Commonwealth v. Chappell

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SJC-11687
COMMONWEALTH vs. DESHAWN CHAPPELL.
Suffolk. September 11, 2015. - November 23, 2015.
Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.
Homicide. Deoxyribonucleic Acid. Constitutional Law,
Confrontation of witnesses, Fair trial. Evidence, Expert
opinion, Consciousness of guilt, State of mind, Insanity.
Witness, Expert. Insanity. Mental Health. Practice,
Criminal, Capital case, State of mind, Confrontation of
witnesses, Instructions to jury.
Indictment found and returned in the Superior Court
Department on March 24, 2011.
The case was tried before by Jeffrey A. Locke, J.
Stephen Neyman for the defendant.
Matthew T. Sears, Assistant District Attorney (Edmund J.
Zabin, Assistant District Attorney, with him) for the
Commonwealth.
BOTSFORD, J. On January 20, 2011, Stephanie Moulton, a
residential counsellor at a mental health facility in Revere,
was killed while she was at work. The defendant, a resident of
the facility, was charged with her murder. Principally at issue
2
at the defendant's subsequent jury trial was his mental state at
the time of the killing; the defendant presented a defense of
lack of criminal responsibility. On October 28, 2013, the jury
found the defendant guilty of murder in the first degree on the
theory of deliberate premeditation.
In his appeal from the conviction, the defendant argues
that the trial judge erred by (1) permitting the Commonwealth to
present evidence concerning deoxyribonucleic acid (DNA) testing
through an expert witness who had not performed the DNA testing
herself; (2) impermissibly limiting the direct examination of
the defendant's primary mental health expert witness; (3)
providing the jury with an inadequate instruction regarding the
consequences of a verdict of not guilty by reason of lack of
criminal responsibility; and (4) failing to limit the jury's
consideration of evidence of consciousness of guilt solely to
the issue of the defendant's mental state at the time the crime
was committed. He also requests relief under G. L. c. 278,
§ 33E. We affirm the defendant's conviction, and after a
thorough review of the record, we decline to grant relief
pursuant to G. L. c. 278, § 33E.
1. Background.1 a. The offense. We summarize the facts
the jury could have found. Prior to January, 2011, the
1
We summarize here the evidence presented at trial
concerning the killing of the victim and the defendant's
3
defendant was a resident of Perkins House, a moderate-intensity,
residential mental health facility in the Charlestown section of
Boston.2 Following an altercation between the defendant and
another resident at that facility, the defendant was transferred
temporarily to a respite program and, on January 3, 2011, he
moved to Seagull House, a low-intensity group home in Revere for
adults with mental illness.3 Seagull House staff helped
residents to obtain basic social skills and skills required for
residents eventually to be able to live on their own. Seagull
House was a "closed house," meaning that, between the hours of
9 A.M. and 3 P.M., residents were not allowed to stay inside the
facility but were expected to go to jobs or attend mental health
group programs in the community.
On January 20, 2011, despite the closed house policy, the
defendant remained at Seagull House past 9 A.M. because he was
scheduled to have a meeting at 1 P.M. with his "team," a group
that included the victim and her supervisor, Colette
criminal responsibility, reserving discussion of other evidence
to our consideration of the legal issues raised.
2
Perkins House is a residential mental health facility
operated by the North Suffolk Mental Health Association (North
Suffolk), a nonprofit organization which contracts with the
Department of Mental Health to provide mental health services to
clients of the department.
3
Seagull House is another residential mental health
facility operated by North Suffolk.
4
Deneumostier.4 Deneumostier arrived at Seagull House at
approximately 8:30 A.M. on January 20, but left shortly
thereafter to perform work-related errands. The victim also
arrived around the same time or a little later. When the
Seagull House staff member who had been in charge of the
facility the previous night left sometime after 9 A.M., the
victim and the defendant were the only two people remaining. At
approximately 10 A.M., Deneumostier spoke to the victim by
telephone; at no point during that conversation did the victim
report any concerns about the defendant's mental status.
Deneumostier tried to contact the victim by telephone again
several times before she (Deneumostier) returned to Seagull
House at 11:30 A.M., but the calls went unanswered.
When Deneumostier arrived at the facility, she heard the
fire alarm sounding, saw smoke, and telephoned the Revere fire
department or 911. When fire fighters and police officers
responded, they found no one inside the building, but they did
observe a stove with two jets left on the high setting, one of
which had smoke emanating from it; burnt paper on the kitchen
4
According to Colette Deneumostier, team meetings were
typically set up shortly after a resident moved into Seagull
House and began participating in its program. The purpose of
the January 20, 2011, meeting of the defendant's team was to
make sure the staff and he were "on the same page" and to
address "some concerns with [the defendant] cooking at night,
not doing his chore[s] all the time, [and] taking other people's
food. And . . . to talk about his goals that were being set
up."
