Commonwealth v. Dunn ( 2017 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11502
COMMONWEALTH vs. WILLIAM DUNN.
Norfolk. May 5, 2017. - October 12, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, & Cypher, JJ.1
Homicide. Armed Assault with Intent to Murder. Insanity.
Evidence, Insanity, Expert opinion, Credibility of witness.
Witness, Expert, Credibility. Practice, Criminal, Capital
case, Mistrial, Verdict, Instructions to jury.
Indictments found and returned in the Superior Court
Department on January 15, 2008.
The cases were tried before Kenneth J. Fishman, J.
Alan Jay Black for the defendant.
Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.
GANTS, C.J. On November 2, 2007, the defendant struck
Robert Moore multiple times with a baseball bat in the basement
of Moore's home, killing him, and then attacked his daughter-in-
law, Nancy Moore, with the baseball bat and a shod foot when she
1
Justice Hines participated in the deliberation on this
case prior to her retirement.
2
went downstairs to look for him, nearly killing her. A Superior
Court jury convicted the defendant of murder in the first degree
on the theory of extreme atrocity or cruelty for his killing of
Robert,2 and of various indictments for his brutal attack of
Nancy, including armed assault with the intent to murder.3 The
issue at trial was not whether the defendant committed these
acts; his attorney admitted that he did so in his opening
statement. The issue was whether the Commonwealth proved beyond
a reasonable doubt that he was criminally responsible for his
actions.
The defendant presents five claims on appeal: (1) that the
trial judge abused his discretion in denying a motion for a
mistrial after the Commonwealth's expert witness commented on
the credibility of the defendant or the defendant's expert
witness; (2) that the conviction of armed assault with the
intent to murder should be reduced to assault with the intent to
murder because that is how the verdict slip characterized the
indictment; (3) that the judge's instruction to the jury
describing what would happen if the jury found the defendant not
guilty by reason of lack of criminal responsibility created a
2
We refer to each member of the Moore family by his or her
first name to avoid confusion.
3
The defendant also was found guilty on indictments
charging mayhem, assault with intent to maim, assault and
battery with a dangerous weapon, and assault and battery causing
serious bodily injury.
3
substantial likelihood of a miscarriage of justice; (4) that the
absence of a jury instruction regarding the effects of drugs on
the defendant's criminal responsibility created a substantial
likelihood of a miscarriage of justice; and (5) that we should
exercise our authority under G. L. c. 278, § 33E, to grant the
defendant a new trial or reduce his conviction of murder in the
first degree to murder in the second degree or manslaughter
because the verdict was not consonant with justice. We affirm
the defendant's convictions and conclude that the defendant is
not entitled to relief under G. L. c. 278, § 33E.
Background. Because the defendant contends that the murder
verdict was not consonant with justice, we describe the evidence
at trial in some detail, focusing on the evidence regarding the
defendant's criminal responsibility.
1. Evidence of the crime. The defendant worked as a
foreman at a small irrigation company that installs landscape
irrigation systems for homes and small commercial properties.
As foreman, his job was to design the irrigation system to be
installed at the customer's property and to install it. On the
morning of the events at issue, the defendant was the foreman
for the installation of an irrigation system at Robert's home in
Needham. The defendant arrived early to design the installation
and later was joined by a fellow employee, Steven Erickson, who
assisted the defendant with the installation, which involved
4
laying the piping for the system and installing heads, valves, a
control clock, and a timer. When Erickson arrived, driving the
company's truck, the defendant was planting fluorescent flags in
the backyard to "stake out" the irrigation system. Erickson
testified that there was nothing unusual about his conversation
with the defendant that morning. When the defendant and
Erickson took a break, Robert came to the back yard to bring
them cookies and milk. Moore's grandson, James, was also there,
painting the side of the house.
Around mid-morning, Michael White, the coowner of the
irrigation company, came to the site to check on the progress of
the installation. The defendant and Erickson had completed
about eighty per cent of the job by the time White arrived.
White testified that the defendant "appeared fine" and was not
acting bizarrely or unusually. White also said that Robert was
joking with the men about how he should have just painted his
lawn green. White did not stay long and left sometime between
11 and 11:30 A.M.
