filed with respect to K.K. and M.K. Greenaway further observed red welts across K.K.’s arms. Nababi was aware that K.K. had been hit with a stick but not that K.K. had marks and bruises on her body. Greenaway and another investigator went to the defendants’ apartment with members of the Waltham Police Department. She informed Kyambadde that she had spoken with K.K. about the abuse and observed welts on her arms. Kyambadde admitted to striking the victims as a form of punishment for failing to eat leftovers and because, he claimed, he caught them watching pornography. Officer Eileen Williams photographed the victims’ injuries, which included welts and bruises on K.K.’s arms, legs, back, thighs, and quadriceps, and injuries to M.K.’s thighs, legs, arm, and back.

Discussion. 1. Sufficiency. First, the defendants claim that the evidence was insufficient to support their convictions of reckless endangerment. We review this claim by considering “the evidence introduced at trial in the light most favorable to the Commonwealth, and determin[ing] whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Oberle, 476 Mass. 539, 547 (2017), citing Latimore, 378 Mass. at 676-677. “The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ ” Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 216 (2019), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016).

Pursuant to § 13L, in order to satisfy the elements of reckless endangerment of a child beyond a reasonable doubt, 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 evidence must support that the risk of injury is “a good deal more than a possibility, and its disregard substantially more than negligence.” Commonwealth v. Santos, 94 Mass. App. Ct. 558, 560-561 (2018), quoting Commonwealth v. Hendricks, 452 Mass. 97, 103 (2008). Simply put, the Commonwealth was required to prove that the defendants were “ ‘aware of and consciously disregard[ed] a substantial and unjustifiable risk that [their] acts ․ would result in serious bodily injury ․ to [the children],’ and that [their] disregard of that risk was a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” Hendricks, supra at 104, quoting G. L. c. 265, § 13L.

The defendants focus their arguments on the second and third elements. Specifically, Kyambadde argues that the evidence presented by the Commonwealth with respect to his repeated beatings did not create a substantial risk of serious bodily injury within the meaning of the statute. Nababi argues that the evidence was insufficient that she (1) acted recklessly or wantonly, and (2) created a substantial risk of serious bodily injury. We address these contentions in turn.

Contrary to Kyambadde's arguments, the evidence was sufficient to prove that he recklessly endangered all three children. From early 2012 through June 2014, he struck K.K. and M.K. in a manner that progressively increased in severity. What began as beatings with a stick turned into beatings with the wooden handle of a plunger. When the victims would run away, he would follow. Kyambadde tied the victims up by their hands and feet prior to commencing the beatings. Occasionally, at his direction, the victims were ordered to take off their clothes before they were bound and beaten. The victims were left with welts and bruises on their bodies, which Kyambadde tried to conceal from school officials with long sleeve clothing. K.K. expressed difficulty sitting down after one such beating. In spite of the defendants’ arguments that the Commonwealth failed to provide specific evidence from a medical professional regarding the effect of these beatings on the victims, we have no doubt that “a person of common intelligence would understand that” the appalling abuse inflicted by Kyambadde upon K.K. and M.K. subjected them to “a substantial risk of injury” (emphasis added). Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 260-261 (2013).

With respect to B.M., the evidence adduced at trial established that K.K. and M.K. would occasionally return home from school to find B.M., who was less than two years of age, alone at home. B.M. was left alone for at least a couple of hours in his crib or on the couch while Kyambadde was out running errands. Common sense reveals the myriad ways in which B.M. could have seriously injured himself. See Commonwealth v. Gerhardt, 477 Mass. 775, 787 (2017) (“Jurors may use their common sense in evaluating whether the Commonwealth introduced sufficient evidence to satisfy its burden of proof”). Additionally, K.K., who was only ten or eleven years of age when B.M. was born, was responsible for changing B.M.’s diaper, giving him a bath, and feeding him. Presented with these facts, the jury reasonably could have concluded that Kyambadde's grossly inadequate supervision of B.M. subjected him to a risk of serious bodily injury. Cf. Santos, 94 Mass. App. Ct. at 561-562 (Although leaving three year old child alone in front of television while defendant used bathroom did not establish probable cause for reckless endangerment, when considering course of defendant's conduct, failure to search for missing child for more than ten minutes and “assuming” child was at neighbor's house established probable cause).

