Prosecutors in the Kendall Chick case defended the conviction of Shawna L. Gatto for depraved indifference murder in a Feb. 19 appeal brief.
Assistant Attorney General Donald Macomber signed the brief, which was in response to a Dec. 31 appeal brief by defense attorney Jeremy Pratt. Gatto is appealing the verdict to the Maine Supreme Judicial Court.
Macomber responded to both grounds for appeal in Pratt’s brief.
Pratt, in his brief, argued that there was insufficient evidence to convict Gatto and that the court erred when it did not allow cross-examination regarding the credibility of Maine’s chief medical examiner, who performed Chick’s autopsy and testified at Gatto’s trial.
Five pieces of evidence prove there is sufficient evidence to sustain Gatto’s conviction, Macomber said, listing them in the brief.
Gatto was the primary caregiver for the 4-year-old Chick and was with her nearly 24/7. Stephen Hood, Chick’s grandfather and Gatto’s fiance, had a full-time job and was absent from their Wiscasset residence from 6 a.m. to 3:30 p.m. the day of her death, Macomber said.
Gatto’s statements about Chick’s behavior prior to a 911 call the day of her death were inconsistent with observations by emergency medical services and hospital staff, Macomber said.
Gatto described Chick as “fine” and “happy-go-lucky” before the call, but emergency medical technicians, a paramedic, the emergency room doctor, and forensic pathologists all said Chick would have been in severe pain from the deadly blunt-force injury to her abdomen and other physical trauma.
Gatto said Chick was breathing and talking, and did not feel cold, up until just before she called Hood because Chick was unresponsive, Macomber said in the brief. These statements contradicted testimony from Hood, who said she was cold; EMTs and the paramedic, who said she was white, not breathing, and did not show signs of life; the emergency room doctor, who said she showed signs of rigor mortis; and forensic pathologists, who said Chick could have been dead for hours at the time of the 911 call.
Before Chick’s death, Gatto was hesitant to take the girl to a doctor or even into public because she was afraid of how people would react to her bruises, according to Macomber. She was reluctant to call 911 for the same reason.
Lastly, Macomber said in the brief, Gatto did not suggest Hood was responsible for Chick’s injuries during her statements to police or her recorded phone calls with Hood from jail before the trial.
Within Macomber’s brief, he also argues that the court did not abuse its authority by limiting the defense’s questioning of Maine Chief Medical Examiner Mark Flomenbaum regarding his past removal from the same position in Massachusetts.
An in-depth discussion as to whether Flomenbaum’s removal from the Massachusetts position was justified would have led to a trial within a trial, Macomber wrote in the brief, citing the Maine Rules of Evidence.
“The fact that Dr. Flomenbaum was released from his employment with the Commonwealth of Massachusetts is no secret and has been addressed several times by this court already,” Macomber wrote in the brief.
Macomber said the judge’s written verdict includes a footnote stating the court was aware of and reviewed the decisions in all cases involving or discussing Flomenbaum’s work experience in Massachusetts. The court gave “the weight it deemed appropriate” to the information from those previous cases when determining the verdict in the Gatto case, Macomber said.
Chick died Dec. 8, 2017 of a blunt-force injury to the abdomen, according to Flomenbaum’s findings. She had also suffered blunt-force trauma to the head and numerous other injuries.
Gatto was found guilty of depraved indifference murder April 30, 2019 and sentenced to 50 years in prison June 25, 2019. She is serving the sentence at the Maine Correctional Center in Windham.
