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SJC-13408

SJC-13409

COMMONWEALTH vs. CASSANDRA L. BARLOW-TUCKER.

COMMONWEALTH vs. MATTHEW J. TUCKER.

Berkshire. October 4, 2023. - January 8, 2024.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, 

& Georges, JJ.

Homicide. Reckless Endangerment of a Child. Grand Jury. 

Evidence, Grand jury proceedings. Probable Cause. 

Practice, Criminal, Grand jury proceedings, Dismissal.

Indictments found and returned in the Superior Court 

Department on March 23, 2021.

Motions to dismiss were heard by John A. Agostini, J.

The Supreme Judicial Court on its own initiative 

transferred the cases from the Appeals Court.

Jennifer K. Zalnasky, Special Assistant District Attorney, 

for the Commonwealth.

Joshua M. Daniels for Matthew J. Tucker.

Nancy A. Dolberg, Committee for Public Counsel Services, 

for Cassandra L. Barlow-Tucker.
2

CYPHER, J. In March 2021, a grand jury returned 

indictments charging the defendants, Cassandra L. Barlow-Tucker

(Cassandra) and Matthew J. Tucker (Matthew) (collectively, 

Tuckers), with one count each of involuntary manslaughter by way 

of wanton or reckless conduct, G. L. c. 265, § 13, and reckless 

endangerment of a child, G. L. c. 265, § 13L, in connection with 

their alleged failure to seek medical treatment for Garrett,1 a 

foster child who died in their care from complications of group 

A beta hemolytic streptococcus (strep throat), bronchopneumonia, 

and a collection of fluid in one of his lungs.2 Following a 

nonevidentiary hearing, a Superior Court judge allowed the 

defendants' motions to dismiss the indictments on grounds that 

(1) the evidence presented to the grand jury was insufficient to 

justify the return of the indictments, see Commonwealth v. 

McCarthy, 385 Mass. 160, 163 (1982); and (2) the integrity of 

the grand jury proceeding was impaired by the Commonwealth's

presentation of improper evidence, see Commonwealth v. O'Dell, 

392 Mass. 445, 446-447 (1984). In so concluding, the judge 

determined that the evidence was insufficient to support a 

finding of probable cause to believe that the Tuckers were 

wanton or reckless, or knew or should have known that Garrett

1 We refer to children in this opinion by pseudonyms.

2 For ease of identification, we refer to the defendants by 

their given names.
3

was in grave danger from his illness and failed in their duty to 

seek medical care that could have saved his life; the judge also 

determined that the grand jury were impaired by the admission of 

improper evidence. The Commonwealth appealed, and we 

transferred the cases sua sponte from the Appeals Court.

On appeal, the Commonwealth argues that the motion judge 

erred in dismissing the indictments because (1) viewed in the 

light most favorable to the Commonwealth, the evidence provided

probable cause to support the indictments for involuntary 

manslaughter and reckless endangerment of a child; and (2) the 

integrity of the grand jury was not impaired where the evidence 

presented was not untruthful or misleading, and where the 

prosecutor provided limiting instructions before the grand jury 

deliberated. The Commonwealth also argues that the judge 

incorrectly applied the McCarthy and O'Dell analyses in his 

determinations.

Because we conclude that the evidence before the grand jury 

was sufficient to support the defendants' prosecution for 

involuntary manslaughter and reckless endangerment of a child

and that the integrity of the grand jury was not impaired, we 

reverse the order of the judge in the Superior Court.

1. Background. We summarize the evidence presented to the 

grand jury in the light most favorable to the Commonwealth, see 
4

Commonwealth v. Clinton, 491 Mass. 756, 758 (2023), reserving

some details for subsequent discussion.3

On the morning of February 18, 2020, Cassandra discovered 

their ten month old foster child, Garrett, nonresponsive in his 

crib. She immediately alerted Matthew to call 911. Emergency 

personnel responded but were unable to revive him.

The investigation into Garrett's death revealed that he had 

been sick with a severe respiratory cold in the weeks leading up 

to his death. Video footage from the Tuckers' home surveillance 

cameras recorded his last night alive, February 17.

a. Video footage. The Tuckers described February 17 as 

the best day Garrett had had in a long time. He had a better 

appetite, drank more fluids, and was more active than he had 

been recently.

3 The grand jury heard testimony from five witnesses over 

the course of three days: Detective Travis Cunningham, the 

detective who first arrived at the scene after Garrett's body 

had been discovered; Sergeant Ryan Dickinson, the lead 

investigator on the case; Dr. Irini Scordi-Bello, the forensic 

pathologist who conducted the autopsy; Dr. Sandeep Kumar, 

Garrett's pediatrician; and Tracy (a pseudonym), a speech 

language pathologist who asked Cassandra whether Garrett had 

seen a doctor. The grand jury also saw recorded interviews of 

Cassandra and Matthew that were conducted by the police, as well 

as surveillance video footage of the children's room where 

Garrett was discovered. The grand jurors were provided with 

recorded interviews of four Department of Children and Families 

(DCF) social workers, interviews of the Tuckers' two eldest 

children, and various medical and DCF records to assist them in 

their deliberations.
5

That night, Adam, the Tuckers' eldest son, put Garrett to 

bed.4 The motion-activated video camera in the room showed Adam 

put Garrett in his crib at 6:23 P.M. From the video recording 

(video), Garrett can be heard coughing prominently, wheezing, 

and gasping for air. Between 6:30 and 7:17 P.M., Matthew 

entered the room to put Bobby, the Tuckers' adopted son, to bed. 