One of the final remaining tasks was the installation of
the irrigation system's control clock and timer inside the home.
Erickson usually installed the device, but on this occasion the
defendant wanted to perform the job. Robert opened the bulkhead
door to the cellar so that the defendant could enter the home
and install the control clock and timer. The installation
5
usually took around fifteen minutes, but Erickson noted that it
seemed to be taking the defendant "quite a while" to install the
control clock, so he knocked on the bulkhead door. The
defendant answered but did not open the door.
At 11:23 A.M., Robert telephoned his son from his home
number in the kitchen and asked for the name of the "head guy"
of the irrigation company. Robert's son had recommended the
company to his father, but he could not recall the name of the
owner when speaking with his father that morning. A person
speaking from the kitchen on the first floor could be heard by a
person in the basement, but there was no evidence confirming
that the defendant heard what Robert had said in this telephone
call. A digital forensics State police officer testified that
between 11:30 and 11:45 A.M., Robert's computer was used to
perform search inquiries for different irrigation and lawn care
Web sites.4
At around noon, Erickson asked James to open the bulkhead
door to see why the defendant was taking so long to install the
control clock and timer. James jogged through the house and
into the cellar, where he passed the defendant, unlocked the
4
The defendant's close friend, Sean Clancy, did some work
as a subcontractor for the irrigation company that employed the
defendant. In the spring or fall of 2007, the defendant was
very angry that Clancy had spoken directly with Michael White,
one of the coowners, rather than use the defendant as the
intermediary. Clancy testified that the defendant "just did not
want me to talk to Mike White."
6
bulkhead door, and continued outside; James did not see any
blood in the cellar. The defendant followed James outside.
James described the defendant as "kind of irritated or agitated"
after he came out of the cellar. The defendant twice walked
directly under the ladder James was working on, and asked,
"Where is the old man?" James replied that he did not know.
Erickson said the defendant "looked normal" when he emerged
from the cellar, but that he was "definitely sweating" and was
"shoving rubber gloves down his pants"; the installation of the
control clock and timer did not require the wearing of gloves.
Erickson asked the defendant what he wanted for lunch, and
Erickson left to travel to Dedham to purchase lunch.
Nancy, James's mother, arrived at the home at around 12:30
P.M. She asked James whether he had seen his grandfather, and
he said, "No." Nancy looked through the home and noticed that
the basement door was open. She walked down the stairs to the
cellar and saw the defendant, who asked her if he could use the
bathroom. When she turned to go back up the stairs to show him
one, the defendant grabbed her with an arm around her neck and
started punching her continuously in the head. Nancy "tried to
fight" and remembered "twisting around and just trying to fight,
and . . . yelling." The last thing she remembered before losing
consciousness was seeing the defendant "stomping on [her] face."
7
James finished painting, put away his supplies, and went
into the home to wash up. While he was washing his hands, he
heard a moaning sound coming from the basement. When he reached
the bottom of the stairs, he saw his mother lying face down,
near a "bloody baseball bat," with so much blood in her hair and
face that he did not recognize her. He then saw his grandfather
on the floor in the utility room of the basement, with a large
open gash in his skull, lying in a pool of blood; a mop was in
the pool of blood. James, fearing for his life, grabbed the
baseball bat, ran out of the house, and asked two women walking
on the street to "call 911." The defendant was standing in
front of the house and asked James, "What do you want to call
911 for? We didn't do nothing." The defendant "took off" as
James tried to speak to the two women who were telephoning 911.
One of the two women described the defendant's appearance as
"very, very red and sweaty"; the other testified that the
defendant looked "really dazed and confused." Both of the women
said that, after the defendant looked toward them, he ran away
from the house, and they did not see him again.
The State police canine unit responded to the emergency
call at approximately 1 P.M., and quickly launched a search of
the surrounding area. At approximately 3:45 P.M., while
searching through a marshy area near Route 128 and the commuter
railroad, a State trooper came upon the defendant, who was
8
"[lying] in a depression in the ground" and had "pulled
vegetation over himself so that he was partially obscured from
view." The defendant stood up as the trooper approached and,
ignoring the trooper's commands, began to struggle with the
canine, who had bitten him on the arm. The defendant soon
surrendered and was placed under arrest.
