Commonwealth v. Beatty

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revision and are superseded by the advance sheets and bound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-13158
COMMONWEALTH vs. JOSEPH W. BEATTY.
Norfolk. March 10, 2023. - May 25, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, & Wendlandt, JJ.
Homicide. Criminal Responsibility. Practice, Criminal, Capital
case, Competency to stand trial, Instructions to jury.
Indictments found and returned in the Superior Court
Department on October 1, 2009.
The cases were tried before Thomas A. Connors, J.
Theodore F. Riordan (Deborah Bates Riordan also present)
for the defendant.
Pamela Alford, Assistant District Attorney, for the
Commonwealth.
WENDLANDT, J. The defendant, Joseph W. Beatty, was
convicted of one count of murder in the first degree on the
theories of deliberate premeditation, extreme atrocity or
cruelty, and felony-murder in connection with the 2009 killing
of his girlfriend, Mary Beaton (victim), in her Quincy
2
apartment.1 The defendant admitted to killing the victim, whom
he strangled and, later, asphyxiated with a pillow; however, he
contended that, due to his mental condition at the time of the
murder, he lacked criminal responsibility for her death.
On his direct appeal, the defendant maintains that the
trial judge abused his discretion in finding the defendant
competent to stand trial over defense counsel's objections, and
that the jury instructions concerning the consequences of a
verdict of not guilty due to lack of criminal responsibility,
while conforming to the then-applicable model jury instructions,
were prejudicial. He also asks the court to exercise its
authority under G. L. c. 278, § 33E, to reduce the degree of
guilt or order a new trial.
Having carefully reviewed the defendant's claims of error,
as well as the entire record, we affirm the conviction and
discern no reason to grant relief under G. L. c. 278, § 33E.
1. Background. The following facts are supported by the
evidence presented at trial.
a. The Commonwealth's case. On August 29, 2009, around
1:13 P.M., the defendant, his brother, two sisters, and niece
entered the emergency room at Boston Medical Center. The
defendant was wearing a "raggedy" yellow T-shirt, which was
1 He also was convicted of one count of aggravated rape in
violation of G. L. c. 265, § 22 (a).
3
covered in blood. He had blood around his neck and wrist, and
cuts to his wrist and hands.
At the hospital, the group approached uniformed Boston
police Officer Daniel Quintiliani. The defendant's brother told
Quintiliani that he needed to speak with the officer because the
defendant "did a bad thing." Quintiliani asked the defendant
what he had done. The defendant replied, "I strangled a girl in
her apartment." The defendant provided Quintiliani with the
victim's name and her address in Quincy. Upon request for
identification, the defendant produced his own driver's license
and an identification card in the victim's name. Quintiliani
radioed dispatch to request a well-being check on the victim.
The defendant appeared calm, and Quintiliani had no difficulty
speaking with him. The defendant's brother removed a knife from
the defendant's pocket and gave it to Quintiliani.
Thereafter, the defendant entered the hospital's triage
unit. When a nurse asked him why he was there, the defendant
answered that he had strangled his friend after an argument over
finances. The defendant denied experiencing visual or auditory
hallucinations and noted that he was a kidney transplant
recipient. He also reported that he had experienced suicidal
ideation.
Quintiliani's partner, Boston police Officer Daniel
Korenetsky, who had arrived at the triage area, provided Miranda
4
warnings to the defendant;2 the defendant indicated that he
understood and proceeded to ask Korenetsky whether police had
found the victim. Korenetsky answered in the negative, to which
the defendant replied, "[T]hey're going to have to kick the door
in." A short time later, Quintiliani learned that Quincy police
had found the deceased victim's body in her apartment.