Turning to Nababi's sufficiency arguments, we conclude that the evidence was sufficient to sustain her convictions of recklessly endangering K.K. and M.K. K.K. described instances in which Nababi joined Kyambadde by perpetrating the beatings in the same manner. She struck both girls for about an hour at a time. Evidence was also presented that she was aware of Kyambadde's abuse of the children.⁴ From this, the jury were entitled to infer that she subjected K.K. and M.K. to a risk of serious bodily injury within the meaning of the reckless endangerment statute. See Hendricks, 452 Mass. at 103.

Nababi's conviction for recklessly endangering B.M. is a different matter. The Commonwealth was required to prove her “subjective state of mind with respect to the risk involved. That is, [she] must be shown to have been actually aware of the risk.” Coggeshall, 473 Mass. at 670. Even in the light most favorable to the Commonwealth, the evidence did not support beyond a reasonable doubt that Nababi was actually aware of the risk posed to B.M. by Kyambadde's supervisory shortcomings. It was clear that Nababi worked long hours, including after B.M. was born. Further, there was no evidence she ever returned home to find B.M. alone. “[W]anton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another.” Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). On this record, the evidence failed to prove that Nababi acted wantonly or recklessly with respect to B.M. See Commonwealth v. Hardy, 482 Mass. 416, 426 (2019).

2. Specific unanimity jury instructions. Next, the defendants claim that the trial judge's failure to provide specific unanimity instructions to the jury on the ABDW and reckless endangerment indictments resulted in a substantial risk of a miscarriage of justice.⁵ We do not agree.

A specific unanimity instruction is required when, “on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged.” Commonwealth v. Santos, 440 Mass. 281, 284-285 (2003). “The purpose of a specific unanimity instruction is to ensure that where the jury are presented with evidence of ‘separate, distinct, and essentially unrelated ways in which the same crime can be committed,’ ․ the jurors do not conclude that they may convict the defendant without unanimous agreement on which distinct theory of the crime applies.” Commonwealth v. Gaughan, 99 Mass. App. Ct. 74, 81 (2021), quoting Commonwealth v. Arias, 78 Mass. App. Ct. 429, 432 (2010). Because the defendants neither requested such an instruction nor objected to the instructions as given, we review their absence for a substantial risk of a miscarriage of justice.

The Commonwealth charged the defendants with ABDW and reckless endangerment of K.K. and M.K. on divers dates between February 19, 2012 and June 6, 2014.⁶ In light of K.K.’s testimony, which recounted a series of beatings with a stick of varying degrees that sometimes occurred on a daily basis over a period of nearly two years, the Commonwealth presented evidence of “a continuing course of conduct, rather than a succession of clearly detached incidents” with respect to each ABDW charge. See Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 905 (1995). As in cases involving sexual assaults of children, where a victim testifies to “repeated assaults over a period of time,” Commonwealth v. Casbohm, 94 Mass. App. Ct. 613, 620 (2018), and provides “reasonably detailed descriptions of distinguishable forms of abuse,” Commonwealth v. Kirkpatrick, 423 Mass. 436, 443, cert. denied, 519 U.S. 1015 (1996), a specific unanimity instruction is not required. K.K. testified to a pattern of abuse with varying instruments perpetrated by the defendants over a discrete period of time. The judge instructed the jury as to each element of ABDW and how each count was specific to the dangerous weapon used. Therefore, “it does not appear likely that the jury verdict would have been different even if the judge had given the specific instruction now requested by the defendant[s].” Commonwealth v. Comtois, 399 Mass. 668, 677 (1987).

Moreover, even if we were to agree with the defendants that a specific unanimity instruction should have been given on the reckless endangerment charges, there was no substantial risk of a miscarriage of justice. “Such a risk will not occur if the evidence is sufficient to meet the statutory elements and withstand a directed verdict motion.” Commonwealth v. Erazo, 63 Mass. App. Ct. 624, 630 (2005). Because we have concluded, with the one exception detailed previously, that the evidence of reckless endangerment was sufficient to support the defendants’ convictions, a substantial risk of a miscarriage of justice did not result.

3. Cross-examination. Finally, the defendants claim that the trial judge improperly precluded their inquiry into K.K.’s life in Uganda on cross-examination, which they contend would have revealed her bias towards them. The Commonwealth asserts that the inquiry into K.K.’s bias was not foreclosed by the judge's ruling and, in any event, the offer of proof at trial differed from the ground argued on appeal. We agree with the Commonwealth.