5
floor; and charred debris in one of the bedrooms, including a
gray, left boot. In addition, there was a large amount of blood
on the floor in the hallway, which appeared to be a drag mark
that continued down the hallway and outside to the parking lot,
where a spot of blood and a blood-soaked paper towel were found.
Under the bed in the defendant's bedroom police found a crumpled
note that stated:
"Babycake, what ups? I still want to kick with you when I
get something house next year. Are you down with that?
How the kids? WB if you can. Can you go somewhere, kick
with me, movies, out to eat?"
Below that writing was a message in the victim's handwriting
that read: "Not just because I work here, but for many reasons,
this is inappropriate." Police also recovered from an office
located in the lower portion of the building a green notebook
that contained the victim's handwriting; at the time it was
recovered, the notebook was opened to a page referencing the
defendant.
At approximately 12:30 P.M. the same day, the victim's body
was found in the parking lot of St. George's Greek Orthodox
Church (St. George's) in Lynn.5 The victim's pants and underwear
were pulled down, and she was wearing one gray boot on her right
foot that matched the left boot recovered from Seagull House;
5
The defendant had lived for a short period of time in 2005
or 2006 in Lynn near to St. George's Greek Orthodox Church (St.
George's), at a time when his then girl friend lived within
walking distance of the church.
6
her left foot was bare other than a white sock. The victim's
body was covered with a bed sheet that came from the defendant's
bedroom at Seagull House. The victim had sustained sharp force
injuries to her neck and blunt impact injuries to her head,
torso, and upper extremities, but the cause of death was blood
loss attributable to a long slash wound to the neck, which
severed the sternocleidomastoid muscle, the jugular veins, and
the carotid arteries.
Video surveillance from St. George's dated January 20,
2011, showed a vehicle, identified as belonging to the victim,
enter the St. George's parking lot at approximately 11:32 A.M.,
drive to the area where the victim was later found, and leave
the parking lot at approximately 11:34 A.M. The video recording
also showed that, while the vehicle was parked, an individual
stepped out of the driver's side, made a path around the rear of
the vehicle to the passenger's side, returned to the driver's
side, proceeded once more to the passenger's side, and
eventually drove away.6
Around 1 P.M. on January 20, 2011, the defendant visited a
cousin in the Dorchester section of Boston and asked her for
some money and a place to stay for a couple of days; he was
6
A resident of a building near to St. George's testified
that at approximately 10 A.M. on January 20, 2011, she saw a man
who fit the defendant's description in the parking lot. The
witness saw the man bending over, but a snow bank blocked her
view of the man's lower body.
7
unsuccessful in securing either one. During the visit, the
defendant's cousin saw a brown stain on the defendant's pants
and a brownish or red stain on the defendant's sweatshirt, and
she noticed that he kept his hands covered with his sleeves.
When the defendant left the house, he was seen standing in front
of the victim's vehicle, which he later abandoned. After
leaving his cousin's house, the defendant went to a clothing
store where he stole a white hooded sweatshirt and a hat, and
then traveled by train to Braintree and inquired about an
extended-stay room at a hotel. He then telephoned his
grandmother, who lived in the Roxbury section of Boston, and
asked if he could come to her house, insisting that he did not
kill the victim and that his previous girl friend did,7 and later
traveled by public transportation to the building where his
grandmother lived.
Police officers were waiting for the defendant in the lobby
of his grandmother's building, his grandmother having informed
the police of his impending arrival. Following some resistance,
the defendant was arrested and taken into custody. Police
officers handcuffed the defendant and placed him in a chair in
the lobby. While the defendant was seated, and as a police
7
Prior to the defendant's telephone call, his grandmother
had seen the television news regarding the killing of the victim
in Revere. When she spoke to the defendant during his call, she
told him that she heard that the television news coverage about
the killing in Revere involved him.
8
officer was administering Miranda warnings to him, the defendant
blurted out, "The Chinese kid did it." The defendant did not
otherwise exhibit bizarre or psychotic behavior or appear or
sound delusional during the time he was in the lobby.
The defendant was transported to a Boston police station
and then to the police station in Revere. During the trip to
Revere, the defendant was quiet and calm, but crying, and when
asked if he was all right, he said that people had been chasing
him all day with guns and that he was worried for his family.
He was asked if he knew why he was in police custody, and he
responded that it was "because of what happened at the house."
