Commonwealth v. Muller

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SJC-11176
COMMONWEALTH vs. CHRISTIAN MULLER.
Worcester. December 9, 2016. - July 11, 2017.
Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ.
Homicide. Armed Assault with Intent to Murder. Armed Home
Invasion. Firearms. Mental Impairment. Insanity.
Intoxication. Evidence, Insanity, Intoxication. Practice,
Criminal, Capital case, Instructions to jury, Argument by
prosecutor.
Indictments found and returned in the Superior Court
Department on August 23, 2007.
The cases were tried before Richard T. Tucker, J.
Deirdre L. Thurber for the defendant.
Susan M. Oftring, Assistant District Attorney, for the
Commonwealth.
HINES, J. During an armed home invasion of an apartment in
Dudley, the defendant, Christian Muller, and an accomplice1 shot
and killed two of the occupants and critically wounded a third.
1
According to the Commonwealth, the accomplice ultimately
pleaded guilty to several charges.
2
After a jury trial, the defendant was convicted of two counts of
murder in the first degree, on the theories of deliberate
premeditation and felony-murder,2 armed assault with intent to
murder, armed home invasion and unlawful possession of a
firearm.
At trial, the defendant admitted that he had shot the
victims; his primary defense was that he lacked criminal
responsibility because of mental illness and cocaine addiction.
On appeal, the defendant argues that (1) the jury instruction on
criminal responsibility and voluntary intoxication was erroneous
because it failed to comply with Commonwealth v. Berry, 457
Mass. 602 (2010), S.C., 466 Mass. 763 (2014), and Commonwealth
v. DiPadova, 460 Mass. 424 (2011); (2) certain of the other jury
instructions were fatally flawed; and (3) the prosecutor's
closing argument was improper. We affirm the convictions and
decline to grant relief pursuant to G. L. c. 278, § 33E.
Background. 1. The trial. We summarize the facts as the
jury could have found them, reserving additional details for
later discussion.
a. The Commonwealth's case. On the evening of July 8,
2007, Joanne Mercier was in her bedroom in the third-floor
apartment that she shared with her brother, Aaron Bash, in
2
The predicate felony for Muller's convictions of felony-
murder in the first degree was armed home invasion.
3
Dudley. Bash was asleep in his bedroom and their friend, Denise
Johnston, was sleeping on a sofa in the living room. Shortly
after midnight on July 9, the defendant and Marc Letang kicked
down the back door and entered the apartment with their guns
drawn.3 The men walked through the kitchen and entered Mercier's
bedroom, asking where Bash was. After Mercier told them that
Bash was asleep in his bedroom, the men left Mercier's room and
awoke Bash. As Mercier followed the men into Bash's bedroom,
she heard the defendant asking Bash whether he was sleeping with
the defendant's wife. Bash denied the accusation.
Letang went into the living room and brought Johnston into
Bash's bedroom at the defendant's request. The defendant was at
the foot of the bed facing the victims, who were all sitting on
the bed, while Letang stood in the corner of the room. The
defendant continued to accuse Bash of sleeping with his wife and
Bash repeatedly denied it, stating that he would not do that to
his friend. Finally, the defendant told Bash that if he just
admitted it and told the defendant what he wanted to hear, this
would all be over. When Bash refused to admit to the
defendant's accusations, the defendant said, "Fuck this," and
3
Earlier in the evening of July 8, 2007, the defendant
attempted to gain entry into Aaron Bash and Joanne Mercier's
apartment, looking for Bash. The defendant was banging on the
door and calling Bash's name; Bash told Mercier not to answer
the door, and eventually the defendant left without further
incident.
4
shot Johnston in the head. As Bash asked the defendant, "What
the eff are you doing?" the defendant shot Mercier in the head.
When Mercier regained consciousness a few minutes later, she
realized that the defendant and Letang were gone, and discovered
that Johnston was still breathing despite the gunshot to her
head.
Mercier had not yet comprehended that she had been shot,
but knew she needed to call an ambulance for Johnston. She
retrieved her cellular telephone and then called to Bash. When
Bash failed to answer her, she looked him and saw that he had
been fatally shot in the head. Mercier was so distraught that
she had to telephone 911 twice because, at first, she could not
remember where she was.
Shortly after midnight on July 9, 2007, a patron was
leaving a nearby bar when he heard five to seven loud noises he
assumed were fireworks. Approximately one minute later, he
observed two men, whom he was able to describe, running around
the corner; one of the men was carrying a firearm. The witness
heard someone say, "Go. Let's go," as the men got into a
vehicle and drove away.
When officers entered the apartment, they observed Mercier
conscious and bleeding from her head. She was in shock, crying
and "yelling things," but was able to communicate that
"Christian" shot her.
5
Officers then discovered Bash and Johnston. Bash was found
on the bed; he was dead from two gunshot wounds to his head.
Johnston was found near the end of the bed, but she appeared to
be alive. She later died at a hospital of a gunshot wound to
her head.