In order to do so, Matthew walked by Garrett's crib to Bobby's 

bed. Matthew then left the room without checking on Garrett. 

While Matthew was in the room, Garrett continued to cough, 

wheeze, and gasp for air. At around 7:30 P.M., the video showed 

Garrett moving and making noise. It appeared that the last time 

Garrett moved was 7:34 P.M. The camera next activated at around 

12:30 to 12:44 A.M., when Adam got out of bed and left the room. 

Garrett appeared on the surveillance video in the crib,

motionless and not making any noise, in the same position he was 

in at 7:34 P.M. Adam last activated the camera at 1:44 A.M. At 

around 8:30 A.M., Cassandra discovered Garrett and contacted 

emergency officials.

When interviewed by police, Cassandra provided a detailed 

statement recalling how she had put Garrett to bed that night. 

However, the surveillance video showed that it was Adam, not 

4 At the time, the Tuckers lived with their two biological 

children -- Darlene, an eleven year old girl, and Adam, a ten 

year old boy -- as well as their two adopted children: Bobby, a 

three year old boy, and Jessica, a two year old girl.
6

Cassandra, who put Garrett into his crib. She also stated that,

at around 3 or 3:30 A.M., she observed Garrett moving and 

coughing on the surveillance video. Officers noted that this 

statement was inconsistent with the video footage, which showed 

Garrett in the exact same position from 7:34 P.M. until he was 

discovered the following morning.

b. Weeks preceding death. According to the Tuckers, 

around January 25, 2020, the household members became stricken 

with a cold that their eldest daughter, Darlene, had brought 

home from school. Garrett's symptoms included a fever, cough, 

dry diapers, noisy breathing, lethargy, mucus, and congestion. 

His fever lasted for two weeks but fluctuated depending on the 

amount of food he ate. When he was able to drink fluids, 

Garrett made a "gasping" type sound. To treat Garrett's 

illness, the Tucker's alternated giving him children's ibuprofen 

and Tylenol, one as an anti-inflammatory and one as a pain 

reliever; hydrated him by administering liquids into his mouth 

with a syringe; gave him nebulizer treatments with albuterol; 

and attempted to hydrate and feed him when he was able to 

consume meals.5 At one point, the Tuckers called a doctor about 

5 On December 10, 2019, Garrett's pediatrician prescribed a 

nebulizer with albuterol to treat a suspected environmental or 

pet allergy from Garrett's former foster placement. The DCF 

social worker who took him to the appointment, Helen (a 

pseudonym), filled the prescription and returned Garrett to the 

Tuckers with instructions about the nebulizer. Cassandra began 
7

their two year old daughter, Jessica, to inquire about treatment 

for her illness, because she also contracted a cold during this 

time and had preexisting medical conditions. Her cold symptoms 

included a cough and runny nose for a week, lethargy, and a

temperature that never exceeded 100.4 degrees. The doctor 

advised them to remain at home because he did not want to 

introduce Jessica to the germs in the doctor's office. The 

doctor provided assistance over the telephone.

While the other children recovered from the illness, 

Matthew noted that Garrett was taking longer to recuperate. 

Cassandra stated that she contacted people at the Department of 

Children and Families (DCF) in the first week of February to 

notify them that Garrett was sick and needed to see a doctor. 

According to her, Helen, a DCF social worker, took Garrett to a 

doctor's appointment in February and, after the appointment, was 

told to continue the nebulizer treatments. However, police were 

unable to locate any information to corroborate that Cassandra 

contacted DCF or that Garrett saw a medical professional. Helen 

stated she did not take Garrett to the doctor in February.

On February 14, Tracy, a speech pathologist, visited the 

home to perform services with the Tuckers' youngest daughter. 