Testing of a sample of blood located on fingernail scrapings
taken from the defendant's right hand revealed that the sample
contained a mixture of DNA from at least two individuals. The
major profile identified matched the defendant, and the victim
was included as a potential contributor to the minor profile.
b. The defendant's mental state and criminal
responsibility. The defendant was thirty at the time of trial
in October, 2013. According to his mother and grandmother,
while in high school, the defendant had regularly attended
school and church, was outgoing and well-dressed, played sports,
and worked at a part-time job. He graduated from high school
around 2002 and worked as a sales person at a clothing store and
then as a bar back at a convention center in Boston. Around
9
2004, his mother noticed that he no longer cared about his
appearance and that he had become withdrawn. The defendant
began to have trouble sleeping and would call his mother
regularly in the middle of the night, asking why he was hearing
voices in his head. He also stopped attending weekly family
dinners at his grandmother's house.
The defendant was first hospitalized in 2006, after he
informed his mother that he wanted to go to the hospital because
he felt that he might hurt someone. His mother took him to the
emergency department of Massachusetts General Hospital (MGH),8
and personnel at MGH kept the defendant for observation for two
to three weeks. When he was discharged, he went to live with
his grandmother. He was prescribed medication, which he
eventually stopped taking because the side effects caused him
difficulties with swallowing and speaking, and also caused
involuntary tremors. Only months after the first instance, the
defendant was again hospitalized at MGH. Around 2006, he was
diagnosed with schizophrenia9 and, in that year, became a client
of the Department of Mental Health (department). In 2006 and
2007, the defendant was hospitalized briefly at Whidden Memorial
8
The defendant's mother was employed by Massachusetts
General Hospital as an operations associate.
9
Schizophrenia is a mental illness that is long-standing in
duration, and symptoms of the illness include disorganized
thoughts and perception, delusions, and auditory and visual
hallucinations.
10
Hospital. From 2006 to 2009, the defendant lived primarily with
his grandmother. According to his grandmother, the defendant's
mental health condition deteriorated during that period, even
though he resumed taking medication. For example, the defendant
was hearing voices and he tried to get the voices out of his
head by eating large amounts of food and by trying to burn them
out. At one point, he also became too frightened to leave the
house. In 2009, the defendant was hospitalized at MGH for a
third time, after which he went to Bridgewater State Hospital
(Bridgewater) for three weeks. Around 2009, the defendant was
placed at Perkins House, and in late 2009, he was hospitalized
at Arbor Hospital. The defendant was hospitalized for
psychiatric reasons on at least five occasions between 2006 and
the day the victim was killed in January, 2011; the final
hospitalization ended in December, 2009.
David Thomson, a program coordinator employed by North
Suffolk Mental Health Association (North Suffolk), first met the
defendant when he was a resident of Perkins House. Thomson made
referrals of the defendant to the Boston Emergency Services Team
(BEST)10 in October, 2009, and in July and September, 2010,
because the defendant appeared disorganized and was
decompensating on these dates. The defendant's medical record
10
The Boston Emergency Services Team (BEST) is a team of
mental health clinicians who respond to emergency calls to
perform crisis evaluations.
11
at North Suffolk indicated that on the date of the July, 2010,
BEST referral, he had an increase in hallucinations, felt
paranoid, believed that members of the staff were listening to
his conversations, and made verbal outbursts regarding the
taking of his powers. That record also reflected that the
defendant had a history of traumatic brain injuries, lead
poisoning, and substance abuse.
Michael Swinchoski, a licensed mental health counsellor
employed by North Suffolk, first met the defendant in 2007.
Swinchoski believed the defendant suffered from disorganized
schizophrenia, and that he responded to an inner stimulus
unprompted by any external circumstances. In December, 2010,
and January, 2011, Swinchoski was working with the defendant in
an attempt to allow him to live in his own apartment, which
Swinchoski thought would help reduce the defendant's level of
stress and, thus, ameliorate his symptoms. On January 19, 2011,
one day before the killing, Dr. Daniel Debowey, a psychiatrist
employed part-time by North Suffolk, met with the defendant for
the first time; Debowey was going to become the defendant's new
psychopharmacological treater. During the meeting, the
defendant was wearing socks on his hands, which Debowey noted
because he knew that the defendant had been diagnosed with
schizophrenia or schizoaffective disorder and, at times, bizarre
elements of clothing can be a sign of relapse. However, the
12
defendant did not report any auditory hallucinations, nor did he
appear to be responding to internal stimuli, and Debowey was not
left with the impression that the defendant posed an acute risk
to himself or others.
On January 21, 2011, one day after the victim was killed,
Dr. Naomi Leavitt, a forensic psychologist employed by the
department, conducted a court-ordered competency evaluation of
the defendant. In Leavitt's opinion, the defendant failed to
understand her explanation of the fact that what he said to her
would not be confidential, and made statements not reflective of
reality including that he did not have a mother, that he had
only finished the first grade, that he had never been in a
psychiatric hospital or been diagnosed with a mental illness,
that there were "rascals" out to hurt him, and that he would
wake up in the morning with bruises on his body. During the
evaluation, the defendant became increasingly agitated. Leavitt
questioned the defendant's competence to stand trial and
recommended that he be further evaluated at Bridgewater. A few
weeks thereafter, Dr. Charles Carroll, the director of forensic
services and psychology at Bridgewater, performed two
assessments of the defendant's competence to stand trial and his
need for further hospitalization. Carroll diagnosed the
13
defendant with schizophrenia, undifferentiated type.11 Carroll
opined that the defendant was not competent to stand trial due
to thought disorganization related to his mental illness and
that the defendant required further hospitalization.