At 1:29 P.M., shortly after Korenetsky had provided the
defendant with Miranda warnings, Boston police Detectives Joseph
Leeman and Daniel MacDonald arrived at the triage area. The
detectives identified themselves and asked the defendant what
had happened. The defendant told them that, between 5 P.M. and
5:30 P.M. the prior day, he "just snapped" and choked his
girlfriend at her apartment. At that point, Leeman and
MacDonald stopped the conversation, provided Miranda warnings to
the defendant, and handcuffed him. The defendant said that he
understood his rights and wanted to speak to the officers;
MacDonald left to get a tape recorder. By 1:43 P.M., Boston
police Detective Daniel Keeler arrived at the hospital; he also
recited the Miranda warnings to the defendant. Five minutes
later, MacDonald returned from the police station with a tape
recorder.
When his brother offered to get the defendant a lawyer,
2
the defendant replied, "What do I need a lawyer for, to get
eighty years instead of a hundred years?"
5
The defendant told the officers that on the day of the
killing, he went to the victim's apartment, where they drank a
couple of beers, shared a valium pill, and argued about money.
In particular, the victim was disappointed that they could not
afford a trip to Las Vegas; she informed the defendant that she
needed $500 for rent and proposed a less expensive trip to New
York. At that point, the defendant "just snapped." He grabbed
the victim's throat and began to strangle her; when she fell to
the floor, the defendant "had sex" with the victim and carried
her into the bedroom. The defendant saw white foam coming from
the victim's lips, after which he covered her face with a pillow
until she stopped breathing. The defendant placed a cross on
the victim, placed crucifixes on both sides of her body, put her
underwear on her, and covered her with a blanket. Before
leaving the apartment, the defendant took knives to "take care
of himself."
The defendant visibly was upset as he spoke; he added that
"my brain was just doing what it was doing; I had no control
over it." In response to a question by police that he had to be
angry, the defendant stated: "[Y]eah, I know but I don't know
what made me angry. . . . I've never had that anger in my
life." After a psychiatric resident evaluated the defendant and
determined that he did not require inpatient care, the defendant
was released to police custody.
6
i. Defendant's activities before and after killing. A few
days before the killing, between August 26 and August 28, 2009,
the defendant was at Foxwoods Casino with one of his sisters,
his niece, and four of his niece's children. On the morning of
August 28, the last day of the trip and the day of the murder,
the defendant, "distraught" and crying, told his sister that he
had been molested as a child by a neighbor.3 The family left the
casino shortly thereafter. The defendant drove two of his
niece's children in his van. His sister had no concerns about
his driving.
Later that day, at around 8:30 P.M., approximately three
hours after killing the victim, the defendant stopped at his
niece's home to bring her a cup of coffee. His niece noticed
that the defendant had a red mark on the side of his head. When
she asked the defendant what had happened, he replied that he
had slipped and fallen against his van.
The next morning, August 29, 2009, at around 8 A.M., the
defendant called his niece and told her to tell the family that
he loved them. Later that morning, the defendant called one of
his sisters and told her that he was at their mother's favorite
place, which his sister knew was a reference to Castle Island in
3 The defendant later told police that he made this
statement due to paranoia, flashbacks, suicidal thoughts, and
other functional impairments he suffered because of surgery in
June 2009 to remove most of his parathyroid glands.
7
the South Boston section of Boston. Fearing that the defendant
intended to commit suicide, the defendant's two sisters and his
niece drove to Castle Island but could not locate the defendant.
While searching, the group received a telephone call from
the defendant. He agreed to meet his sisters and niece outside
a restaurant in the South End section of Boston, across the
street from Boston Medical Center. The three women arrived at
the meeting place, where they were joined by the defendant's
brother. Shortly thereafter, the defendant appeared. His
sister testified that he looked "crazed," "disheveled," and
"distraught"; his niece testified to seeing red marks on the
defendant's neck and wrists.