Right before the shootings, the defendant and Letang had
been at the home of a friend of the defendant, who lived in
Webster; a woman and a man were also there. Both the woman and
the defendant had been smoking "crack" cocaine. The woman
testified that the more "crack" the defendant smoked, the more
"crazy" he became. The defendant was agitated; he was pacing
back and forth, waving his gun around, saying that he was going
to put bullets in their heads. He also said that Bash owed him
money for drugs and that Mercier was "just a stupid bitch."4
Prior to leaving the house, the defendant said he was going to
"take care of some business" and left with his firearm.
The defendant and Letang returned to the friend's home.
They came running up the stairs, saying that they had just
murdered some people. The defendant and Letang told the woman
that if she said anything about their involvement in the murders
that they would "put a cap in her head." There was discussion
4
Until one week prior to the shootings, the defendant and
Mercier had been in a short romantic relationship outside the
defendant's marriage. Mercier ended the relationship because
the defendant became angry with her; when she left in a vehicle
without him, he fired a gun at the vehicle.
6
about killing the woman because she knew and had seen too much.
The defendant eventually went outside the house and demanded
that the woman join him. He was pacing in the road with his
firearm, telling the woman both that he did not mean to do it
and that he did not commit the murders. Ultimately, however,
the defendant told her that he "shot the motherfucker,"
referring to Bash, and that he put the three victims on the bed
and shot them execution style. He put the gun to the woman's
head several times, threatening to shoot her in the head if she
said anything about his involvement in the murders.
The woman and the defendant walked down the street where
the defendant stopped to hide his gun, which the defense
stipulated was used to shoot the victims, in the cellar of a
home. He warned the woman not to tell anyone where he hid the
gun. Next, they walked to the defendant's parents' home, where
he changed out of his bloody clothing. Finally, they walked
through town and ended up back at the friend's home where they
slept until later that morning.
When they woke up, the police had the house surrounded.
The defendant got up, saying, "I didn't do it," as he left the
house and ran into some woods behind the home, where he was
arrested.
The defendant was interviewed by two State police troopers
at the Dudley police department. Although the defendant
7
initially declined to speak with the officers, after he spoke to
his wife and mother, he agreed to the interview. The defendant
admitted that he was in Webster the night before and "smoked a
bunch of crack," but initially denied seeing Bash.
However, after the defendant figured out that Mercier had
survived and was told that the police had found his gun, he
admitted to committing the shootings and stated that he knew he
was going to jail. The defendant stated that he had been doing
a lot of drugs that night, and after "the gun went off" and he
shot Johnston, he thought, "If I leave them alive, I'm going to
jail for my life, so I [shot Bash and Mercier]."
He also told the officers, "When I'm on drugs, I see . . .
lots of things. I get real crazy. I hallucinate . . . I have
psych attacks. I get rages. I am a different total person."
The defendant told the officers that he was off his medications
and that he was bipolar and schizophrenic, had anxiety, and
suffered from panic attacks and paranoia. He also noted that
when he is off his medication, he gets even more paranoid and
goes "cuckoo."
b. The defendant's case. The defendant offered five
witnesses in support of his lack of criminal responsibility
defense, including three expert witnesses.
i. Dr. Giulia Mezzacappa. Mezzacappa, a clinical
psychiatrist, evaluated the defendant at an organization
8
providing mental health services, in February and June, 2006,
one year before the murders.5 As part of her psychiatric
evaluation of the defendant, Mezzacappa also interviewed the
defendant's family, including his wife, sister, stepfather, and
mother. Based on Mezzacappa's evaluation of the defendant and
interviews with his family, Mezzacappa diagnosed the defendant
with schizoaffective disorder.6 At the time of Mezzacappa's
February, 2006, evaluation, the defendant had stopped taking his
prescribed antipsychotic and anxiety medications. As a result
of her evaluation, Mezzacappa prescribed an antipsychotic mood
stabilizer. During his evaluations, the defendant and his
family freely reported the defendant's use of heroin, marijuana,
and "crack" cocaine.
Mezzacappa opined that "substance abuse can definitely
worsen any mental illness, especially a psychotic disorder or
mood disorder," and agreed that drug usage can also trigger
5
Dr. Giulia Mezzacappa estimated that she saw the defendant
no more than three times in 2006, for a total of approximately
two to two and one-half hours.
6
Mezzacappa defined schizoaffective disorder as "a chronic
mental illness that's characterized by recurrent episodes of
affective symptoms, either depression or mania or a mixed state,
and chronic psychotic symptoms, like hallucination, delusional
ideation, or thought disorder." She further defined psychotic
symptoms as "hallucination, abnormal perception, sensory
perception, that don't correspond to reality, such as hearing
voices or seeing things that are not there, or physical
sensation that is not related to anything realistic. There is
an ideation or fixed beliefs that don't correspond to reality."
9
psychotic effects in an individual suffering from a mental
disease or defect. She noted that she had no reason to believe
that the defendant was exaggerating his symptoms or malingering,
especially where his family also supported his history.