The defendant's primary mental health expert at trial was
Dr. David Werner, a psychologist. Werner met with the defendant
on three occasions and reviewed the multiple medical and
psychiatric records of the defendant, including records of all
the defendant's hospitalizations, and police reports; he also
interviewed family members. Based on his personal meetings and
review of the data, Werner diagnosed the defendant with paranoid
schizophrenia. Werner opined that the defendant suffered from
hallucinations and delusions that made him unable to distinguish
between voices in his head and memories of a person's voice, and
that the defendant had been decompensating since July, 2010.
The defendant told Werner that on January 20, 2011, he (the
defendant) heard a voice telling him to kill the victim and
therefore he choked her, and when he thought that she was still
alive, he obtained a knife and inflicted the wounds that caused
her death. Werner ultimately concluded that the defendant was
not criminally responsible for his acts on January 20, 2011,
because he could not conform his conduct to the law at that
11
Undifferentiated type means that the affected person
presents with symptoms of various other subtypes of
schizophrenia.
14
time. In Werner's view, the defendant's attempts to conceal the
crime after the fact were consistent with the conclusion that
the defendant could not conform his conduct to the law because
those attempts were so completely disorganized and ineffective.
The Commonwealth's expert witness, Dr. Martin Kelly, a
psychiatrist, conducted a criminal responsibility examination of
the defendant and opined that, at the time of the killing, the
defendant did not suffer from a mental disease or illness that
interfered with his ability to appreciate the wrongfulness of
his conduct or conform his conduct to the law. According to
Kelly, when a person actually experiences auditory
hallucinations, the hallucinations are part of a larger,
consistent, delusional system or "back story." Kelly opined
that, although the defendant claimed to experience auditory
hallucinations that caused him to kill the victim, the
hallucinations were not part of a larger delusional system and
were probably made up. Kelly's opinion was also based on his
view that the defendant's self-interested acts to try to cover
up the crime and his participation in it demonstrated that the
defendant had the capacity to appreciate the wrongfulness of his
conduct. Finally, in reviewing the records and notes prepared
by the North Suffolk mental health staff and clinicians who had
seen and interacted with the defendant from July, 2010, to
15
January, 2011, Kelly observed no decompensation by the
defendant.
Discussion. 1. Substitute DNA expert. On appeal, the
defendant argues that his constitutional right of confrontation
guaranteed by the Federal and State Constitutions was violated
when the Commonwealth's DNA expert, Lynn Schneeweis, was
permitted to testify about the results of DNA testing performed
by another analyst, Sarah Hughes, who was no longer employed by
the State police crime laboratory (crime lab) at the time of
trial and was not available to testify.12 The argument fails.
Schneeweis held a master's degree in forensic science, was
a trained DNA analyst, and also was the section manager for
forensic biology at the crime lab, overseeing six or seven of
the crime lab's units, including the criminalistics and crime
scene units and the DNA unit. Within the DNA unit, she
supervised approximately twenty-five to thirty DNA analysts.
Schneeweis described in her testimony the process by which the
crime lab conducts DNA analysis, including the specific
protocols used. Although Schneeweis did not perform the
preliminary analysis of the DNA evidence in this case, she was
the "technical reviewer" and "second reader" of the DNA analysis
performed by Hughes. A technical reviewer "is responsible for
12
Immediately before trial, the Commonwealth filed a motion
in limine to permit Lynn Schneeweis to testify, rather than
Sarah Hughes, who was in England. The judge allowed the motion.
16
. . . going through the file and making sure that everything was
done in accordance with policy and procedure, and that the
conclusions that the analyst[] draws are supported by the data
that was generated during the analysis procedure," and
Schneeweis performed this work in the present case. As the
second reader, Schneeweis independently read all the raw data
and the reports produced by Hughes, made interpretations, and
ensured that there was agreement between her findings and those
of Hughes. After explaining in some detail the specific work
that she herself had performed, Schneeweis testified to her
opinions or conclusions13 concerning the DNA that had been
collected. In particular, as stated earlier, she opined that
that the major profile identified in the DNA sample taken from
the fingernail scrapings of the defendant's right hand matched
the defendant, and the victim was included as a contributor to
the minor profile of the DNA mixture contained in this sample.14
13
With few exceptions, in his direct examination of
Schneeweis, the prosecutor asked the witness for her
"conclusions" rather than "opinions," but in the context it is
clear that the prosecutor was using the two words
interchangeably.