On seeing his family, the defendant told them that he "did
a bad thing," a phrase he repeated about twenty-five times. The
group escorted the defendant across the street to the hospital,
and, as discussed supra, they encountered Quintiliani.
ii. Victim's apartment. Quincy police responded to the
victim's apartment shortly after 1 P.M. on August 29, 2009; the
victim was found naked under a blanket on the bed, deceased.4
4 At trial, first responders testified that they found the
victim's body covered by a sheet, wearing an ornamental gold
cross, and flanked by two crucifixes. These descriptions
differed from the account provided by the defendant in the
triage area in only one respect: the defendant told officers
that he placed the victim's underwear on her before leaving,
whereas the first responders testified that they found the
victim in a state of total undress.
8
She had red scratches on her neck. Her soiled clothing lay on
the floor near the bed.
The victim's underpants and vaginal and oral swabs
contained sperm, and deoxyribonucleic acid (DNA) testing
indicated that the defendant's DNA was consistent with the DNA
mixtures from these samples. Additionally, a swab of the
victim's neck produced a DNA mixture consistent with the
defendant's DNA.
A medical examiner testified that the victim had petechial
hemorrhages in her face, eyelids, and mouth; there were
hemorrhages in her neck muscles, and her hyoid bone was broken.
The examiner concluded that the cause of death was asphyxia by
strangulation.
b. The defendant's case. The defense at trial was lack of
criminal responsibility. Against the advice of counsel, the
defendant testified regarding the events leading to and on the
day of the murder.
The defendant testified that he had a kidney transplant in
2002 and surgery to remove most of his parathyroid glands in
June 2009. Both before and after that surgery, he was
forgetful, tired, confused, and doing "weird things," such as
stealing a check from a neighbor so that he could visit a
relative in California. On the day of the murder, while at
Foxwoods Casino, the defendant heard voices in his head. The
9
voices made threats and commanded him to jump out a window at
the casino. He had no control over his "subconscious brain";
moreover, he was experiencing paranoia, such as believing that
the driver of a pickup truck threatened to kill him for cashing
stolen checks.
The defendant stated that his delusions and paranoia
culminated at the victim's apartment, where, following an
argument over finances, voices in his head prompted him, asking,
"[W]hat are we going to do about her?" In a state of "rage," he
rushed the victim, strangled her to death, and dragged her body
into the bedroom to have sex with her. The defendant testified
that he had no intention of killing the victim, but that his
mind was "in outer space"5 during the killing.6 The only times
that he heard loud voices after his surgery was while at
Foxwoods Casino and at the victim's apartment.
5 The defendant added that he was "in a zone that [he had]
never been in in [his] life before, in a zone [he did not] wish
on anybody."
6 The defendant's trial testimony conflicted with the
account he gave officers at the hospital in several respects.
For example, when provided with transcript pages where he
previously stated that the victim proposed that they go to New
York instead of Las Vegas, the defendant denied that she ever
made that suggestion. The defendant also denied that the victim
requested $500 to pay rent. When asked to explain these
differences, the defendant claimed that his "subconscious brain"
told him to say these things to police at the hospital.
10
Dr. Charles Carroll, a psychologist and the director of
forensic services and psychology at Bridgewater State Hospital,
testified for the defense. Carroll had evaluated the defendant
in November 2013 and opined that he had schizoaffective
disorder.7 Carroll also noted that the defendant was prone to
having delusions concerning his medical conditions, such as
worrying that he was losing salt through his spine, causing
dehydration, or that he was exposed to mercury and zinc fumes
having lived above a television repair shop. Carroll offered no
opinion as to whether the defendant's mental disease made him
unable to appreciate the criminality or wrongfulness of his
conduct at the time of the murder.
c. Rebuttal. Dr. Michael Annuziata, a psychiatrist,
testified for the Commonwealth. He opined that the defendant
had no significant psychiatric disorder, showed no signs of
auditory hallucinations, and possessed adequate intellectual
functioning. Annuziata opined that the defendant had no mental
7 "Schizoaffective disorder is a mental health disorder that
is marked by a combination of schizophrenia symptoms, such as
hallucinations or delusions, and mood disorder symptoms, such as
depression or mania." Schizoaffective Disorder, Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/schizoaffective-
disorder/symptoms-causes/syc-20354504 [https://perma.cc/2X8D-
KP2E]. Carroll also testified that, when he first evaluated the
defendant in 2010, he did not see any psychotic component to his
diagnosis.