Nonetheless, she did believe that the defendant was aware of the
effect drugs like cocaine and heroin had on him, although she
could not opine as to the degree of his knowledge. Finally,
Mezzacappa had no opinion as to whether the defendant was
criminally responsible for his actions at the time of the
murders.
ii. Dr. Hanya Bluestone. Bluestone, a forensic
psychologist employed by the courts, evaluated the defendant's
competence to stand trial and criminal responsibility, pursuant
to G. L. c. 123, § 15 (a), on July 10, 2007. In order to
evaluate the defendant's competence and criminal responsibility,
Bluestone spoke with the defendant and reviewed his court clinic
file, which contained a prior competency evaluation conducted by
a colleague of Bluestone's, an evaluation regarding the
defendant's need for involuntary commitment for substance abuse
treatment in 2006, and the police report for killings. She also
spoke with Mezzacappa regarding the defendant's psychiatric
treatment in 2006.
During Bluestone's evaluation, the defendant had some
difficulty recalling dates and placing events in time, and he
10
expressed some paranoia and persecutory ideation. Bluestone was
concerned about psychotic symptoms the defendant reported,
especially command auditory hallucinations, which he said
commanded him to commit violent acts. She also noted that the
defendant's psychotic symptoms were consistent with his prior
evaluations. She could not, however, determine the etiology of
the defendant's psychotic symptoms -- whether those symptoms
were primarily related to a mental illness or to the defendant's
ongoing and varied substance abuse -- because his symptoms were
consistent with mental illness and substance abuse and
withdrawal from substance abuse. Bluestone concluded that based
on the defendant's symptoms during her evaluation alone, he
should be further evaluated in Bridgewater State Hospital
(Bridgewater).7 She did not offer an opinion regarding the
defendant's criminal responsibility.
iii. Dr. Paul A. Spiers. Spiers, a neuropsychologist,8
evaluated the defendant for his competence to stand trial and
7
Dr. Hanya Bluestone interviewed the defendant for
approximately forty minutes, and she spent an additional eight
hours preparing his competency evaluation. In addition to her
interview with the defendant, Bluestone also spoke with the
defendant's wife, who reported that when the defendant was using
illicit drugs, his mental illness would get out of control and
he would emotionally and physically abuse her. His wife opined
that the defendant used illicit drugs to manage the symptoms of
his mental illness.
8
Dr. Paul A. Spiers defined "neuropsychology" as "an
investigation of the relationship between the brain and
11
criminal responsibility in April, 2009.9 In preparation for his
evaluation of the defendant, Spiers reviewed the defendant's
records from the Department of Youth Services and the Department
of Social Services, school records, prior psychiatric treatment
notes, and records from the defendant's prior incarcerations.
He also reviewed expert reports regarding the defendant's
competence and criminal responsibility created for the trial,
including reports from Bridgewater and a corresponding
evaluation from a clinical psychologist on staff at Bridgewater,
and the videotape of the defendant's interview with the State
police. He also administered neuropsychological tests to
determine whether the defendant's neuropsychological functioning
was appropriate.
Spiers determined that the defendant was deficient in many
critical areas, such as reading ability and vocabulary, which
invalidated some of the testing results, because of the danger
of false positive results. Specifically, Spiers noted that
tests, such as the Minnesota Multiphasic Personality Inventory
(MMPI), were inappropriate for the defendant, because it
required the test-taker to possess a seventh or eighth grade
behavior. . . . [the brain is] responsible for all our
interactions with the world around us. It's responsible for all
of our behavior, and it's responsible for how we understand and
control our behavior."
9
Spiers met with the defendant once, for two or three hours
in April, 2009, to conduct his evaluation.
12
reading level, which the defendant did not have. Spiers further
noted that the MMPI is made up of 560 true or false questions,
which help evaluators not only to diagnose psychological
disorders but also to gauge effort and malingering, based on how
the test-taker answered the questions. The defendant had been
evaluated previously using the MMPI and other tests, the results
of which led another psychologist to conclude that the defendant
was a malingerer and that he exaggerated his symptoms at
Bridgewater in 2007. Spiers noted, however, that although he
agreed with the methodology of the defendant's previous testing,
he took issue with the conclusions regarding that testing
because of the defendant's intellectual limitations.
Spiers concluded that the defendant showed evidence of
defective functioning in the left frontal lobe of his brain,10
such that he would experience difficulty with reasoning and
controlling his behavior. In Spiers's opinion, the defendant
continues to have the neurodevelopmental deficits he had as a
child and young adult, including oppositional defiant disorder
and attention deficit disorder. As a result of the defendant's
neurodevelopmental deficits, mental illness, and his drug
intoxication, Spiers opined that at the time of the shootings,
10
Spiers concluded that the defendant had defective
functioning in the frontal lobe of his brain, but Spiers did not
have the benefit of functional magnetic resonance imaging of the
defendant's brain in aid of his diagnosis.
