COMMONWEALTH vs. EMILE FRATUS, JR.

ABRAMS, J. On July 21, 1977, the defendant fatally struck Shawn Gillett, an infant approximately five and one-half months old. In 1980, [Note 1] after trial by jury, the defendant was convicted of murder in the second degree on an indictment

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charging murder (comprehending murder in the first degree). In accordance with Commonwealth v. Davis, 380 Mass. 1, 16-17 (1980), we transferred his appeal to this court on our own motion. Fratus argues error in the admission of photographs. He also asks that we exercise our power under G. L. c. 278, Section 33E, to direct the entry of a verdict of guilty of manslaughter. We affirm the conviction. We conclude that there is no reason for us to exercise our power under G. L. c. 278, Section 33E, to direct the entry of a finding of a lesser degree of guilt or to grant a new trial.

We summarize the evidence. Shawn Gillett was born on January 30, 1977. A pediatrician saw Shawn on March 31, 1977, and May 25, 1977, and on each visit, the baby appeared to be healthy and within normal bounds. The doctor did not observe any bruises. On May 25, 1977, the baby's mother married the defendant and moved into an apartment with the defendant and the baby.

On July 21, 1977, in the early evening, the defendant pushed Shawn's chair to the floor while the baby was seated in it. At approximately 9 P.M., the baby began to cry while in his crib in the bedroom. The defendant and Shawn's mother were watching television in the living room. The defendant rushed into the bedroom, lifted Shawn from the crib and struck him "hard" on the side of the head. [Note 2] The baby fell back and struck the other side of his head on the crib. The mother and the defendant left the room. The mother returned to the room a few minutes later. She observed that the child was not breathing and called the defendant.

The defendant tried to resuscitate the baby but was unable to revive him. The defendant instructed the mother to call an ambulance and to say that the baby "fell off the bed." An ambulance arrived and took Shawn and his mother to the hospital. The defendant did not accompany the baby and his wife. A neighbor observed the defendant

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running down the street in the opposite direction from the ambulance.

At the hospital, doctors noticed a number of bruises on Shawn's body, and summoned the police. When an officer arrived, Shawn's mother told him that Shawn "fell off the bed." The officer observed bruises on the victim's mother, as well as on Shawn. He inquired about the mother's bruises. She told the officer her husband had bruised her "fooling around," and that he "plays rough." Photographs were taken of the mother's bruises, as well as of Shawn. [Note 3] Later that evening, the officer interviewed the defendant, who also told him that the baby had fallen off the bed.

Aside from the fatal injury, the medical examiners found at least ten bruises on Shawn's face, eight bruises on his chest, one on his right leg, one on his left elbow, and one on his back. These bruises were different sizes and varied in age; some were recent and some were up to three weeks old. These bruises were not fatal. The cause of Shawn's death was a blunt force injury to the head. The force necessary to cause the fatal injury was severe and "not consistent with a fall from a bed."

The defendant claims error in the admission of two photographs of Shawn as they "had no evidentiary value, and were unnecessarily inflammatory and prejudicial to the defendant." The photographs were relevant on the cause of death and on the issue of malice. "The fact that photographs may be inflammatory does not render them inadmissible if they possess evidential value on a material matter." Commonwealth v. Stewart, 375 Mass. 380, 385 (1978), and cases cited.

The defendant claims the evidence did not warrant a finding of murder in the second degree, and pursuant to G. L. c. 278, Section 33E, he asks us to reduce the verdict to manslaughter. [Note 4] Our power under G. L. c. 278, Section 33E, is to be

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used with restraint. Commonwealth v. MacDonald, 371 Mass. 600, 604 (1976).

The defendant claims that, at most, the Commonwealth's evidence proves the defendant acted "as a result of uncontrolled anger," see Commonwealth v. Ransom, 358 Mass. 580, 583 (1971), and "indicates the use of excessive force with the element of malice missing." He therefore concludes that we should order a reduction of the jury's verdict from murder in the second degree to involuntary manslaughter. We do not agree.

" `[A] simple blow with the hand administered to a healthy adult' will not support a finding of malice afore-thought, since there is no `plain and strong likelihood that death will follow.' Commonwealth v. Mahnke, 368 Mass. 662, 702-703 & n.48 (1975), and cases cited, cert. denied, 425 U.S. 959 (1976). `But the inference would be quite different if the same assault and battery were committed on an infant of tender years'; in such a case `a slight blow on the head of a new-born infant, which, if inflicted on an adult, would be harmless, but which necessarily would endanger the life and actually caused the death of the child, is proof upon which a jury might well find a party guilty of murder.' Commonwealth v. Fox, 7 Gray 585, 588 (1856). Cf. Commonwealth v. Hicks, 356 Mass. 442, 445 (1969) (adult kicked in stomach). The jury could find that according to common experience there was a plain and strong likelihood that death would follow the defendant's blow, and could infer that he foresaw serious injury." Commonwealth v. Starling, 382 Mass. 423, 426 (1981).

We see no material difference between the facts of this case and the facts of Commonwealth v. Starling, supra. The defendant brutally struck a helpless infant. In such circumstances "there is no question of reducing the verdict below murder." Commonwealth v. Cadwell, 374 Mass. 308, 316 (1978).

Judgment affirmed.