11
disease or defect at the time of the murder and, consequently,
was able to recognize the wrongfulness of his conduct.
d. Procedural history. The defendant was indicted in
October 2009 on one count of murder in the first degree in
violation of G. L. c. 265, § 1, and one count of aggravated rape
in violation of G. L. c. 265, § 22 (a). For approximately the
next three years, the defendant would alternate between pretrial
detention at a house of correction and commitment at Bridgewater
State Hospital pursuant to G. L. c. 123, § 18 (a). In
July 2010, the defendant, while awaiting trial, attempted to
harm himself. He was sent to Bridgewater State Hospital for a
thirty-day evaluation. At the conclusion of the evaluation,
Carroll opined that the defendant had major depressive disorder
with no psychotic component. Following an evidentiary hearing,
held in February 2012, the defendant was found not competent to
stand trial.
The defendant was evaluated at Bridgewater State Hospital
for a second time in October 2013; Carroll diagnosed the
defendant with schizoaffective disorder presenting in the form
of psychotic delusions and paranoia. At a December 2013
hearing, a judge again found the defendant not competent.
On July 7, 2014, following a hearing, the judge found the
defendant competent to stand trial. In September 2015, the
judge committed the defendant to Bridgewater State Hospital,
12
pursuant to G. L. c. 123, § 18 (a), because he "require[d]
hospitalization at [that] time . . . rather than await trial in
a jail setting." The judge agreed to a second commitment order
pursuant to § 18 (a) on June 10, 2016, and a third on July 31,
2017.
On February 1, 2018, the judge again found the defendant
competent to stand trial. A jury trial commenced on
February 27, 2019. At several points during trial, defense
counsel raised the possibility that the defendant was
incompetent to stand trial. Each time, the judge ordered a
competency evaluation and determined that the defendant was
competent.
On March 18, 2019, the jury found the defendant guilty on
both counts. As to the count of murder in the first degree, the
jury found the defendant guilty on the theories of deliberate
premeditation, extreme atrocity or cruelty, and felony-murder.
The defendant was sentenced to life without parole and ordered
to serve a concurrent sentence of from twenty-five to thirty
years on the rape count. The defendant filed a timely notice of
appeal.
2. Discussion. On appeal, the defendant maintains that
the judge abused his discretion in finding the defendant
competent to stand trial over defense counsel's objections that
he was unable to work with his client, that the judge should
13
have modified the jury instruction as to the consequences of a
verdict of not guilty by reason of lack of criminal
responsibility -- the so-called Mutina jury instruction8 –- to
comport with Commonwealth v. Chappell, 473 Mass. 191 (2015), and
that we should exercise our authority under G. L. c. 278, § 33E,
to reduce the defendant's convictions or grant a new trial. We
address each argument in turn.
a. Determination of defendant's competency to stand trial.
The defendant first contends that the judge abused his
discretion in finding the defendant was competent to stand trial
despite defense counsel's representations that the defendant was
unable to communicate with counsel with the requisite degree of
rational understanding and that he did not seem to understand
the proceedings against him.
For a criminal defendant to be deemed competent to stand
trial, a judge must find, at the time of trial, that the
defendant (1) "has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding"
and (2) "has a rational as well as factual understanding of the
proceedings against him." Commonwealth v. Russin, 420 Mass.
8 As discussed in further detail infra, a Mutina instruction
is a jury instruction setting forth the consequences of a
verdict of not guilty by reason of lack of criminal
responsibility. See Commonwealth v. Mutina, 366 Mass. 810, 823
& n.12 (1975).