administering the nebulizer as needed and noted that Garrett 

appeared to be responding well. By early January 2020, Garrett

was healthy and doing well.
8

While in the home, Tracy saw that Garrett was ill and struggling 

with a persistent cough and a respiratory cold. She observed 

Cassandra give him a nebulizer treatment. Tracy recalled 

inquiring whether Garrett had seen a doctor. Cassandra 

commented that if his condition worsened, she intended to call 

or bring him to a doctor. Between themselves, the Tuckers noted 

that if Garrett did not improve, they should take him to see a 

medical professional. Cassandra "half-jokingly" mentioned on 

Sunday, February 16, that they should take one of the other 

children to the doctor and have the doctor examine Garrett while 

at the office. There is no record that Garrett was seen by a 

medical professional between a December 10, 2019, doctor's

appointment and death.6

c. Autopsy and medical testimony. Dr. Irini Scordi-Bello, 

the forensic pathologist who performed Garrett's autopsy, 

6 For unknown reasons, Garrett missed a December 18 followup appointment, and an administrative transfer of his medical 

provider to a closer office was delayed and may not have 

occurred. According to Cassandra, with respect to her other 

foster children, depending on the social worker, either the 

Tuckers or the social worker would take the foster child to 

doctor's visits. In this case, according to Cassandra, either 

the assigned social worker or a social worker on the unit would 

take Garrett to his appointment. Cassandra stated that she 

never took Garrett to the doctor. If Garrett required a 

doctor's visit, the Tuckers would contact DCF to make the 

arrangements. However, based on their training, the Tuckers 

were aware that, in an emergency, they could take the child to 

the emergency room or urgent care and possessed the authority, 

delegated from DCF, to arrange for medical care on the child's 

behalf.
9

determined the cause of death to be complications from strep 

throat, bronchopneumonia, and a collection of fluid in his right 

lung. She noted that he had a "massive overwhelming infection 

in the right lung" and bacteria in his bloodstream indicating 

sepsis, which meant that the bacteria had circulated to his 

other organs. The infection caused the right lung to be 

"shrunken and collapsed," and pus filled the entire right chest 

cavity. A toxicology report indicated that no drugs or 

medications were found in his system.7

After reviewing Garrett's medical records, Scordi-Bello 

suggested that a wheezing diagnosis from December was unrelated 

to the cause of death. She did not see evidence of asthma or 

other changes that would suggest his condition at death was 

related to wheezing, asthma, or other allergies he was diagnosed 

with in December. Similarly, she did not believe a

gastrointestinal rotavirus that he had had in December was 

related to or caused the pneumonia and fluid collection in his 

lung. That Garrett was substance exposed at birth also did not 

change the determination of the cause of death. Scordi-Bello 

noted that at the time of the December 10 appointment, Garrett's 

7 Tylenol would show on a toxicology report, although 

Scordi-Bello was unsure whether ibuprofen or albuterol would. 

Even if Garrett had been administered albuterol, she did not 

believe that it would have made an impact, because Garrett's 

improperly functioning lung was not able to receive air from the 

airway that the albuterol opened.
10

doctor described equal breath sounds on both sides of his lungs. 

That finding was inconsistent with the autopsy results, which 

showed that, in the days before his death, Garrett would not 

have had equal breath sounds because no air would have been

circulating due to his shrunken right lung.

Scordi-Bello could not state definitively how the symptoms 

would manifest but believed that, in the days leading up to his 

death, Garrett would have exhibited varying degrees of fever, a 

cough, and difficulty breathing, which could "wax and wane."

Scordi-Bello added that Garrett likely was lethargic 

because of the overwhelming infection. She could not comment on 

whether he was improving or eating, but she thought that he 

would have been ill in the days prior to death. Last, she noted 

that the condition was treatable by administering antibiotics 

and draining the fluid from the lung and chest cavity.

Dr. Sandeep Kumar, Garrett's pediatrician, testified that 

he had not seen Garrett since his December 10, 2019, appointment 

when Kumar prescribed albuterol for Garrett's wheezing with 

instructions to the DCF worker to use the nebulizer for two more 

days. Kumar reviewed the autopsy report and noted that strep 

throat was rare in infants Garrett's age but treatable with 

penicillin. Kumar stated that bronchopneumonia, also treatable 

with antibiotics, commonly developed as a secondary infection 

when a child had a cold and would cause the fever to spike over 
11

101 degrees after five to seven days of illness. Based on 

Garrett's laboratory results, Kumar would expect Garrett to have

had a worsened cough, poor appetite, difficulty breathing, and 

lethargy. Kumar opined that a lay person may see a nonstop, 

persistent cough. Further, if a child presented to his clinic 

with Garrett's X-rays, Kumar immediately would have transferred 

the child to the emergency room.

Kumar also reviewed the video of Garrett in his crib the 

night before he was discovered dead. Kumar opined, based on his 

medical expertise, that the persistent, nonstop coughing was 

caused by the fluid in Garrett's chest pushing the breathing 

tube to one side, narrowing the airway and forcing Garrett to 

cough to breathe, which was also known as "air hunger." Kumar 

further opined that Garrett would have been exhibiting symptoms 

of "air hunger" for at least five to seven days. If Kumar had 

seen a patient with the "air hunger" breathing combined with 

Garrett's X-rays, Kumar would have called 911.

None of these symptoms was present when Kumar last saw 

Garrett in December.

After a grand juror requested that a portion of the crib 

video be played, Kumar stated that the nonstop cough exhibited 

in the video was a sign that Garrett's airway was about to be 

blocked, and that he was in obvious respiratory distress based 

on the heavy breathing and head nodding that would be apparent 
12

to a caregiver whether or not the caregiver had child care 

experience. If a patient presented with these symptoms, along 

with the symptoms described by the Tuckers, including fever over 

the course of two weeks, dehydration, and an unproductive cough 

that turned to a phlegmy cough, Kumar would have taken the child 

to the emergency room.

2. Discussion. "Our review of the propriety of any 

indictment is limited to determining whether the grand jury 

received sufficient evidence to find probable cause for arrest 

. . . and whether the integrity of the grand jury proceedings 

was impaired." Commonwealth v. McGahee, 393 Mass. 743, 746-747

(1985). "In considering a judge's decision to dismiss for lack 

of sufficient evidence [to support an indictment], we do not 

defer to the judge's factual findings or legal conclusions. 