13
the defendant was unable to conform his behavior to the
requirements of the law, and thus was not criminally
responsible.11 Spiers further opined that it was highly probable
that because of the defendant's mental illness, the defendant
could not form the specific intent to commit murder under
theories of premeditation or extreme atrocity or cruelty, or to
commit an assault with intent to murder.
iv. The defendant's family. The defendant's wife and his
cousin testified regarding their experiences with the
defendant's mental illness and drug addiction. The defendant's
wife testified that in 2007, the defendant was receiving Social
Security disability benefits for his mental disabilities. She
described the defendant as very mean, angry, and abusive when he
was using drugs12 and stated that he did not take his
prescription medications when he consumed illegal drugs. His
wife said that the defendant was taking heroin, "crack" cocaine,
and pills, such as OxyContin, Percocet, and Vicodin. Two weeks
prior to the shootings, his wife barred the defendant from the
family home because he was consuming a large amount of illegal
11
Spiers opined that at the time of the shootings, the
defendant had substantial capacity to appreciate the
wrongfulness of his conduct.
12
The defendant's wife testified, however, that when the
defendant was on his medication and not taking illegal drugs he
was a good father and would participate fully in taking care of
their children and the household, and maintained a close
relationship with their extended families.
14
drugs and was accusing her of cheating on him.13 The defendant
attempted to come back home five or six times during the two-
week period, but she refused unless the defendant sought help
for his drug addiction. The defendant's wife also stated that
on four or five occasions throughout their marriage, she
observed the defendant talking to himself and when she asked who
he was talking to, he answered, "his friends," although no one
else was present; this occurred whether or not he was on
medication.
The defendant's cousin testified that the defendant began
exhibiting symptoms of mental illness after his father died when
the defendant was twelve or thirteen years of age. He became
untrusting and had behavior issues. The defendant began to use
illegal drugs during this time period as well. Approximately
one or two days before the shootings, the defendant visited his
cousin, who testified that the defendant was "binging" drugs and
that the defendant told him that he had not slept or eaten in
days. His cousin fed the defendant and noted that he was having
a conversation with himself. His cousin had observed similar
behavior from the defendant on countless occasions since their
teenage years.
13
In 2006, the defendant was admitted to a substance abuse
treatment center after his wife filed a petition to have him
involuntarily committed pursuant to G. L. c. 123, § 35. He had
been previously treated for substance abuse at other in-patient
facilities without sustained success.
15
In his cousin's opinion, there was a drastic difference in
the defendant's personality when he was taking his antipsychotic
medications and off illegal drugs. The defendant appeared to be
unstable while using drugs. The defendant's cousin also stated
that the defendant did not seem to remember what he did when he
was abusing drugs, and his cousin would have to recount the
defendant's activities to him. Finally, his cousin stated that
while on drugs, the defendant held objectively untrue beliefs
about those close to him, especially his wife.
c. The Commonwealth's rebuttal expert. Dr. Karin Towers,
a forensic psychologist and attorney, first evaluated the
defendant in July and August, 2007, for competency to stand
trial and criminal responsibility, during his forty-day
hospitalization at Bridgewater, and again during the summer of
2010 for the purposes of a criminal responsibility evaluation.
During his hospitalization at Bridgewater in 2007, Towers and
other staff members administered psychological tests to the
defendant. Towers deemed the defendant's MMPI and Structured
Interview of Reported Symptoms test results invalid because his
answers demonstrated that he was malingering and exaggerating
symptoms. Observations from Towers and other staff members
confirmed the test results.14
14
During the defendant's forty-day hospitalization at
Bridgewater State Hospital, he admitted to making an insincere
16
Towers concluded that the defendant's answers demonstrated
an unsophisticated attempt to appear to have more symptoms than
he was genuinely experiencing. She was unable to make a
definitive mental illness diagnosis because of the defendant's
exaggerated or feigned symptoms and his lengthy history of
illegal drug abuse. She stated that, in these circumstances, it
can be more difficult to assess whether a patient actually has a
mental illness, whether the symptoms are caused by illegal drug
use, or whether there is an underlying mental illness that has
been triggered or exacerbated by the drug use.
After viewing the videotape of the defendant's police
interview, Towers concluded that the defendant exhibited
volitional behavior, meaning that the defendant was aware of his
surroundings and circumstances, was able to advocate for
himself, and could assert his wishes. Towers opined that the
defendant clearly met the criteria for antisocial personality
disorder and that he very likely had some sort of psychotic
disorder, or substance abuse-induced psychotic disorder. Towers
further opined that the defendant was criminally responsible for
his acts on July 8-9, 2007, despite the fact that he was likely
experiencing psychological symptoms, because his symptoms did
suicidal gesture because he was unhappy with the medications
prescribed by his treating psychiatrist. Additionally, Towers
and other staff members interpreted his behavior, in which he
grossly exaggerated his symptoms, as drug-seeking behavior.