14
309, 317 (1995), quoting Dusky v. United States, 362 U.S. 402,
402 (1960). See Commonwealth v. Dias, 402 Mass. 645, 647-648
(1988) (same). "The fact that a defendant suffers from . . .
some form of mental illness does not, by itself, mean that he is
unable to work with his attorney." Commonwealth v. Goodreau,
442 Mass. 341, 351 (2004).
The Commonwealth bears the burden of proving the
defendant's competency by a fair preponderance of the evidence.
Commonwealth v. Prater, 420 Mass. 569, 573-574 (1995). We
review a trial judge's determination that a defendant is
competent to stand trial for an abuse of discretion. See
Commonwealth v. Hung Tan Vo, 427 Mass. 464, 468-469 (1998).
In determining whether a defendant is competent, a judge
may consider, inter alia, "the defendant's demeanor and behavior
at the trial, reports of psychiatric examinations of the
defendant, statements to the judge about the defendant's conduct
and mental condition, and the testimony of expert witnesses at
the trial about the defendant's conduct and condition."
Commonwealth v. Hill, 375 Mass. 50, 54-55 (1978). Weight must
be given to a judge's own observations of a defendant's demeanor
and behavior, with the observations made closest to or during
trial being the "most appropriate" in determining competency.
Commonwealth v. Jones, 479 Mass. 1, 14 (2018).
15
i. Defense counsel's representations and judge's
responses. On the first day of trial, defense counsel raised
several concerns regarding the defendant's competency; namely,
that the defendant did not understand the difference between a
jury trial and a plea, that he was too deferential to counsel's
trial strategy, and that he held an unrealistic belief that
trial would last a single day. The judge ordered a competency
evaluation.
After interviewing the defendant and reviewing prior
competency records, a court forensic psychologist, Dr. Heather
Jackson, indicated that the defendant accurately identified the
parties and charges against him, possible dispositions, and
described how he wanted to proceed. The defendant also
understood that trial would last longer than one day and was
able to explain what the trial process would entail. Jackson
opined that the defendant was not "experiencing any significant
deficits of his competency-related abilities within his factual
or rational understanding" or exhibiting severe symptoms of
mental illness; she did not recommend further evaluation.
Following Jackson's report, the judge made findings that
the defendant met both the functional and cognitive prongs of
the Dusky test: "[The defendant] is able to have a rational
understanding of what is occurring[,] and he is also able to
identify the various participants in his trial process . . . and
16
is able to communicate with counsel." See Dusky, 362 U.S. at
402. As to defense counsel's representation that the defendant
harbored an unrealistic view that trial would last one day, the
judge credited Jackson's representation that the defendant no
longer held that belief and that, contrary to defense counsel's
earlier representation, the defendant was not agreeing "just for
the sake of agreeing with her." The judge noted defense
counsel's objection and began empanelling the jury.
On the second day of trial, defense counsel raised further
concerns; specifically, the defendant requested new counsel and
claimed that the court room-provided water was affecting his
medication.9 The judge tabled the matter and continued with jury
empanelment. By the end of the day, the defendant withdrew his
request for new counsel, and following a discussion, the judge
resolved the defendant's issue with his water by asking him to
consult with the jail medical staff. The judge also noted his
observation that defense counsel had been interacting with his
client during empanelment. During this discussion, defense
counsel raised two additional concerns: first, that the
defendant was fixating on medical records related to what
counsel considered to be a nonviable defense; and second, that
Jackson later confirmed that, while the defendant was not
9
taking psychiatric medications, he was taking medication for his
kidney transplant.
17
the defendant was insisting that there were "some outstanding
phone records" that were in the possession of the Boston Red
Sox.
To address counsel's ongoing concerns, the judge delayed
the start of the third day of trial to allow Jackson to examine
the defendant again.10 Following an hour-long evaluation,
Jackson reported that the defendant continued to have a factual
understanding of court proceedings, expressed a preference
regarding how he wanted to proceed, and was not demonstrating
serious deficits in his ability to rationally work with counsel.