“ ‘The right of a criminal defendant to cross-examine a prosecution witness to show the witness's bias, and hence to challenge the witness's credibility, is well established in the common law, in the United States Constitution,’ and in art. 12 of the Massachusetts Declaration of Rights.” Commonwealth v. Magadini, 474 Mass. 593, 604 (2016), quoting Commonwealth v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995). “A judge has ‘no discretion to bar all inquiry into the subject’ of bias where the defendant demonstrates there is such a possibility.” Magadini, supra, quoting Tam Bui, supra. “[A] defendant must ․ ‘make a “plausible showing” of alleged bias, with a factual basis for support’ ”; otherwise, the judge may restrict or entirely exclude the inquiry. Magadini, supra, quoting Commonwealth v. Sealy, 467 Mass. 617, 624 (2014). “A judge has broad discretion in circumscribing the proper scope of cross-examination.” Commonwealth v. Garcia, 470 Mass. 24, 35 (2014).

During cross-examination of K.K., and after the judge sustained the Commonwealth's objection into inquiry of whether K.K. spoke with her mother about K.K.’s Ugandan caretaker -- William -- allegedly spanking her before coming to the United States, a sidebar conference commenced. At sidebar, Nababi's counsel explained that the testimony would undermine K.K.’s credibility about the current allegations because it would demonstrate that when K.K. told Nababi about William's mistreatment, Nababi moved her to the United States. The defendants also offered the testimony for K.K.’s state of mind. The Commonwealth objected, contending that the evidence was irrelevant, hearsay, and was a prior bad act of a nonwitness. The judge sustained the objection and precluded further inquiry into K.K.’s life in Uganda.

The defendants take issue with their inability to cross-examine K.K. about William's abuse in Uganda and her living conditions in Uganda. They assert that their trial strategy was to portray K.K. as having a better life in Uganda and that when life in the United States did not live up to her expectations, she harbored bias towards them. Their claims are belied by the record. First, at the sidebar referenced above, the defendants did not offer K.K.’s testimony as proof of bias. Even construing the offer of proof in this fashion, however, the defendants were able to attack K.K.’s credibility and demonstrate her bias through Nababi's own direct examination. For instance, Nababi testified that when she learned of K.K.’s mistreatment by William, she called her brother to remove the children from that home. She also explained how she hired a driver to bring K.K. to school in Uganda -- a service of considerable cost. Also of note, the defendants could have asked K.K. on cross-examination about her expectations of life in the United States without running afoul of the judge's ruling. Simply stated, the defendants were not entirely barred from presenting evidence of William's abuse or of the victims’ lives in Uganda.⁷ See Sealy, 467 Mass. at 624-625. On this record, we cannot conclude that the judge abused his broad discretion by limiting the scope of cross-examination.

Conclusion. For the foregoing reasons, the judgments on the counts against Kyambadde are affirmed. The judgment on count 9 for reckless endangerment of B.M. against Nababi is reversed, the verdict is set aside, and judgment shall enter for Nababi on that count. The remaining judgments against Nababi are affirmed.

So ordered.

Reversed in part; affirmed in part

FOOTNOTES

3.   We refer to the three minor victims by pseudonyms.

4.   Nababi testified that she became aware the girls were spanked one time when Kyambadde discovered them watching pornography and one time when they threw out soup that was supposed to be eaten for dinner. She also admitted to once spanking K.K. for lying to her.

5.   Both defendants were acquitted of ABDW, to wit, a belt, on K.K. and M.K. A mistrial was declared with respect to the ABDW charges, to wit, a handkerchief tied to the wrists and ankles on K.K. and M.K. brought against Kyambadde. Nababi was acquitted of the ABDW charges involving a handkerchief tied to the wrists and ankles of K.K. and M.K. Therefore, the ABDW charges to which we refer involve the beatings with the stick.

6.   The defendants were charged with reckless endangerment of B.M. on divers dates between January 25, 2013 and June 6, 2014.

7.   Notably, by the defendants’ own testimony, they introduced evidence related to their care of the victims that undermined the forcefulness of the Commonwealth's allegations. This further cuts against the defendants’ argument that they were prevented from presenting a sufficient defense.