As the defendant was being transported to the police
station, helicopters hovered above, and the defendant asked, "Is
this all over the news?" A different officer testified that he
overheard the defendant telling his wife on the telephone at the
police station, "I'm in a heap of trouble here. This is
important."
At the police station, the defendant waived his Miranda
rights and agreed to speak with the police in a video-recorded
interview. He told the police that he "just blacked out," and
had no recollection of the incident, or of entering or leaving
the house.
Nancy's injuries were severe. She suffered a subgaleal
hematoma and a "blowout fracture" to the orbital bone around her
right eye. According to the radiologist who treated her, these
injuries were consistent with being stomped in the face or
struck by a bat. Weeks after the attack, Nancy suffered an
acute stroke related to her injuries. At the time of trial, she
9
continued to suffer memory loss and paralysis on the side of her
face.
A medical examiner concluded that Robert died as a result
of blunt force trauma to the head, consistent with being struck
by a blunt object; the pathologist said she had never seen such
injuries caused by hands alone. Robert also suffered several
broken ribs as well as bruising and abrasions on his arms and
legs. The pathologist opined that Robert did not suffer an
"instant death," and that "the actual physiologic cause" of
death was "just a culmination of all the trauma that his head
received."
There was compelling evidence that the defendant had tried
to clean the cellar after killing Robert. A sweatshirt, paper
towels with red-brown stains, and Robert's eyeglasses were found
in a cardboard box in the basement. Two mops with red-brown
stains were near his body. Testing that could reveal the
presence of blood stains that cannot be seen by the human eye
showed "transfer stains" on the floor and in the sink,
indicating that blood had once been on those surfaces and that
efforts had been made to remove them by cleaning. The defendant
apparently had cleaned up the blood on the floor so well that
James did not see any blood when he jogged past to open the
bulkhead door. One rubber glove that belonged to the Moore
family and had been in the basement was later found in the
10
company truck that Erickson had brought to the home; Robert's
deoxyribonucleic acid (DNA) was found on the glove.5 Testing
revealed the presence of blood in the defendant's vehicle, which
remained parked outside the home. The keys to his vehicle and a
drill he used to install the control clock and timer were never
found.
2. Evidence regarding criminal responsibility. It was
undisputed at trial that the defendant was for many years a
hardworking man, a good husband, and a devoted father to his
three sons, especially his oldest son, who is autistic.
When the defendant was fourteen, his sister, who suffered
from schizophrenia, committed suicide by lighting herself on
fire.6 The defendant since childhood has had a seizure disorder,
which he managed with medication.
In 2001, while an irrigation business that the defendant
had started after leaving White's irrigation company (and which
later failed) was facing significant financial difficulties, he
began seeing a therapist, who prescribed him Klonopin to treat
his anxiety. His financial troubles did not end when the
defendant returned to work at White's irrigation company. At
the time of the incidents on November 2, 2007, a lien had been
5
The other glove of the pair was missing from the basement
and was never found.
6
No expert at trial offered the opinion that the defendant
suffered from schizophrenia.
11
placed on his home for failure to repay a loan and, as testified
to by his wife, the family was living "week to week."
The first indication of possible mental illness occurred at
a Christmas dinner in 2006 with the defendant's extended family
at his sister's house, when the defendant became so upset about
a comment directed at his older son that he abruptly ordered his
family to walk out of the dinner.
His mental health problems became more apparent in the
spring of 2007. He told his close friend, Sean Clancy, that he
had discovered "insider trading" on the Internet, and that there
were two stock brokers who were aware that the defendant had
uncovered their scheme, who "kn[e]w everything about" the
defendant, and who "were [not] fooling around." He told his
wife that he had stumbled on a Web site he was not supposed to
have found, and that people were "after him." He said that
these people were trying to kill him, and that they would also
kill his wife and their children. The defendant discussed his
fears about these people with Clancy "every day." At one point,
Clancy discovered that the defendant had disassembled his entire
home computer. When Clancy asked why, the defendant responded,
"I've got to find out where they're getting in." His wife
testified that the defendant thought he saw messages flashing
across the screen of their television and on a bumper sticker on
a vehicle that he saw on the highway.