. . . Rather, our review is de novo" (quotation and citations 

omitted). Clinton, 491 Mass. at 765. Likewise, because the 

judge decided the motions following a nonevidentiary hearing, we 

review the judge's decision to dismiss for impairment of the 

grand jury de novo. See Commonwealth v. Sullivan, 492 Mass. 36, 

41-42 (2023).

a. Sufficiency of the evidence. Although, in general, a 

"court will not inquire into the competency or sufficiency of 

the evidence before the grand jury" (citation omitted), 

Commonwealth v. Robinson, 373 Mass. 591, 592 (1977), a "grand 
13

jury must hear sufficient evidence to establish the identity of 

the accused . . . and probable cause to arrest him [or her]" for

the charged offense, McCarthy, 385 Mass. at 163. "Probable 

cause is a 'considerably less exacting' standard than that 

required to support a conviction [beyond a reasonable doubt] at 

trial." Commonwealth v. Stirlacci, 483 Mass. 775, 780 (2020), 

quoting O'Dell, 392 Mass. at 451. It requires only "sufficient 

facts to warrant a person of reasonable caution in believing 

that an offense has been committed." Commonwealth v. Levesque, 

436 Mass. 443, 447 (2002).

i. Involuntary manslaughter. The elements of manslaughter 

are derived from common law, as Massachusetts has not defined 

the offense by statute. See Levesque, 436 Mass. at 447. 

Involuntary manslaughter is "an unlawful homicide, 

unintentionally caused . . . by an act which constitutes such a 

disregard of probable harmful consequences to another as to 

constitute wanton or reckless conduct" (citation omitted). 

Commonwealth v. Catalina, 407 Mass. 779, 783 (1990). Wanton or 

reckless conduct usually consists of an intentional act but may 

be satisfied by an intentional omission where there is a duty to 

act. See Commonwealth v. Hardy, 482 Mass. 416, 421 (2019); 

Levesque, supra at 448. Wanton or reckless conduct "does not 

require that the actor intended the specific result of her 

conduct, only that he or she intended to do the wanton or 
14

reckless act," Hardy, supra, "which conduct involves a high 

degree of likelihood that substantial harm will result to 

another," Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).

See Commonwealth v. Dawson, 490 Mass. 521, 533 (2022). Either 

the defendant must have realized the risk of harm or a 

reasonable person, who knew what the defendant knew, would have 

realized such risk. Hardy, supra.

In concluding that the Commonwealth failed to establish

probable cause to support the indictments for involuntary 

manslaughter, the motion judge stated that the evidence was 

insufficient to believe that the Tuckers knew or reasonably 

should have known that, by caring for Garrett at home without 

seeking urgent medical care, they were putting him at risk of 

substantial harm. Our de novo review of the record convinces us 

that, viewed in the light most favorable to the Commonwealth, 

the Commonwealth presented sufficient evidence that Garrett was 

gravely ill in the weeks preceding his death and that the 

Tuckers' failure to take him to a medical professional put him 

at risk that substantial harm would result. Garrett, a ten 

month old infant, exhibited symptoms of a persistent cough, 

noisy, raspy breathing, a fluctuating fever that occasionally 

exceeded 102 degrees, dehydration, loss of appetite, lethargy,

and congestion that lasted for at least two weeks. Despite 

these symptoms, the Tuckers failed to seek medical attention. 
15

Instead, the Tuckers treated Garrett by alternating ibuprofen 

and Tylenol, hydrating Garrett with a syringe to put drops into 

his mouth, administering albuterol with a nebulizer, and 

providing extra liquids when Garrett could consume them. 

Although Cassandra stated that she contacted DCF to arrange for

a social worker to take Garrett to the doctor, no evidence was 

located to corroborate that Garrett was seen by a doctor in 

February or that Cassandra contacted DCF. Helen stated that she 

never took Garrett to the doctor in February.

The Tuckers were aware that Garrett required medical 

attention -- they joked that they should take one of their 

children to the doctor and bring Garrett along as an extra child 

to be examined. The grand jury also could infer that the 

Tuckers had the ability to recognize when to seek medical care 

but decided to forgo such care in Garrett's case. When Jessica

became ill with symptoms less severe than Garrett's, the Tuckers 

contacted her doctor for treatment advice but did not do the 

same for Garrett despite knowing that he had a pediatrician in 

Berkshire county. Additionally, Tracy commented to Cassandra 

that Garrett should be seen by a doctor. Due to their foster 

parent training, the Tuckers were aware that they could seek

emergency medical treatment, as needed.

Last, the surveillance video footage of the children's 

bedroom supports probable cause to believe that the defendants 
16

were wanton or reckless in their failure to seek medical 

attention. In the video, Garrett's pronounced breathing is

notable. Kumar testified that the sound of the persistent 

nonstop coughing was "air hunger" as Garrett struggled to 

breathe. The footage from the camera showed that Matthew walked 

by Garrett's crib, put another child to bed, and walked back out 

of the room without checking on him. From this alone, a grand 

jury could conclude that a reasonable person in Matthew's 

position would have understood the high degree of risk and 

responded to Garrett's gasping breath by seeking immediate 

medical care. The jury could infer, and Kumar testified, that 

Garrett exhibited this symptom for a period of time preceding 

the video footage and that the Tuckers were aware of the sound. 