17
not interfere with his ability to either appreciate the
wrongfulness of his conduct or to conform his behavior to the
requirements of the law.15
2. Discussion. On appeal, the defendant (1) challenges
the jury instructions on criminal responsibility as inconsistent
with the law governing the interplay between mental illness and
the voluntary consumption of drugs or alcohol; (2) argues that
certain of the other jury instructions were flawed; (3) contends
that the Commonwealth's closing argument was improper; and (4)
requests that we exercise our power pursuant to G. L. c. 278,
§ 33E, to reverse his convictions and either order a new trial
or enter judgments of not guilty by reason of lack of criminal
responsibility. We address each argument in turn.
a. Criminal responsibility and voluntary intoxication
instructions. The defendant argues that the judge’s
instructions on criminal responsibility were erroneous in
failing to comport with Berry and DiPadova.16 Although the
15
Towers noted a number of factors that were significant in
rendering her opinion regarding the defendant's ability to
conform his conduct to the requirements of the law. He decided
to shoot Bash and Mercier, after he initially shot Johnston, to
avoid leaving witnesses; he was able to control his behavior,
such as when he left the scene of the crime; and he acted to
avoid apprehension in threatening the woman who was at his
friend's house, hiding the gun, and changing his clothing.
16
The defendant is entitled to the benefit of Commonwealth
v. Berry, 457 Mass. 602 (2010), S.C., 466 Mass. 763 (2014); and
Commonwealth v. DiPadova, 460 Mass. 424 (2011), because his
18
defendant's challenge to this aspect of the jury instructions
lacks precision, it appears to be based on a claim that the
judge erroneously charged the jury to consider whether the
defense of lack of criminal responsibility was vitiated by the
defendant's knowledge that his voluntary consumption of drugs or
alcohol would activate a "latent" mental disease or defect. We
discern no error in the instructions on that ground. We
conclude, however, that the judge's instructions were erroneous
in failing to clarify, as required in Berry, that the voluntary
consumption of drugs or alcohol does not preclude the defense of
lack of criminal responsibility where the mental disease or
defect, standing alone, causes the defendant to lose the
substantial capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of the
law. Berry, 457 Mass. at 618. Notwithstanding the error,
reversal is not required.
We briefly summarize the governing principles of law as
background for our analysis of the defendant's claims of error.
In Commonwealth v. McHoul, 352 Mass. 544 (1967), we established
the basic principle of law for determining criminal
responsibility. We held that a defendant is not criminally
trial commenced approximately seven months after Berry was
released, and his direct appeal was pending when DiPadova was
released. See Commonwealth v. Johnston, 467 Mass. 674, 704
(2014).
19
responsible for his actions if, as a result of a mental disease
or defect, he lacked the substantial capacity to appreciate the
wrongfulness of his conduct or conform his behavior to the
requirements of the law. Id. at 546-547. Since McHoul, our
cases have evolved, addressing the impact of a defendant's
voluntary consumption of drugs or alcohol on criminal
responsibility. In Commonwealth v. McGrath, 358 Mass. 314, 319-
320 (1970), we emphasized that a mental disease or defect is the
sine qua non of a lack of criminal responsibility defense,
holding that the defense is not available where the defendant's
loss of the substantial capacity to appreciate the wrongfulness
of his conduct or conform his behavior to the requirements of
the law is caused by the voluntary consumption of drugs or
alcohol as opposed to a mental disease or defect. Later cases
affirmed the necessity of a causal relationship between a mental
disease or defect and lack of criminal responsibility. See,
e.g., Commonwealth v. Sheehan, 376 Mass. 765, 767 (1978).
In Berry, we revisited the relationship between the
defendant's voluntary consumption of drugs or alcohol and lack
of criminal responsibility. We set forth jury instructions that
included a provision that allowed for a defense of lack of
criminal responsibility even where the defendant voluntarily
consumed drugs or alcohol: "Where a defendant has an active
mental disease or defect that caused [him] to lose the
20
substantial capacity to appreciate the wrongfulness of [his]
conduct or the substantial capacity to conform [his] conduct to
the requirements of the law, the defendant's consumption of
alcohol or another drug cannot preclude the defense of lack of
criminal responsibility." Berry, 457 Mass. at 618. In
DiPadova, 460 Mass. at 432, we considered again the interplay
between a mental disease or defect that, unlike in Berry, did
not independently cause the defendant to lack criminal
responsibility, and the voluntary consumption of drugs and
alcohol. We clarified that in these circumstances, the defense
is available but only if the defendant lacked knowledge that the
voluntary consumption of drugs or alcohol would trigger a
"latent"17 mental disease or defect that would cause him to lack
criminal responsibility. Id.Here, the judge gave the following instruction regarding
the impact of the voluntary consumption of drugs or alcohol on
the defendant's entitlement to a lack of criminal responsibility
defense:
"The issue has been raised that the defendant may not
have been criminally responsible for his alleged actions
due to his use of drugs or alcohol. Voluntary intoxication
with drugs or alcohol is not by itself a mental disease or
17
Here, in making the reference to a "latent" mental
disease or defect, the judge did not have the benefit of our
caution in DiPadova, 460 Mass. at 432 n.10, that "the use of
such terms ['latent' and 'activation'], particularly in jury
instructions, may be confusing." In any event, the use of the
terms did not constitute error.