12
On a few occasions in 2007, the defendant told his wife
that people were following him. One morning in July, 2007, the
defendant was sitting with Clancy in Clancy's truck drinking
coffee when a vehicle approached, and the defendant suddenly
crouched down to the floor of the truck and began screaming at
Clancy to drive away. As the vehicle came close, Clancy
realized the driver was an older woman, but the defendant had
covered his face with his hands and then quickly left the truck.
When Clancy tried to ask the defendant about the incident, he
did not want to talk about it.
The defendant was hospitalized after an incident that
occurred at the end of August, 2007. The defendant had come
home from work "very anxious and scared," and insisted that
someone had been following him. When his son showed them a
digital video disc (DVD) he had received from a neighbor about
the Middle East, the defendant was convinced that the DVD
contained a secret message. When his wife tried to explain to
him that he was not making any sense, he slapped her (which he
had never done before), pushed her to the ground, and begged her
to please listen to him, saying that the family had to watch the
DVD or they would be killed. He said that nobody could leave
the house or use the telephone or Internet. She managed to calm
him down by agreeing to watch the DVD, and then she ran out of
the house and telephoned 911 from a neighbor's home.
13
Paramedics arrived and transported the defendant to Norwood
Hospital, but he walked away from the hospital and could not be
found. At 5 A.M. the next morning, Norwood police found him in
a cemetery. He was holding a rock in his hand and talking about
plutonium that he claimed was buried in the cemetery and the
dangers arising from the September 11, 2001, attack. He was
transferred to the secure psychiatric ward at Newton-Wellesley
Hospital, where he was given a diagnosis of psychotic disorder
not otherwise specified. He spent five days in the ward, where
he was prescribed an antipsychotic medication, in addition to
Klonopin. He was released from the hospital on September 5 and
began receiving treatment from clinicians at Riverside Community
Health Center. As he adjusted to the new medication, his wife
described him as "very foggy all the time . . . and almost
childlike in a way." He returned to work approximately two
weeks after leaving the hospital.
The defendant was hospitalized a second time after an
incident that occurred in mid-October, 2007. He had not slept
for twenty-four hours, so his wife went to check on him in the
middle of the night. She found him in the kitchen, having
removed all of their knives and laid them on the counter. While
she was on the telephone with the defendant's doctor, the
defendant told her, "I took a fist full of pills." She checked
14
his bottle of Klonopin and discovered that approximately thirty
pills were missing. She took him to Norwood Hospital.7
At the hospital, the defendant told the doctors that he was
doing well, but was drinking fourteen cups of coffee per day.
The doctor who examined him noted in his report that the
defendant's thought process was coherent with "[n]o looseness of
association or flights of ideas." The doctor's report stated
"the patient believably denied any suicidal thoughts . . . the
patient's thought content did not indicate any delusions,
paranoia, or hallucinations," and the defendant was "very clear"
in explaining that taking the pills was a "poor judgment call."
The doctor noted that the defendant's wife did not feel he
needed to be hospitalized and was not concerned about his safety
at home. The doctor recommended he decrease his coffee intake
in order to improve his sleep and prescribed him an
antidepressant that is particularly helpful for sleep. He was
released from Norwood Hospital on October 21. The defendant
returned to work the next week.
The defendant's mental condition appeared to stabilize
after his release from his second hospitalization. On the
weekend of October 27-28, the defendant and his wife took a trip
to Providence, Rhode Island, for her birthday, and "he seemed
7
The medical records reflect the defendant's apparent
overdose of Klonopin medication but make no mention of the
removal of the knives onto the kitchen counter.
15
happier" and was not paranoid. On November 1, the day before
the incident, the defendant worked the entire day with White,
doing winterizations. White testified that the defendant bought
him lunch and was "in a good mood." White discussed with him
the possibility of the defendant taking over White's irrigation
business after White retired. The defendant saw his therapist
that day at Riverside Community Health Center, who reported that
the defendant said he was "feeling much better and sleeping
better" and seemed "much calmer and relaxed [and h]e is
beginning to open up more and talk about himself."
The defense presented two expert witnesses who offered
testimony regarding the defendant's mental health. Dr. Charles
Carroll, director of forensic services at Bridgewater State
Hospital (Bridgewater), opined that the defendant "has a major
mental illness" and that "the central feature of his major
mental illness is thinking that is not based in reality." Dr.