The grand jury were permitted to discredit the Tuckers' 

statement that Garrett improved that day. Additionally, 

Cassandra's statements that she put Garrett to bed and saw him 

moving at around 3 A.M. were contradicted by the surveillance 

footage showing that Garrett had stopped moving at around 7:34 

P.M. after Adam had put him in his crib at around 6:30 P.M. The 

grand jury heard sufficient evidence to support probable cause 

for the indictment. See Commonwealth v. Riley, 73 Mass. App. 

Ct. 721, 727 (2009) ("The weight and credibility of the evidence 

is wholly for the grand jury").
17

This determination is supported by our case law. In 

Commonwealth v. Twitchell, 416 Mass. 114, 116 (1993), we 

recognized that a parent may be convicted of involuntary 

manslaughter as a result of a wanton or reckless failure to seek 

medical attention for a child in the parent's care. In so 

holding, we relied on Commonwealth v. Gallison, 383 Mass. 659, 

665 (1981), where a conviction of manslaughter was upheld after 

a parent made no effort to obtain medical help despite knowing 

that her child was gravely ill, and the evidence supported the 

determination that the parent's omission constituted a failure

to meet her duty to provide for the care and welfare of her 

child.

The Tuckers do not argue that they did not owe Garrett a 

duty of care. Rather, they argue that the evidence presented to 

the grand jury was insufficient to show that the Tuckers or 

other parents in their position would have been aware that 

caring for a child at home created a high likelihood that grave 

danger would result. However, Kumar testified that a lay person 

could see that the nonstop persistent cough was a sign of 

respiratory distress that was not normal breathing. For the 

reasons stated above, the evidence provided probable cause to 

believe that the Tuckers knew or reasonably should have known 

that Garrett required immediate medical attention.
18

"To constitute wanton or reckless conduct, as distinguished 

from mere negligence, grave danger to others must have been 

apparent, and the defendant must have chosen to run the risk 

rather than alter his [or her] conduct so as to avoid the act or 

omission which caused the harm." Welansky, 316 Mass. at 398. 

However, "[w]hether certain behavior is properly categorized as 

reckless or negligent is ordinarily left for the jury." 

Levesque, 436 Mass. at 452. Where, as here, the grand jury 

returned indictments against the defendants and there was 

sufficient evidence to support those indictments, we decline to 

substitute our judgment for the grand jury's. That is not to 

say that the evidence will be sufficient to support guilty 

verdicts at trial. See Commonwealth v. Flynn, 420 Mass. 810, 

815 (1995); Commonwealth v. Michaud, 389 Mass. 491, 498-499

(1983). Rather, we conclude only that, in the unique 

circumstances of these cases, when viewed in the light most 

favorable to the Commonwealth, the grand jury were presented 

with sufficient evidence to support indictments for involuntary 

manslaughter.

ii. Reckless endangerment of a child. A product of the 

Legislature, reckless endangerment of a child requires the 

Commonwealth to prove that the child under the age eighteen 

suffered a substantial risk of serious bodily injury and that 

the defendant wantonly or recklessly (i) engaged in conduct that 
19

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). 

Unlike involuntary manslaughter, which requires the Commonwealth 

to prove that either the defendant or a reasonable person in the 

same circumstances would have realized the gravity of the 

danger, reckless endangerment of a child requires that the 

defendant actually be aware of the risk. Hardy, 482 Mass. at 

421-422. Because we conclude that the Commonwealth presented 

sufficient evidence for probable cause to believe that the 

Tuckers were aware that their conduct created a substantial risk 

of harm and, therefore, to support indictments for involuntary 

manslaughter, the evidence also was sufficient to support 

indictments for reckless endangerment of a child. See id. at 

422.

b. Grand jury impairment. In addition to finding 

insufficient evidence to support the alleged offenses, the 

motion judge dismissed the indictments because he concluded that 

the Commonwealth improperly introduced evidence of DCF 

overpayments, financial remunerations, and Cassandra's blog 

posts with no purpose other than to portray the Tuckers in a 

negative light. On appeal, the Commonwealth asserts that the 

dismissal constitutes reversible error because the financial 

information and blog posts were relevant, were not untruthful or 
20

misleading, and did not impair the integrity of the jury, as the 

prosecutor provided limiting instructions. The Commonwealth 

argues that the motion judge erred by ignoring the established 

standard for grand jury impairment as outlined in O'Dell, 392 

Mass. at 446-447, and Commonwealth v. Mayfield, 398 Mass. 615, 

621 (1986).

Matthew filed a pretrial motion to dismiss the indictments 

on grounds that the integrity of the grand jury proceedings was 

impaired by the Commonwealth's presentation of "irrelevant" DCF 

financial records and blogs posts written by Cassandra. 

Cassandra's pretrial motion to dismiss was confined to the 

sufficiency argument. On appeal, Matthew raises one argument 

that was not raised below, and Cassandra raises multiple 

arguments that were not made in the Superior Court. Because 

their arguments differ from those made before the motion judge

and each other, we address Matthew's and Cassandra's arguments 

separately.

An indictment may be dismissed when "the integrity of the 

grand jury proceeding was impaired by an unfair and misleading 

presentation to the grand jury." O'Dell, 392 Mass. at 446-447. 