14
The fingernail scrapings were the only deoxyribonucleic
acid (DNA) sample that included the defendant and the victim as
possible contributors. There was no male DNA detected on swabs
and scrapings collected from the victim's underpants, and
therefore, testing of that DNA sample was ended. In addition,
samples from reddish-brown stains on the defendant's sweatshirt
and from the victim's hands were submitted for DNA analysis and
the defendant was excluded from both as a potential contributor.
17
In addition, based again on her own independent work, she
testified to her opinion that the probability of a random,
unrelated individual contributing to the DNA mixture of the
minor profile was approximately one out of 494,400 of African-
Americans, one out of 242,800 of Caucasians, one out of 314,400
of Hispanics, and one out of 3,204,000 of Asians.
At trial, the defendant objected at the outset of
Schneeweis's testimony generally on confrontation and chain of
custody grounds;15 with respect to confrontation, he argued that
Schneeweis could not testify to any opinions or conclusions
regarding the DNA evidence because she did not personally
conduct the laboratory examination and analysis of that
evidence. The trial judge overruled the objection. The parties
appear to disagree about whether the defendant's confrontation
argument on appeal is the same or different from his trial
objection -- an issue that bears on the standard of review to be
applied -- but we need not resolve the point, because the judge
committed no error in permitting Schneeweis to testify or with
respect to any of the particulars of her testimony.
With regard to a defendant's right of confrontation, as the
defendant recognizes, we have permitted experts to rely on and
testify to their own opinions based on "the results of tests,
15
The defendant does not raise any argument concerning
chain of custody on appeal, and in any event, our review reveals
no error.
18
experiments, or observations conducted by another" since
Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 532
(1986), decided nearly thirty years ago. See Commonwealth v.
Barbosa, 457 Mass. 773, 784-785, 790 (2010), cert. denied, 131
S. Ct. 2441 (2011). Cf. Commonwealth v. Nardi, 452 Mass. 379,
383, 389-391 (2008) (opinions of substitute medical examiner
based on autopsy report and photographs relating to autopsy that
he did not perform). The critical issue with respect to an
expert, including in particular a DNA analyst, is whether the
defendant is able to cross-examine the expert in a meaningful
way regarding possible flaws relating to the underlying data
that forms the basis of his or her opinion. See Barbosa, supra
at 790-791. Compare Commonwealth v. Greineder, 464 Mass. 580,
594-599, cert. denied, 134 S. Ct. 166 (2013) (defendant had
meaningful opportunity to cross-examine Commonwealth's expert
about reliability of data), with Commonwealth v. Tassone, 468
Mass. 391, 399, 401-402 (2014) (defendant could not meaningfully
cross-examine Commonwealth's expert witness where DNA was
analyzed at different laboratory in different State from where
expert worked).16
16
We have recognized that for DNA evidence in particular,
"the testing techniques are so reliable and the science so sound
that fraud and errors in labeling or handling may be the only
reasons why an opinion is flawed" (emphasis in original).
Commonwealth v. Barbosa, 457 Mass. 773, 790 (2010), cert.
denied, 131 S. Ct. 2441 (2011). See Commonwealth v. Tassone,
468 Mass. 391, 400 (2014).
19
Similar to the defendant in Barbosa, 457 Mass. at 791, and
particularly like the defendant in Greineder, 464 Mass. at 597-
598, the defendant here certainly was able to cross-examine the
Commonwealth's expert Schneeweis meaningfully about the
reliability of the underlying DNA testing procedures and data,
given that Schneeweis was the crime lab's section manager for
forensic biology and supervisor of the crime lab's DNA analysts
(including Hughes) and had been directly involved in this case
as the second reader and technical reviewer; in those capacities
she had reviewed both the raw DNA data produced by the crime
lab's analytic instruments and the DNA samples themselves. The
defendant does not claim otherwise, but asserts, based on one
statement made by Schneeweis during her direct examination,17
that all Schneeweis did was to parrot and repeat for the jury
Hughes's conclusions.
The defendant is correct that under Massachusetts law, an
expert witness is not permitted to testify on direct examination
to facts or data that another, nontestifying expert has
generated, or to the nontestifying expert's own opinion, even
though this information may be an important part of the basis of
the testifying expert's opinion. See, e.g., Greineder, supra at
592, 601-602. See also Barbosa, 457 Mass. at 785; Nardi, 452
17
Schneeweis testified that, as part of her review of
Hughes's work in this case, she, Schneeweis, determined whether
"the conclusions that were generated by [Hughes were] supported
by the data generated during the analysis procedures."