Carroll, however, spoke on the basis of his interactions with
the defendant at Bridgewater, and did not complete a criminal
responsibility evaluation because the defendant declined to
participate in an evaluation. Dr. Carroll's assessment was that
the defendant was not "forthcoming" because of "non-reality-
based ideas, psychotic ideas that he had, that his family was in
danger and that if he talked about the things that were on his
mind that this would put his family in further danger, and he
16
was protecting his family by not talking." In Dr. Carroll's
opinion, it was unlikely that the defendant actually blacked out
and did not remember what occurred on the day of the incident.
Dr. Keith Ablow opined that the defendant was suffering
"with both major depression and with psychotic disorder not
otherwise specified" on the day of the alleged crimes. He
offered the opinion that the defendant could not distinguish
right from wrong that day or conform his behavior to the
requirements of the law. In contrast with Dr. Carroll, Dr.
Ablow's opinion was based in part on what the defendant told him
about the defendant's thinking on the day of the killing: that
he recalled that Robert mentioned having retired from working
for International Business Machines (IBM), that there was a
terrible conflict between IBM and Hewlett-Packard Corporation,
and that, as described in Dr. Ablow's notes, "Hewlett-Packard
might be empowered as a corporation and that could change the
balance of power in the world."
The Commonwealth offered the expert testimony of Dr. Alison
Fife in rebuttal. Dr. Fife opined that the defendant had the
capacity both to appreciate the wrongfulness of his conduct and
to conform his conduct to the law on the day of the alleged
crimes. Although Dr. Fife agreed with Dr. Ablow's diagnosis
that the defendant suffered from psychotic disorder not
otherwise specified, she emphasized that "there are very
17
effective treatments for psychosis today" and a person with such
disorders can exhibit free will. Her conclusion was that the
defendant's psychosis had been well treated with medication
after his second hospitalization, that he showed no signs of
psychosis or delusions on the day of the killing, and that it
was not possible that he somehow "snap[ped] into" a delusional
psychosis when he entered the cellar of the victim's home. In
reaching her opinion, she weighed heavily the therapist's
assessment of the defendant during his visit on the day before
the killing and the defendant's "level of organization" on the
day of the killing, declaring that she knew from her experience
that an individual actively suffering from psychosis "would not
have been able to carry out those usual activities in that
organized a fashion." She also found significant the
defendant's efforts to clean up the scene of the killing and to
hide the victim in the utility room in the basement which, along
with his attempted flight from the scene, suggested that the
defendant appreciated the wrongfulness of what he had done and
was capable of conforming his conduct to the law. In addition,
she found significant that he said nothing to the police about
any delusions or the conspiracy he believed he was thwarting and
instead told the police that he had "blacked out" and had no
memory of the events, which she described as "a convenient and
18
often-repeated excuse for behavior" in the absence of a
psychosis.
Discussion. 1. Dr. Fife's testimony regarding
fabrication. When asked whether her opinion was affected by the
defendant's statements to Dr. Ablow that Robert's prior
affiliation with IBM triggered the attack, Dr. Fife answered,
"They don't necessarily affect it other than I think that
they're fabricated." After the defendant objected, the judge
asked Dr. Fife to clarify whether she meant that the defendant's
statements were fabricated or that Dr. Ablow's report was
fabricated. When she answered, "I'm not sure," the judge
instructed the jury to "disregard the last response." The
prosecutor then reframed the question, and asked Dr. Fife to
assume that the statements were made by the defendant to Dr.
Ablow. After the judge denied the defendant's objection to the
question, Dr. Fife answered that she considered the statements
in "that they were so far afield from anything that I had heard
from the defendant." The judge, on hearing this answer, sua
sponte sustained the earlier objection and told the jury to
disregard the response. The defendant later moved for a
mistrial, contending that Dr. Fife had deliberately "directly
commented" on Dr. Ablow's credibility. The judge denied the
motion but immediately instructed the jury that they "are to
disregard any testimony about the fabrication of statements" and
19
"may not consider any comments on the credibility of any other
witness in this case," adding that the evaluation of witness
credibility "will be ultimately your determination."