"To demonstrate that such impairment occurred, a defendant must 

establish that (1) the evidence was presented knowingly or with 

reckless disregard for its truth; (2) the evidence was presented 

with the purpose of obtaining an indictment; and (3) the 
21

improper evidence probably influenced the grand jury's decision 

to indict." Commonwealth v. Brown, 490 Mass. 171, 181 (2022), 

citing Mayfield, 398 Mass. at 621. "Reckless disregard of the 

truth leading to the presentation of false or deceptive evidence 

could also warrant dismissal of an indictment" (citation 

omitted). Brown, supra at 182, quoting Mayfield, supra.

i. Matthew's arguments. On the last day of the grand jury 

presentation, the Commonwealth presented evidence that DCF 

overpaid the Tuckers for Garrett's placement, that the Tuckers 

reimbursed DCF, and that the Tuckers received payments for 

Garrett and other adopted children in their care.

The Commonwealth argued that the evidence was relevant to 

establish that the Tuckers possessed a duty of care to Garrett.

Our review of the record establishes that Matthew has not 

demonstrated that the integrity of the grand jury was impaired 

by the evidence.

Under Mayfield, Matthew was required to demonstrate that 

the evidence was presented knowingly or with reckless disregard 

for its truth, for the purpose of obtaining an indictment, and 

probably influenced the jury. Here, the financial records were 

not false, as they accurately portrayed the financial history 

between the Tuckers and DCF. Nor were they introduced 

recklessly. Cf. Brown, 490 Mass. at 184. As a whole, the 
22

financial information was relevant to establish that the Tuckers 

possessed a duty of care to Garrett.

However, information regarding the overpayments that the 

Tuckers received and information that the Tuckers were required 

to reimburse DCF could demonstrate improper prior bad act or 

character evidence. Assuming, without deciding, that the 

overpayment information was improper, the brief mention of the 

overpayment does not rise to the level of "recklessness" to 

satisfy the first prong of Mayfield. For example, in Brown, the 

first prong was satisfied where the prosecutor introduced a 

"voluminous" number of the defendant's and a possible 

accomplice's Department of Correction records that demonstrated 

prior bad acts, proclivity to violence, and other general bad 

character of both defendants. Brown, 490 Mass. at 182-184. 

There, we agreed with the motion judge that the prosecutor "was 

reckless in introducing such improper, unfairly prejudicial, and 

irrelevant evidence to the grand jury in order to obtain an 

indictment" without first weighing the fairness of the offering. 

Id. at 184. Here, the momentary mention of the overpayments 

does not equate to the "voluminous" number of records introduced 

in Brown, and thus does not constitute recklessness under the 

first prong of Mayfield. Therefore, the integrity of the grand 

jury was not impaired by the introduction of the financial 

records.
23

Similarly, the Commonwealth's introduction of blog posts 

does not satisfy the "heavy burden" that the defendants must 

demonstrate to establish impairment of the grand jury 

proceeding. See Commonwealth v. Fernandes, 483 Mass. 1, 7 

(2019). After the presentation of the financial records, the 

Commonwealth presented six blog posts that were read to the 

grand jury; further, the Commonwealth provided the entire blog 

as an exhibit to use in the grand jury's deliberation. The blog 

posts detailed Cassandra's frustrations and experiences as a 

foster parent and, in the portion read to the grand jury, 

exhibited her experience with the MassHealth system, obtaining 

medical care for foster children, and dealing with a 

noncommunicative sick child who had serious unknown medical 

conditions. Again, under Mayfield, Matthew is unable to 

establish that the posts were presented falsely or recklessly, 

or that they likely influenced the grand jury's decision. The 

posts were relevant to Cassandra's knowledge as a foster parent

and described her experiences with the foster care system and 

medical providers. Although an argument could be made that the 

posts, written two years before Garrett arrived in the home, 

were too remote in time to be relevant, at the grand jury stage 

the rules of evidence are less stringent than at trial. See 

Commonwealth v. Kater, 432 Mass. 404, 412 (2000). Even 

assuming, without deciding, that the introduction of the 
24

entirety of the blog was improper, Matthew cannot show that the 

evidence had an impact on the grand jury's determination.

As the Commonwealth noted, by this time in the 

presentation, the grand jury had reviewed the powerful video 

footage of Garrett in his crib, had heard testimony from two 

medical experts, and had posed thoughtful questions to the 

witnesses about Garrett's illness and ability to breath. As 

there was substantial other evidence of probable cause, the 

arguably improper evidence probably did not influence the grand 

jury's decision to indict. See Commonwealth v. Hall, 485 Mass. 

145, 160 (2020); Commonwealth v. Vinnie, 428 Mass. 161, 175, 

cert. denied, 525 U.S. 1007 (1998).

Matthew argues that the presentation to the grand jury of 

the financial records and the blog posts, in contrast to the 

inclusion of interviews with DCF social workers referring to the 

Tuckers in a positive light only as exhibits on disc not 

specifically played for the grand jury, created a negative 

portrayal of the Tuckers. Similarly, in stating that the 

Commonwealth presented "one-sided" testimony by failing to 

highlight the positive statements of a social worker

complimenting the Tuckers and the social worker's statement that 

the blog posts had "nothing to do with kids," the motion judge 

classified the evidence as "exculpatory." However, this 

evidence was not "exculpatory," as it did not contradict the 
25

evidence presented by the Commonwealth and thus was not material 

evidence that the Commonwealth was required to highlight. The 

statements consisted only of information that was not a required 

element of the offenses charged. Cf. Commonwealth v. Washington 

W., 462 Mass. 204, 212-213 (2012) (evidence withheld from grand 

jury regarding necessary element of charged offense tainted 

integrity of grand jury proceedings, as evidence was material to 

question of probable cause for required element and likely 

influenced grand jury's decision to indict).