20
Mass. at 390-391; Mass G. Evid. § 703 (2015). But we see no
indication in Schneeweis's testimony, including the portion of
her testimony to which the defendant points (see note 17,
supra), that Schneeweis at any time described any part of
Hughes's DNA analysis or of Hughes's testing results, opinions,
or conclusions. Rather, Schneeweis described the analytic
process that Hughes, as an analyst in the crime lab, would have
followed, and Schneeweis's own opinions that she had formed
independently and directly from the case review and analysis she
herself had performed. Schneeweis's testimony was admissible in
all respects, and the judge did not err in admitting it.
2. Limited direct examination of defendant's primary
mental health expert. At trial, the defendant's counsel argued
that the defendant' mental health experts, and in particular Dr.
Werner, were permitted under our case law to testify on direct
examination about the contents of the defendant's medical
records, including medical diagnoses and opinions about the
defendant's mental state that the expert had read and may have
relied on in forming the expert's own opinion, even though the
records themselves were not in evidence and the defense did not
wish to introduce them in evidence.18 The trial judge
18
In support of this argument, the defendant cited to the
trial judge a number of decisions of this court, including
Commonwealth v. Greineder, 464 Mass. 580, cert. denied, 134 S.
Ct. 166 (2013); Commonwealth v. Nardi, 452 Mass. 379 (2008);
Commonwealth v. Markvart, 437 Mass. 331 (2002); Commonwealth v.
21
disagreed,19 but pointed out that if the defense introduced the
defendant's medical records in evidence as an exhibit, Werner
(and any other expert) would then be entitled to testify
concerning any opinions or other information contained in them.
The defendant's counsel chose not to introduce the medical
records, in part because of the voluminous quantity and the
difficulty he perceived in the jury's attempting to wade through
them.
On appeal, the defendant repeats the claim that it was
error to preclude Werner from testifying, during his direct
examination, to opinions about the defendant's mental illness
and mental status more generally that were contained in his
medical records. He does not focus his argument on the right of
confrontation guaranteed by the Sixth Amendment to the United
States Constitution and art. 12 of the Massachusetts Declaration
of Rights, but contends that this limitation violated his
separate right to present a defense that is protected by these
same constitutional guarantees. We disagree.
Waite, 422 Mass. 792 (1996); and Department of Youth Servs. v. A
Juvenile, 398 Mass. 516 (1986).
19
The judge explained: "I think Greineder makes clear that
the basis for one's opinion is properly the subject of cross-
examination, but is not generally admissible as part of direct
examination. . . . And if the Commonwealth does cross-examine
him on any basis for opinion[,] that then permits you on
redirect to explore whatever the sources of information that he
used were."
22
In Department of Youth Servs. v. A Juvenile, 398 Mass. at
531, we ruled for the first time that an expert may "base an
opinion on facts or data not in evidence if the facts or data
are independently admissible and are a permissible basis for an
expert to consider in formulating an opinion." However, that
case also makes clear that although an expert may rely on facts
or data that have not been admitted but would be admissible in
evidence, the expert may not testify to the substance or
contents of that information on direct examination. Id. See
Tassone, 468 Mass. at 399 ("Our evidentiary rules permit the
facts or data underlying the opinion to be elicited only by the
defendant on cross-examination and, where this door has been
opened by the defendant, by the prosecution on redirect
examination").20 The defendant points out that our cases
discussing this rule have done so in the context of a
Commonwealth expert witness, where it is the Commonwealth that
is precluded from asking the expert on direct examination to
testify to the content of data or even opinions generated or
held by others, and the cases have emphasized that the rationale
for the rule is to protect defendants from the admission of
hearsay evidence by the Commonwealth. See, e.g., Greineder, 464
Mass. at 592-594; Barbosa, 457 Mass. at 785. The defendant
20
Several cases following Department of Youth Servs. v. A
Juvenile, 398 Mass. at 531, have reaffirmed this limitation.
See, e.g., Greineder, 464 Mass. at 583-584; Markvart, 437 Mass.
at 337-338.
23
contends that, where the defendant who seeks to ask his or her
own expert witness about the bases for the expert's opinion, the
interests are different, and the defendant's ability to present
a defense is materially impaired if the expert is not permitted
to explain those bases by pointing to admissible, but not
admitted, evidence that the expert has reviewed and relied on.
The limitation just discussed on the direct examination
testimony of an expert witness is a common-law evidentiary rule
that operates in both civil and criminal cases and applies to
both sides. See Department of Youth Servs. v. A Juvenile, 398
Mass. at 531-532; Mass. G. Evid. § 703. See also Vassallo v.
Baxter Health Care, 428 Mass. 1, 15-16 (1998); Commonwealth v.