Moreover, Jackson noted that the defendant denied auditory
hallucinations and was able to answer her questions clearly and
coherently. The defendant also was able to explain that the
missing telephone records concerned a "flip" cell phone with a
Red Sox sticker, not the baseball club.
Regarding the suicidal thoughts that the defendant had been
experiencing that morning, Jackson noted that he lacked any
immediate plans to harm himself. Jackson was in contact with
medical personnel at the house of correction, who were following
the case and the stress it caused the defendant; she also
learned that "two or three" of the defendant's prior G. L.
As part of her second evaluation, Jackson reviewed
10
Bridgewater State Hospital reports from 2010 to 2017, her notes
from the previous evaluation, and contacted the house of
correction where the defendant was then being held.
18
c. 123, § 18 (a), commitments stemmed from suicidal ideation,
not psychotic symptoms.
Jackson opined that the defendant was competent to stand
trial and did not recommend further evaluation. The following
exchange ensued:
Defense counsel: "Your honor, [the defendant] is suicidal,
diagnosed with a serious mental illness. He's unmedicated
for a couple of years now. He's not able to help me with
his case."
The judge: "I have no evidence of that, sir. You can't
make argument that you -- injecting facts."
. . .
Defense counsel: "I'm asking the court as the factfinder
to infer that given all of the circumstances that you
gathered thus far, your Honor, that [the defendant is] not
someone that I can work with."
The judge found that the defendant was competent to stand trial.
The judge explained that, in finding the defendant competent, he
was relying on the following: first, the court clinician twice
found the defendant to be competent in the span of three days;
second, the defendant indicated a readiness to work with his
counsel; third, suicidal ideation is not tantamount to lack of
competency; and fourth, some of the defendant's most recent
G. L. c. 123, § 18 (a), commitments were attributable to
19
suicidal thoughts, not his diagnosed condition of
schizoaffective disorder.11
At the end of the sixth day of trial, the judge noted that
the defendant and defense counsel had conferred with each other
as evidence was introduced. On the morning of the seventh day
of trial, the judge again observed that the defendant had been
an active participant throughout trial.12 Later that day, during
discussion of the sexual assault kit, defense counsel requested
a sidebar and informed the judge that the defendant had ceased
communicating with him, adding, "I don't think he's physically
doing okay now." The judge excused the jury for the day. The
parties discussed the defendant's mental state; the judge
acknowledged that the defendant "had a somewhat different affect
. . . than he ha[d] had through all of the earlier portions of
the trial."
11See Commonwealth v. Laurore, 437 Mass. 65, 79 (2002)
("Even an entirely rational defendant would be depressed, and
might be suicidal, during a murder trial where the proof against
him is substantial, and where he is facing life imprisonment");
Commonwealth v. Lameire, 50 Mass. App. Ct. 271, 277 (2000)
(claimed suicide attempt during trial did not preclude judge's
finding of competency).
12The judge observed, "For the record, the court has
observed throughout the trial that [the defendant] has
interacted, that he has been alert, he has been watching the
screen when exhibits have been up. He has been interacting and
speaking with counsel throughout the trial."
20
The judge requested the assistance of a court room
clinician, and Dr. Leah Robertson joined the parties. Robertson
examined the defendant. She reported that the past week, which
featured significant video evidence of the victim and the crime
scene, had been stressful for the defendant, that the
defendant's thoughts had kept him awake the previous night, and
that the defendant was tired, distracted, and having difficulty
focusing. Without opining as to his competency, Robertson
recommended that the defendant be sent to Bridgewater State
Hospital for observation and treatment. The judge ordered the
defendant committed pursuant to G. L. c. 123, § 18 (a).