For the first time on appeal, Matthew raises a concern 

regarding the impropriety of a statement made by Sergeant Ryan 

Dickinson, the lead investigator on the case, that the motion 

judge did not address in his decision. Because this alleged 

flaw was not "seasonably asserted" at the trial court level, it 

is waived, and we review to determine whether there was error

and, if so, whether a substantial risk of a miscarriage of 

justice resulted. See Mayfield, 398 Mass. at 622 n.4; 

Commonwealth v. Gant, 51 Mass. App. Ct. 314, 320-321 (2001). "A 

substantial risk of a miscarriage of justice exists when we have 

a serious doubt whether the result . . . might have been 

different had the error not been made" (quotation and citation 

omitted). Commonwealth v. Curran, 488 Mass. 792, 794 (2021).

Sergeant Dickinson testified that, when interviewed, the 

Tuckers' eldest daughter, Darlene, stated that Garrett "had a 
26

slight cough" and was "struggling to breath." However, 

examination of the interview indicates that Darlene told police 

that Garrett was getting better and was "coughing a little bit 

and that's really what he was doing. He was having a little 

trouble breathing."8 The Commonwealth did not correct 

Dickinson's statement. The Commonwealth also omitted Darlene's 

statement that Garrett "seemed fine, and pretty cheerful."

Arguably, this is a slight mischaracterization of Darlene's

statements and could satisfy the first two prongs of Mayfield; 

however, this is a minor misstep in the context of overwhelming 

evidence concerning Garrett's condition, including the video of 

him struggling to breathe and then stopping and remaining still 

for hours. See Brown, 490 Mass. at 184-186 (Commonwealth's 

introduction of "inflammatory" evidence without responsibly 

weighing its fairness satisfied reckless behavior prong but did 

not require vacation of indictments where grand jury were 

presented with sufficient evidence to establish probable cause). 

Cf. O'Dell, 392 Mass. at 449 (distortion of defendant's 

statements by omitting key portions of statement impaired grand 

jury's understanding of facts, thereby impairing grand jury's 

integrity). Notwithstanding this possible impropriety, and that 

8 The Commonwealth did not play the interview for the grand 

jury, but provided the videos as an exhibit that the grand jury 

could review at their discretion.
27

a grand juror commented on the daughter's ability to recognize 

Garrett's health issue where Matthew seemingly could not, for 

the reasons stated above, when viewed in the context of the 

entire proceeding, the evidence probably did not influence the 

grand jury's decision to indict. Therefore, we discern no 

substantial risk of a miscarriage of justice. See Vinnie, 428 

Mass. at 175.

ii. Cassandra's arguments. For the first time on appeal, 

Cassandra raises a litany of errors that, she alleges, the 

Commonwealth committed in its presentation of evidence to the 

grand jury. In addition to the arguments raised by Matthew -–

namely, the prejudicial impact of the financial records, the 

blog posts, Darlene's statement, and the failure to highlight

positive statements from the social workers -- Cassandra asserts 

error in the Commonwealth's statement that DCF took 

"disciplinary action" against the Tuckers because of the blog, 

the presentation of the missed December 18 doctor's appointment, 

and the Commonwealth's failure to correct a witness's testimony 

about the medical condition of the Tuckers' youngest daughter. 

The combination of these errors, she argues, requires an 

affirmance of the dismissal of the indictments. Again, because 

these alleged flaws were not raised at the trial court level,

they are waived, and we review to determine whether there was 

error and, if so, whether a substantial risk of a miscarriage of 
28

justice resulted.9 See Mayfield, 398 Mass. at 622 n.4; Gant, 51 

Mass. App. Ct. at 320-321.

We begin with Cassandra's argument that the "disciplinary

action" statement presented by the Commonwealth was false. See 

Mayfield, 398 Mass. at 621-622. The prosecutor asked Sergeant 

Dickinson, "So, was there a point in time where [DCF] took 

disciplinary action against the Tuckers during their tenure as 

foster parents?" The sergeant replied in the affirmative, and 

the prosecutor asked, "And what was the reason for this 

discipline?" The witness then discussed the blog posts. 

Cassandra argues that the Commonwealth was aware that DCF did 

not take disciplinary action against the Tuckers, and thus 

presented false questions and testimony to the grand jury. See 

Commonwealth v. Salman, 387 Mass. 160, 161, 167 (1982). 

However, upon review of the transcript, the prosecutor expanded 

on the "action" taken by DCF. She asked, "So, Ms. Barlow-Tucker 

did stop posting her blog after DCF raised their concerns with 

her, correct?" The witness replied, "I believe so." Contrary 

to Cassandra's arguments, the Commonwealth represented that the 

action taken by DCF was to engage in a conversation about the 

9 For the reasons we set forth rejecting Matthew's 

arguments, Cassandra's arguments about the impact of the 

financial records, the blog posts, Darlene's statement, and the 

failure to highlight positive statements from the social 

workers, when viewed in the context of the entire proceeding, 

probably did not influence the grand jury's decision to indict.
29

appropriateness of the blog posts. There was no attempt to 

mislead the grand jury and thus no error. See Commonwealth v. 