Waite, 422 Mass. 792, 803 (1996). "A defendant's right to
present a full defense . . . is not without limits," United
States v. Bifield, 702 F.2d 342, 350 (2d Cir.), cert. denied,
461 U.S. 931 (1983), and as a general rule, "does not entitle
him to place before the jury evidence normally inadmissible"
(quotation omitted). United States v. Yousef, 327 F.3d 56, 128
(2d Cir.), cert. denied, 540 U.S. 933 (2003). See United States
v. Anderson, 872 F.2d 1508, 1519 (11th Cir.), cert. denied, 493
U.S. 1004 (1989). There is no reason to apply an exception to
our evidentiary rule in this case, particularly because, as the
judge stated to the defendant's trial counsel, he would have
been able to elicit from the defense expert on direct
24
examination the opinions and other information from the
defendant's medical records in which he was interested by first
introducing those medical records in evidence. See Mass. G.
Evid. § 703. That counsel did not wish to follow this path for
strategic reasons does not transform the generally applicable
evidentiary requirement into an unconstitutional burden placed
on the defendant.21
3. Mutina instruction. At trial, the defendant asked for
a jury instruction about the consequences of a verdict of not
guilty by reason of lack of criminal responsibility (Mutina
instruction). See Commonwealth v. Mutina, 366 Mass. 810, 823 &
n.12 (1975). The defendant's request, however, was that the
judge modify the Mutina instruction that is part of the Model
Jury Instructions on Homicide (2013) in several respects; most
substantively, he sought the addition of language that would
inform the jury that if the defendant were still suffering from
a mental illness and still dangerous, "[t]here is no limit to
additional commitments [following the initial commitment of six
months] and the defendant could be committed for the rest of his
life."22 The judge did not adopt the defendant's proposed
21
Furthermore, the record shows that the defendant's expert
was permitted, on direct and cross-examination, to testify at
length to specific aspects of the defendant's medical and
treatment records.
22
The instruction proposed by the defendant's trial counsel
also would have added to the model instruction a statement that
25
instruction, but gave the model Mutina instruction. See Model
Jury Instructions on Homicide, supra at 11-12.
On appeal, the defendant argues that the judge's Mutina
instruction created a substantial likelihood of a miscarriage of
justice. He claims that by including references to the number
of days the defendant might be committed for observation and
also referencing the initial six-month commitment without a
mention of the possibility that the defendant could remain
committed for the rest of his life, the instruction was unfairly
one-sided, underestimated the likely period of commitment the
defendant would face, and was likely to distract the jury from
their essential fact-finding role. The information about the
consequences of a verdict of not guilty by reason of lack of
criminal responsibility included in the judge's Mutina
instruction, however, was accurate; the judge did not err in
giving it in response to the defendant's request for a Mutina
charge. See Commonwealth v. Johnston, 467 Mass. 674, 702-703
(2014). Nonetheless, the core of the defendant's criticism --
that the model Mutina instruction underestimates the potential,
and in the defendant's view, likely, length of confinement of a
defendant found not criminally responsible -- is one that has
if the jury found the defendant guilty of murder in the first or
second degree, he would be sentenced to State prison, not a
mental health facility. The defendant does not press the point
on appeal, and we find no persuasive reason to add this
language.
26
been raised as a matter of concern over the years, see, e.g.,
Johnston, 467 Mass. at 701-702; Commonwealth v. Callahan, 380
Mass. 821, 826-827 (1980), S.C., 386 Mass. 784 (1982), and S.C.,
401 Mass. 627 (1988); Commonwealth v. Loring, 14 Mass. App. Ct.
655, 659-660 (1982), and warrants our consideration.
In the Mutina case itself, this court did not prescribe or
even suggest any specific form of instruction. Moreover, the
court has made clear that a Mutina instruction need not mention
the specific time periods for observation or commitment that are
included in the civil commitment statutes.23 See Callahan, supra
at 827-828. A Mutina instruction is designed to avoid
unnecessary speculation by the jury and ensure that they
comprehend the possible consequences of a verdict of not guilty
by reason of lack of criminal responsibility -- and in
particular, to understand "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] -- a verdict which necessarily
requires the chilling determination that the defendant is an
insane killer not legally responsible for his acts." See
Mutina, 366 Mass. at 821-822. On reflection, we think an
instruction that omits references to specific time frames for
observation and mentions the potential for successive commitment
23
See G. L. c. 123, §§ 7, 8, 15 (b), 15 (e), 15 (f), 16, 18
(a), and 18 (c).
27
orders that could span the duration of the defendant's life in a
context that accurately reflects the law governing such
commitments may better accomplish these purposes. Accordingly,
we propose a provisional instruction along the lines set forth
in an Appendix to this opinion.24
4. Instruction on consciousness of guilt. The defendant
requested that the trial judge omit a jury instruction on
consciousness of guilt because the defense "pretty much
stipulated that [the defendant] committed the homicide" and was
"not contesting it." The judge denied the request, reasoning
that there was no actual stipulation that the defendant had
committed the homicide, and therefore the burden remained on the
Commonwealth to prove beyond a reasonable doubt that the
defendant did so, and a consciousness of guilt instruction was
therefore pertinent and appropriate.