21
defect that will support a verdict of not guilty by reason
of insanity. The normal consequences of drug and alcohol
addiction are not a basis for relieving a defendant of
criminal responsibility. However, there may be situations
where a defendant who is addicted to drugs or alcohol might
have a defense of lack of criminal responsibility available
to him. You may consider whether the defendant had a
mental disease or defect, apart from his drug or alcohol
addiction, such that he lacked substantial capacity at the
time of his crime to conform his conduct to the
requirements of the law.
"In addition, you may consider whether the defendant's
voluntary consumption of drugs or alcohol activated a
latent mental disease or defect apart from the addiction
itself. If as a result of the activation of that latent
mental disease or defect, the defendant lost the
substantial capacity to understand the wrongfulness of his
conduct . . . or to conform his conduct to the requirements
of the law, the defendant would lack criminal
responsibility. However, if the defendant knew or
subjectively had reason to know under the circumstances
that his use of drugs or alcohol would activate the latent
mental disease or defect, he may not rely on that disease
or defect to assert lack of criminal responsibility. In
deciding what the defendant subjectively had reason to
know, you should consider the question solely from the
defendant's point of view, including his mental capacity.
"Thus, if the Commonwealth has proved beyond a
reasonable doubt that the defendant knew or had reason to
know that his consumption of alcohol or drugs would
activate a mental disease or defect, then you must find
that the defendant was criminally responsible for his
actions. It is not necessary that the defendant knew or
had reason to know that he had a mental disease or defect,
as long as he knew that his voluntary consumption of drugs
or alcohol would trigger inappropriate conduct."
As the Commonwealth notes, the jury instructions
substantially comported with the generally accepted Superior
Court jury instructions for explaining the impact of the
voluntary consumption of drugs or alcohol on criminal
22
responsibility. See Massachusetts Superior Court Criminal
Practice Jury Instructions, §§ 3.1, 3.1.1(b) (Mass. Cont. Legal
Educ. 1999 & supp. 2003). The defendant, however, takes issue
with this instruction, claiming that the reference to a "latent"
mental disease or defect was improper under DiPadova in the
absence of evidence that the defendant knew of the effect of
drugs or alcohol on his mental illness and that it was otherwise
inconsistent with Berry.
The defendant's argument that the instructions were
erroneous under DiPadova fails. The Commonwealth presented
ample evidence that the defendant knew his consumption of drugs
would exacerbate the symptoms of his mental illness, especially
in his confession to police. See DiPadova, 460 Mass. at 436-
437. Thus, we discern no error in this aspect of the judge's
instructions.
For reasons unknown, however, the judge and parties failed
to avail themselves of the revised instruction in Berry.
Although the judge correctly instructed the jury to "consider
whether the defendant had a mental disease or defect, apart from
his drug or alcohol addiction, such that he lacked substantial
capacity at the time of the crime to conform his conduct to the
requirements of the law," he neglected to inform the jury that
in such a case, the defendant's consumption of alcohol or
another drug cannot preclude the defense of lack of criminal
23
responsibility. Thus, the failure to instruct in accordance
with Berry was error. See Berry, 457 Mass. at 617-618.
Because the defendant did not object to the jury charge on
this ground (or raise the issue in his brief), we review the
error for a substantial likelihood of a miscarriage of justice.
See id. at 618. "In analyzing a claim under the substantial
likelihood standard, we review the evidence and case as a whole
and consider whether any error made in the course of the trial
was likely to have influenced the jury's conclusion." Id.,citing Commonwealth v. Wright, 411 Mass. 678, 682 (1992). We
conclude that the erroneous jury instructions regarding the
impact of voluntary consumption of drugs on the lack of criminal
responsibility defense did not create a substantial likelihood
of a miscarriage of justice.
In assessing prejudice, the issue we decide is whether the
failure to inform the jury that the voluntary consumption of
drugs or alcohol does not vitiate the defense if the defendant's
mental illness was an independent cause of his lack of criminal
responsibility likely influenced the jury's verdict. We
conclude that it did not.
Here, the defendant presented no evidence that at the time
of the shootings, his mental disease or defect was active, such
that he lacked substantial capacity to conform his conduct to
24
the law.18 See Berry, 457 Mass. at 617-618. Of the defendant's
three expert witnesses, only Spiers opined that the defendant
lacked criminal responsibility at the time of the murders.