Jewett, 442 Mass. 356, 364-365 (2004).

Next, Cassandra asserts that the Commonwealth's 

presentation of the DCF policy and Garrett's missed December 18 

follow-up appointment, along with the Commonwealth's failure to 

highlight her December 20 e-mail message to DCF checking on the 

status of the December 18 appointment, created a false and 

misleading impression that she could not be bothered to take 

Garrett to the doctor, which prejudiced her. She maintains that 

the Commonwealth misled the grand jury by focusing on portions 

of the Model Approach to Partnership in Parenting manual that 

stated the foster family agreed to schedule and keep any followup appointments, despite the Commonwealth's knowledge that the 

arrangement of who would take the child to the appointments was 

an appointment-by-appointment or case-by-case basis. We

disagree. The portion of the manual read to the grand jury 

stated that DCF delegated the authority to the foster parent to 

arrange medical care on the child's behalf. It did not state

that it was the foster parents' sole responsibility to arrange 

the medical care. In fact, the grand jury heard testimony 

indicating the opposite. The grand jury heard that the social 

worker, Helen, took Garrett to his December 10 appointment and 

knew about the December 18 follow-up appointment.
30

Although the Commonwealth did not present live testimony 

about Cassandra's follow-up e-mail message to DCF regarding the 

missing appointment, the Commonwealth did present discs

containing the information for the grand jury to review. 

Further, through the recorded police interview, the grand jury 

heard Cassandra's statements that the responsibility for taking 

the children to the doctor's appointments depended on the social 

worker, which was corroborated by Dickinson's and Kumar's

statements that a social worker took Garrett to his December 10 

appointment -- which was after Garrett began residing with the 

Tuckers on December 5. Moreover, the issue presented in these

cases was not whether the Tuckers provided follow-up medical 

care. The issue was whether they provided medical care after 

they became aware that he had a serious illness. By all 

accounts, in December 2019, Garrett was relatively healthy. It 

was not until late January or early February 2020 that he became 

seriously ill and, as the Commonwealth argues, required medical 

attention to address his ailments. That the Commonwealth did 

not highlight the December 20 e-mail message for a routine 

appointment was neither false nor misleading.

Last, Cassandra asserts that the Commonwealth's failure to 

correct a witness's testimony about the medical condition of the 

Tuckers' youngest daughter, Jessica, was prejudicial. On the 

last day of testimony, a grand juror asked the witness, a speech 
31

pathologist, whether the daughter had a certain medical 

condition. The medical condition that the juror mentioned was 

not the accurate condition that the daughter had. Nonetheless, 

the witness replied, "Yes. I mean, she has a lot of complex 

medical." The juror prodded, "And that's a respiratory issue, 

right," to which the witness responded, "I don't think, yeah." 

The juror inquired later, "So that one could assume that the 

foster parents would have some understanding of a respiratory 

ailment, toward like the sound of one?" The prosecutor gave an 

instruction that the witness provide only an answer from her 

personal knowledge or medical expertise as a speech pathologist. 

The witness responded, "Yeah. So, I wouldn't know." The 

Commonwealth did not correct the misimpression regarding the 

daughter's medical condition.

"Evidence submitted in response to a question by a grand 

juror . . . is less problematic than evidence submitted 'by the 

prosecutor's design.'" Brown, 490 Mass. at 185, quoting Vinnie, 

428 Mass. at 174-175. The grand juror's statements about the 

medical condition, and the witness's response, were inaccurate. 

Thus, arguably, the first prong of Mayfield, i.e., that false 

evidence was presented to the grand jury, was met. See 

Mayfield, 398 Mass. at 621.

However, Cassandra is unable to meet the remaining two 

prongs -- that the evidence was presented for the purpose of an 
32

indictment and probably influenced the jury. "The record is 

devoid of evidence that the . . . [witness's] responses . . . 

were presented to the grand jury in bad faith. Nor do we find 

any evidence that the factual discrepancies were knowing or 

purposeful." Commonwealth v. Mathews, 450 Mass. 858, 876 

(2008). It appeared that the witness, a speech pathologist, 

confused one ailment with another. When the prosecutor realized 

that the witness's responses to the juror's questions may have 

been at the brink of the witness's personal knowledge or 

professional expertise, the prosecutor provided a limiting 

instruction, after which the witness stated that she did not 

know the answer to the juror's question. The evidence was not 

presented for the purpose of an indictment, nor did it probably 

influence the jury. Additionally, given the evidence presented 

against the Tuckers, the statement probably did not have an 

impact on the grand jury's decision to indict, and thus did not 

create a substantial risk of a miscarriage of justice. 

Therefore, Cassandra has failed to show that the Commonwealth's 

alleged misconduct created a substantial risk of a miscarriage 

of justice. See id.

3. Conclusion. Based on the foregoing, we reverse the 

order allowing the defendants' motions to dismiss. We remand 

the cases to the Superior Court for further proceedings 

consistent with this opinion.
33

So ordered.