The defendant claims that the judge abused his discretion
in not granting a mistrial. He did not. The judge multiple
times told the jury to disregard Dr. Fife's answers to these
questions, and we presume that the jury complied with his
direction. See Commonwealth v. Alcantara, 471 Mass. 550, 556
(2015), quoting Commonwealth v. Watkins, 425 Mass. 830, 840
(1997). The judge at sidebar said that he recognized that Dr.
Fife was unwilling to accept the prosecutor's assumption that
the defendant made these statements, either because she did not
believe they were made or did not believe they were true, and he
was going to cut off any further questions from the prosecutor
on this subject to avoid the risk that Dr. Fife would tell the
jury what the defendant had said to her regarding his commission
of the offense. See G. L. c. 233, § 23B (in criminal trial, "no
statement made by a defendant therein subjected to psychiatric
examination pursuant to [G. L. c. 123, §§ 15 or 16,] for the
purposes of such examination or treatment shall be admissible in
evidence against him on any issue other than that of his mental
condition, nor shall it be admissible in evidence against him on
that issue if such statement constitutes a confession of guilt
of the crime charged"); Blaisdell v. Commonwealth, 372 Mass.
20753, 763 (1977) (construing word "confession" in G. L. c. 233,
§ 23B, "to include inculpatory statements constituting
admissions short of a full acknowledgement of guilt"). The
judge ably addressed this dilemma and avoided undue prejudice
through his rulings and prompt instructions to the jury. He
acted well within his discretion in denying the defendant's
motion for a mistrial.
2. The verdict slip error characterizing the armed assault
with intent to murder indictment as assault with intent to
murder. The indictment charging the defendant with armed
assault with the intent to murder was attached to the verdict
slip, but the verdict itself asked the jury to find the
defendant not guilty, not guilty by reason of lack of criminal
responsibility, or guilty of "assault with intent to murder."
After the jury returned their verdicts, the judge noted the
error in the verdict slip and asked the defendant if he wished
to object to the verdict on that indictment. Defense counsel
said he would like to take some time to think about it and,
after a recess, moved to vacate the conviction because the
verdict slip was missing the word "armed." The judge denied the
motion, concluding that the error was akin to a "scrivener's
error." He noted that the jury were instructed only as to armed
assault with the intent to murder and that, when he went over
21
the verdict slip with them, he described the charge as armed
assault with the intent to murder.
The judge did not err in denying the motion. We recognize
that the long-standing general rule of law is that "[t]he only
verdict which can be received and regarded, as a complete and
valid verdict of a jury, upon which a judgment can be rendered,
is an open and public verdict, given in and assented to, in open
court, as the unanimous act of the jury, and affirmed and
entered of record, in the presence and under the sanction of the
court." Commonwealth v. Harris, 23 Mass. App. Ct. 687, 692
(1987), quoting Lawrence v. Stearns, 11 Pick. 501, 502 (1831).
The strict application of this general rule is "a safeguard
against mistakes, and to assure that the public has confidence
in the administration of justice, . . . on occasion with the
effect of defeating a jury's probable intent." Commonwealth v.
Andino, 34 Mass. App. Ct. 423, 426 (1993). We also recognize
that in similar circumstances the Appeals Court in Harris, supra
at 689-693, held that the spoken verdict of assault with the
intent to murder must stand even though the indictment charged
armed assault with the intent to murder, the judge instructed
only as to armed assault with the intent to murder, and the jury
found the defendant guilty of a separate indictment of assault
and battery by means of a dangerous weapon.
22
But the general rule is not without exception. See
Commonwealth v. McCarthy, 37 Mass. App. Ct. 113, 117 (1994)
("This general rule has been applied strictly, but not without
limit"); Andino, 34 Mass. App. Ct. at 426 ("[s]ome limits" to
general rule "have been recognized"). In Harris, 23 Mass. App.
Ct. at 693 n.9, where the general rule was applied, the Appeals
Court declared that the jury's spoken verdict may not have been
a mistake because "[i]t was open to the jury to find that the
defendant had committed an unarmed assault on the victim
immediately prior to the armed assault relied on by the
prosecution to support the indictment." In contrast, where it
is certain that the jury intended to convict on the greater
charge and where the evidence would not permit a guilty verdict
on the lesser charge, the conviction of the greater offense has
been allowed to stand despite the erroneous description of the
charge in taking the verdict. See McCarthy, supra at 118.