Although Spiers agreed that the defendant was able to appreciate
the wrongfulness of his conduct, he believed that the defendant
lacked the substantial capacity to conform his conduct to the
requirements of the law, based on his neurodevelopmental
deficits, mental illness, and drug addiction. The jury heard
Mezzacappa's opinion, however, that the defendant suffered from
schizoaffective disorder, but that the symptoms of mental
illness can worsen with substance abuse. Bluestone testified
that she could not determine the source of the defendant's
reported symptoms because of his ongoing, varied substance
abuse, where his symptoms were consistent with mental illness
and substance abuse and withdrawal from substance abuse. None
of the expert testimony suggested that mental illness alone was
the cause of the defendant's alleged lack of capacity. Cf. id.
at 617-618. See DiPadova, 460 Mass. at 432. Therefore, the
judge's omission of the Berry instruction, although erroneous,
did not prejudice the defendant where there was no evidence that
the defendant's mental illness, regardless of his consumption of
18
The experts for the Commonwealth and the defendant who
opined on the matter agreed that the defendant had the capacity
to appreciate the wrongfulness of his conduct.
25
illegal drugs, caused him to lose substantial capacity. Berry,
supra.b. Other jury instructions. The defendant argues that
certain other jury instructions were flawed. Specifically, he
argues that two of the instructions, concerning armed home
invasion and armed assault with intent to murder, impermissibly
contained language requiring a guilty finding where the jury
found that the Commonwealth proved each element beyond a
reasonable doubt. He also argues that three instructions,
concerning armed assault with intent to murder, voluntary
manslaughter, and unlawful possession of a firearm, failed to
include language instructing the jury that, if they found that
the Commonwealth failed to prove each element beyond a
reasonable doubt, then the jury must find the defendant not
guilty. The defendant's arguments are unavailing. Because the
defendant did not object to the jury charge, we review for a
substantial likelihood of a miscarriage of justice. See
Commonwealth v. Rodriguez, 437 Mass. 554, 559 (2002). "Error in
a charge is determined by reading the charge as a whole, and not
by scrutinizing bits and pieces removed from their context."
Id., quoting Commonwealth v. Gunter, 427 Mass. 259, 267 (1998).
The judge charged the jury on nine offenses. For all nine,
the judge instructed the jury that, if they found that the
Commonwealth had proved each element beyond a reasonable doubt,
26
then they must return a guilty verdict. In addition, six of the
nine instructions included the instruction that if the jury
found that the Commonwealth had failed to prove each element
beyond a reasonable doubt, then they must find the defendant not
guilty. In the instructions for armed assault with intent to
murder, voluntary manslaughter, and illegal possession of a
firearm, the judge neglected to add the latter instruction.
Although this was error, there was no substantial likelihood of
a miscarriage of justice. The jury were properly instructed
regarding the burden of proof on several occasions during the
charge. "Viewed as a whole, the charge to the jury indicated
that it was the jury's duty to [determine if] the Commonwealth
has met its burden of proving every element of the crime beyond
a reasonable doubt before they could convict." Commonwealth v.
Giguere, 420 Mass. 226, 232 (1995), quoting Commonwealth v.
Sellon, 380 Mass. 220, 234 (1980).
c. Inference of sanity instruction. In Commonwealth v.
Lawson, 475 Mass. 806, 815 (2016), we concluded that "the
inference that the defendant is criminally responsible because
the great majority of persons are criminally responsible is not
sufficient alone to warrant a rational finder of fact to
conclude beyond a reasonable doubt that a defendant is
criminally responsible." We further determined that "given the
meager weight of this inference and the risk of juror confusion
27
regarding the burden of proof, judges should not instruct juries
regarding this inference." Id. at 815 n.8. Here, the jury were
instructed as follows:
"In determining whether the defendant was sane at the
time of the alleged crime, you may consider the fact, if
you so desire, that a great majority of men are sane and
the resulting probability that any particular man was sane.
It is for you do decide whether to draw that inference.
The fact that I have given you this inference does not mean
that you must adopt it. It is something you may not adopt,
depending on how you view all of the evidence, including
medical evidence given by the psychologists and other
witnesses who have testified in this case."
This is substantially similar to the instruction that we
discontinued in Lawson, supra at 815 n.8.19 Here, the defendant
is entitled to the benefit of Lawson, as that case was released
while the defendant's appeal was pending on direct review. See
Commonwealth v. Johnston, 467 Mass. 674, 704 (2014). Therefore,
although the defendant did not raise this claim of error on
appeal, we review to determine whether this error created a
substantial likelihood of a miscarriage of justice. See
Commonwealth v. Griffin, 475 Mass. 848, 863 (2016). We conclude
it does not.
Although the instruction regarding the inference of sanity
was error, the judge ameliorated the error where he specifically
instructed the jury that they did not have to draw such an
19
This instruction has since been removed from the Model
Jury Instructions on Homicide. See Commonwealth v. Griffin, 475
Mass. 848, 863 (2016), citing Model Jury Instructions on
Homicide 1-12 (2013).