On appeal, the defendant's argument is more nuanced. He
does not contend that a consciousness of guilt instruction
should have been omitted in its entirety but rather that the
judge, in exercising discretion to give such an instruction,
24
With the assistance of a committee of trial court judges,
this court currently is reviewing the Model Jury Instructions on
Homicide that were published in 2013. The proposed instruction
set out in the Appendix is a possible form of a revised Mutina
instruction, but we invite the committee to review and, if
appropriate, propose revisions to this proposed instruction.
For the present, upon request by a defendant, a judge should
give the provisional Mutina instruction set forth in the
Appendix.
28
committed reversible error in not limiting the jury's
consideration of consciousness of guilt evidence to the issue of
the defendant's mental state at the time of the crime, i.e., his
criminal responsibility or lack thereof. We do not agree. As
the trial judge noted, although the defendant did not contest
that he had killed the victim, the Commonwealth was still
required to prove beyond a reasonable doubt that he did so and
the evidence of consciousness of guilt was relevant to this
question. See Commonwealth v. Lowe, 391 Mass. 97, 108 n.6,
cert. denied, 469 U.S. 840 (1984) (evidence of consciousness of
guilt is relevant to whether homicide occurred). Cf.
Commonwealth v. Denis, 442 Mass. 617, 624 (2004) (no error for
judge to give identification instruction, although
identification not contested; necessary for Commonwealth to
prove beyond reasonable doubt identification of defendant as
person who committed crime, notwithstanding concessions by
defense at trial). Moreover, as the defendant's argument on
appeal recognizes, actions taken by the defendant following the
killing of the victim that reasonably could be interpreted to
reflect consciousness of guilt25 were relevant to an assessment
of the defendant's mental state and whether he was criminally
25
Such acts included, for example, setting a fire in
Seagull House, arguably seeking to burn evidence of or even burn
down the locus of the killing; wrapping and discarding the
victim's body in a church parking lot removed from the scene of
the killing; stealing and changing into different clothes; and
trying to secure a place to stay with relatives and out of view.
29
responsible. Accordingly, an instruction on consciousness of
guilt was entirely proper in the circumstances of this case.
See Commonwealth v. Cardarelli, 433 Mass. 427, 437 (2001).
5. Relief under G. L. c. 278, § 33E. The defendant argues
that, based on the extensive evidence of his mental illness
presented at trial, this court should exercise its power of
review under G. L. c. 278, § 33E, to reduce the degree of guilt
or order a new trial. We recognize that the defendant presented
substantial evidence that he lacked criminal responsibility at
the time he killed the victim. However, the Commonwealth
presented substantial evidence to the contrary. The jury were
entitled to reject the testimony and opinions of the defendant's
witnesses and instead credit the contrary evidence, including
the opinion of the Commonwealth's expert, and to conclude that
the defendant was criminally responsible. "Tragic as this case
is, it is a case where the question of criminal responsibility
was truly for the jury, and justice does not require that their
verdict be disturbed." Johnston, 467 Mass. at 706. In the
circumstances of this case, based on our careful review of the
trial record, we decline to reduce the degree of guilt, order a
new trial, or grant other relief under G. L. c. 278, § 33E.
Judgment affirmed.
Appendix.
PROVISIONAL MUTINA INSTRUCTION1
Consequences of Verdict of Not Guilty by Reason of Lack of
Criminal Responsibility. As I have 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
verdict[s]. You may not consider sentencing or punishment in
reaching your verdict[s]. However, I am going to tell you what
happens to a defendant if he [or she] is found not guilty by
reason of lack of criminal responsibility.
First, the court may order the defendant to be hospitalized
at a mental health facility for a period of observation and
examination. During this observation period or in any event
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 concludes that the defendant is mentally
ill and that his [or her] discharge would create a substantial
likelihood of serious harm to himself [or herself] or others,
then the court will grant the petition and commit the defendant
to a proper mental facility or to Bridgewater State Hospital,
initially for a period of six months. At the end of the six
months and every year thereafter, the court reviews the order of
commitment. If the defendant is still suffering from a mental
disease or defect and is still dangerous, then the court will
order the defendant to continue to be committed to the mental
facility or to Bridgewater State Hospital. 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.
If at some point the defendant is no longer mentally ill
and dangerous, the court will order him [or her] discharged from
the mental health facility or from Bridgewater State Hospital
after a hearing. 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
defendant is always made by the court.
1
See Commonwealth v. Mutina, 366 Mass. 810, 823 & n.12
(1975).
2
This is what happens if you find the defendant not guilty
by reason of lack of criminal responsibility.