Here, we have no doubt that the jury intended to convict
the defendant of armed assault with the intent to murder rather
than the lesser included offense of assault with the intent to
murder. The judge provided careful jury instructions, both
orally and in writing, that made clear that the jury needed to
find that the defendant was armed in order to convict on this
indictment. The judge did not provide the jury with a lesser
included offense instruction, no doubt because the evidence did
23
not reasonably permit such an instruction; given Nancy's
injuries, the jury could not reasonably have found the defendant
guilty of assault with the intent to murder if the jury had not
also found that the defendant was armed with a baseball bat or a
shod foot. The jury clearly found that the defendant was armed
because they convicted the defendant of assault and battery with
a dangerous weapon. If there were any reasonable possibility
that the jury intended the lesser verdict, we would give the
defendant the benefit of the lesser conviction. But there is no
such reasonable possibility here.
3. The jury instruction explaining what happens if the
jury were to find the defendant not guilty by reason of lack of
criminal responsibility. In his final instructions to the jury,
the judge explained to the jury "what happens to a defendant if
he is found not guilty by reason of lack of criminal
responsibility."8 The defendant made no objection to this
8
The judge's instruction is set forth below:
"I'm now going to instruct you on the consequences of
a verdict of not guilty by reason of lack of criminal
responsibility. As I previously instructed, your decision
should be based solely on the evidence and the law of this
case without regard to the possible consequences of the
verdicts. You may not consider something -- you may not
consider sentencing or punishment in reaching your
verdicts. However, I am going to tell you what happens to
a defendant if he is found not guilty by reason of lack of
criminal responsibility. The Court may order the defendant
to be hospitalized at a mental facility for a period of
[forty] days for observations and examination. During this
24
instruction. On appeal, however, he claims that the judge erred
in not making it more clear to the jury that, if they found the
defendant not guilty by reason of lack of criminal
responsibility, the defendant could be committed for the rest of
his life, and this error created a substantial likelihood of a
miscarriage of justice.
In Commonwealth v. Chappell, 473 Mass. 191, 205 (2015), we
determined that the model jury instruction about the
consequences of a verdict of not guilty by reason of lack of
criminal responsibility, which was derived from Commonwealth v.
observation period or within [sixty] days after a verdict
of not guilty by reason of lack of criminal responsibility,
the District Attorney or other appropriate authorities may
petition the Court to commit the defendant to a mental
health facility or to Bridgewater State Hospital.
"If the Court then concludes that the defendant is
mentally ill and that his discharge would create a
substantial likelihood of serious harm to himself or
others, the Court may grant the petition and commit him to
a proper mental health . . . facility or to Bridgewater
State Hospital for six months. Periodically the Court
reviews the orders of commitment. If the person is still
suffering from a mental illness or defect and is still
dangerous, he is kept in that facility and depending on his
condition, the type of facility is considered.
"If the person is no longer mentally ill and can
resume mental life -- excuse me -- and can resume a normal
life, he is later discharged. The District Attorney must
be notified of any hearing concerning whether the person
may be released, and the District Attorney may be heard at
any such hearing. However, the final decision on whether
to recommit or release the person is always made by the
judge. This is what happens if you find the defendant not
guilty by reason of lack of criminal responsibility."
25
Mutina, 366 Mass. 810, 823 & n.12 (1975) (Mutina instruction),
should be modified to inform the jury, "There is no limit to the
number of such renewed orders of commitments as long as the
defendant continues to be mentally ill and dangerous; if these
conditions do continue, the defendant may remain committed for
the duration of his [or her] life." Chappell, supra at 205-206,
209 (Appendix). We declared that this addition to the Mutina
instruction would better explain to the jury "what protection
they and their fellow citizens will have if they conscientiously
apply the law to the evidence and arrive at a verdict of not
guilty by reason of [lack of criminal responsibility]." Id. at
206, quoting Mutina, supra at 821-822. The defendant
essentially claims that the judge erred in giving the Mutina
instruction rather than the Chappell instruction.