28
inference, especially in light of the jury's view of the expert
medical testimony. "Where the trial judge strongly and
specifically instructed that the burden is on the Commonwealth
to prove criminal responsibility beyond a reasonable doubt and
where there was substantial evidence supporting the jury's
finding of criminal responsibility, we conclude that this
instruction did not create a substantial likelihood of a
miscarriage of justice." Griffin, 475 Mass. at 863.
d. Prosecutor's closing argument. The defendant argues
that the prosecutor improperly demeaned the defense of lack of
criminal responsibility, misstated the evidence and the law, and
vouched for the credibility of the defendant's witnesses. The
defendant did not object to the prosecutor's closing argument,
so we review for a substantial likelihood of a miscarriage of
justice. Commonwealth v. Braley, 449 Mass. 316, 329 (2007).
"Closing arguments must be viewed 'in the context of the entire
argument, and in light of the judge's instruction to the jury,
and the evidence at trial.'" Id. at 328-329, quoting
Commonwealth v. Colon-Cruz, 408 Mass. 533, 553 (1990).
During his closing argument, the prosecutor stated that the
defendant was using his mental illness as a "crutch." He
referred to the defendant's statements to a family member made
during a telephone call that was recorded during his police
interview. The defendant told his family member, "I need all my
29
psych papers, all my medical papers ready, everything, all my
history." The prosecutor told the jury that it was then that
the defendant created his defense. He went on to say, "[i]t's a
crutch, is what it is. As I said, [the defendant] may have some
[mental] infirmities, but he's using it as a crutch to say that
he wasn't responsible." Although the prosecutor's
characterization of the defense of lack of criminal
responsibility was better left unsaid, it did not rise to the
level of creating a substantial likelihood of a miscarriage of
justice. He was properly suggesting that the defense of lack of
criminal responsibility was weak, and that although the
defendant may suffer from mental illness, he was criminally
responsible on July 8-9, 2007. See Commonwealth v. Lewis, 465
Mass. 119, 129-130 (2013).
Similarly, in his closing argument the prosecutor suggested
that the defendant was "not a raving lunatic," that he was
"rational" and that "he wasn't some recluse in a darkened room
with the shades pulled, not going out." These statements were
rhetorical and referenced the evidence of the defendant's
ability to be an active parent and spouse when he was not on
drugs. See Commonwealth v. Simpson, 434 Mass. 570, 586 (2001).
Especially where the jury heard evidence of the defendant's
malingering and exaggerating the symptoms of his mental illness,
the prosecutor's comments did not prejudice the defendant.
30
Compare Lewis, 465 Mass. at 128-130 (reversal warranted where
prosecutor suggested that entire defense was "sham" and insulted
defendant by repeatedly referring to him as "street thug" during
closing argument), with Simpson, supra, quoting Commonwealth v.
Wilson, 427 Mass. 336, 350 (1998) (prosecutor's characterization
of defense argument as "insult" and "'enthusiastic rhetoric' not
ground for reversal and juries presumed to have measure of
sophistication to sort out excessive claims").
The defendant's argument that the prosecutor misstated the
law is without merit. Although the defendant correctly notes
that the Commonwealth's burden was to prove that the defendant
had the substantial capacity to conform his behavior to the
requirements of the law, it was not improper for the prosecutor
to refer to the defendant's behavior as "rational." Moreover,
the prosecutor's characterization of the defendant as a "faker"
was based on evidence, as Towers opined that the defendant was
exaggerating and feigning symptoms while he was hospitalized at
Bridgewater.
Finally, the defendant asserts that the prosecutor
improperly vouched for the credibility of Mercier and Towers.
We disagree. "Improper vouching occurs if 'an attorney
expresses a personal belief in the credibility of a witness, or
indicates that he or she has knowledge independent of the
evidence before the jury.'" Commonwealth v. Kee, 449 Mass. 550,
31
560 (2007), quoting Commonwealth v. Ortega, 441 Mass. 170, 181
(2004). Here, the prosecutor did not express any personal
belief in the credibility of the witnesses, nor did he suggest
that he had any personal knowledge that supported the witnesses'
credibility. See Kee, supra. The prosecutor merely observed
that Mercier was "a very moving witness, a very candid and
honest witness in all of her answers, on both direct and cross,"
and that Towers gave a "very candid appraisal of the defendant's
mental state." The prosecutor's comments were proper. See id.
e. Relief pursuant to G. L. c. 278, § 33E. The defendant
requests that this court exercise its power under G. L. c. 278,
§ 33E, to reverse his convictions and either order a new trial
or enter judgments of not guilty by reason of mental disease or
defect. "When we undertake review under § 33E, we do not
function as a second jury. . . . That is we do not determine
what verdict we would have returned but whether the verdict 'was
against the law or weight of the evidence, or because of newly
discovered evidence, or for any other reason that justice may
require'" (citation omitted). Johnston, 467 Mass. at 705,
quoting G. L. c. 278, § 33E. We have examined the entire case,
considered the law and the evidence, and conclude that the
defendant is not entitled to any relief from the judgments
against him. See Commonwealth v. Brown, 376 Mass. 156, 167
(1978).
32
Judgments affirmed.