In Chappell, 473 Mass. at 205, although we provided a
provisional jury instruction to be given in the future, we
concluded that the judge did not err in giving the Mutina
instruction. The trial in this case occurred four years before
our opinion in Chappell. The judge here, like the judge in
Chappell, did not err in giving the Mutina instruction that, at
the time of trial, was the governing model jury instruction.
4. Absence of a jury instruction regarding the effects of
drugs on the defendant's criminal responsibility. In
Commonwealth v. DiPadova, 460 Mass. 424, 435 (2011), issued two
26
months before the trial in this case, we declared that, where
the defendant's criminal responsibility was at issue and where
there was evidence that the defendant had used drugs prior to
the murder, "the defendant was entitled to an instruction
informing the jury that, if his mental illness alone had caused
him to lack criminal responsibility at the time of the murder,
any drug use that increased or aggravated his condition did not
negate his lack of criminal responsibility." The defendant did
not request such an instruction or object to its omission. On
appeal, however, he claims that the absence of such an
instruction created a substantial likelihood of a miscarriage of
justice.
We conclude that the judge did not err in omitting this
instruction. There was no evidence at trial that the drugs
prescribed to manage his mental illness "increased or aggravated
his mental illness." In the absence of such evidence, the
defendant was not entitled to this instruction.
5. Review under G. L. c. 278, § 33E. Where a verdict of
murder in the first degree is contrary to law or the weight of
the evidence, or where it is otherwise not "consonant with
justice," we have the authority under G. L. c. 278, § 33E, to
order a new trial or to direct the entry of a lesser degree of
guilt. See, e.g., Commonwealth v. Gould, 380 Mass. 672, 680
(1980), quoting Commonwealth v. Davis, 380 Mass. 1, 15 n.20
27
(1980). The defendant contends that we should exercise that
authority in this case primarily because "[i]t is clear that the
only motive for the killing is psychotic and paranoid delusions
and ideations produced by the defendant's [documented] mental
illness." We recognize the profoundly perplexing nature of this
killing: a defendant whose psychosis with paranoid delusions
appeared to be successfully managed by medication and who
appeared to be able to function normally in accomplishing the
complex task of designing and installing an irrigation system
suddenly bludgeoned to death an elderly customer with a baseball
bat in what appears to be an inexplicable rage. But "the power
of this court under § 33E is to be exercised with restraint,"
Gould, supra, and this case calls for such restraint because,
after carefully reviewing the record in this case, we conclude
that the verdict is not contrary to the weight of the evidence
or otherwise not consonant with justice.
The jury were entitled to credit Dr. Fife's expert opinion
that the defendant had the capacity to appreciate the
wrongfulness of his conduct, and there was compelling evidence
in support of that opinion. He took great care to clean up the
scene of the crime after the killing and to move Robert's body
to the utility closet; he assaulted and intended to kill Nancy
when he thought that she would discover the crime; and he
28
immediately fled the scene in an attempt to avoid apprehension
when he realized that James had found Nancy in the basement.
The jury were also entitled to credit Dr. Fife's expert
opinion that, despite the defendant's mental illness, he was
capable of conforming his conduct to the law when he committed
these brutal crimes, and there was substantial evidence in
support of that opinion. With the medication he was prescribed,
he appeared to be fully functional during the weekend before the
killing (when he traveled to Providence with his wife), on the
day before the killing (when he spent the day working with his
boss and saw his therapist), and on the day of the killing (when
he designed and installed an irrigation system). The jury
reasonably could credit Dr. Fife's testimony that a person would
not have this degree of functionality and then suddenly "snap
into" a delusional psychosis when he went into the cellar to
install the control clock and timer. We cannot be certain what
triggered the defendant's rage, but the Commonwealth need not
establish the defendant's motive for the killing. There was
good reason to discredit the defendant's explanation for his
conduct that he gave to Dr. Ablow, and the jury reasonably could
have rejected Dr. Ablow's opinion to the extent it rested on
this explanation.
Conclusion. We affirm the judgments of conviction and
decline to exercise our authority under G. L. c. 278, § 33E, to
29
order a new trial or to reduce the conviction of murder in the
first degree.
So ordered.