Following a weekend break, the defendant returned to court
on the next trial date, at which point the judge was given
medical reports opining that the defendant was medically stable;
defense counsel shared his observations of the defendant's
difficulty focusing that morning. During a mid-morning break,
the judge clarified that he had reviewed Carroll's 2015 report,
a 2017 report from a court clinician, and prior counsel's motion
to withdraw. The judge made findings:
"The [c]ourt does not see any difference between what is
occurring now and what's consistently been occurring all
along, which is that [the defendant] has complained about
voices which are characterize[d] sometimes as negative
thoughts. They have not seemed to intrude at all, and, in
fact, Dr. Carroll raised significant questions about
whether or not they were legitimate. . . . [W]hile there
was a period of incompetency some time ago, the recent[]
[reports] have all come back that he's competent."
21
The trial continued. On the ninth day of trial, the judge
observed that the defendant "was engaged with counsel several
times, was conferring with counsel several times," and had taken
notes when a witness testified. On the tenth day of trial, the
defendant testified. At the conclusion of his testimony, the
judge stated that the defendant responded normally to the
questions asked; in addition, the judge noted that the defendant
"has shown his functionality through this trial," and "[e]ven if
his counsel may feel that [testifying] was not the most prudent
choice that he had[,] that was his choice under the law."
At sentencing, the judge referenced his previous
observations and stated that he had "no question" about the
defendant's competency throughout the proceedings.
ii. No abuse of discretion. As set forth supra, the judge
made multiple determinations regarding the defendant's
competency over the course of the trial. In doing so, the judge
considered the testimony of court clinicians, psychiatric
evaluations, his own observations of the defendant's behavior,
and statements from defense counsel about the defendant's
"conduct and mental condition." Hill, 375 Mass. at 54-55.
Significantly, the judge made these determinations during the
trial, see Jones, 479 Mass. at 15 ("Because competency may be
fluid . . . it is most significant that the defendant was found
22
competent in a hearing during the trial" [emphasis added]), with
the benefit of contemporaneous psychiatric evaluations.
Contrary to the defendant's argument that the judge ignored
defense counsel's concerns, as set forth supra, with every
concern raised by counsel, the judge responded by seeking the
assistance of medical experts, reviewing the defendant's mental
health history, and sending the defendant to Bridgewater State
Hospital for further evaluation when it became necessary.
Additionally, the judge actively monitored the defendant's
ability to communicate with and assist his lawyer,13 scanning for
manifestations of incompetency as the trial progressed.14 See
Dusky, 362 U.S. at 408. See also Commonwealth v. Chatman, 473
Mass. 840, 847-848 (2016). The judge properly considered the
13For example, when the defendant indicated that he wanted
to testify against the advice of counsel, the judge engaged him
in a conversation about his knowledge of the right to testify in
his defense. The defendant responded, "Right. [My lawyer]
didn't tell me the laws about [testifying,] but he said that was
my right if I wanted to or not to and he said it was best for me
not to testify."
14Contrary to the defendant's argument, the judge did not
base his findings solely on his own observations. The record
shows that the judge's comments regarding the observed working
relationship between counsel and client was one data point,
among many, used to evaluate competency. In fact, the judge's
comments postdated two separate evaluations of the defendant,
conducted by the court room clinician. See Commonwealth v.
Companonio, 445 Mass. 39, 50 (2005), S.C., 472 Mass. 1004 (2015)
("The time frame for determining a defendant's competency to
stand trial is the condition of the defendant at the time of
trial" [citation and quotation omitted]).
23
expert opinions of Jackson and Robertson, the staff of
Bridgewater State Hospital, psychiatric reports dating back to
2014, and his own observations at trial, when considering
defense counsel's representations as to the defendant's
behavior. See Commonwealth v. Gibson, 474 Mass. 726, 738 (2016)
(judge not required to credit defense counsel's unsupported
claim of incompetency); Commonwealth v. Vailes, 360 Mass. 522,
524 (1971) (judge entitled to rely on recent "psychiatric
report[s] as one of the elements bearing on the issue of the
defendant's competenc[y]").15
In sum, the judge did not abuse his discretion in finding
the defendant competent to stand trial.
b. The Mutina instruction. The defendant next argues that
the judge erred by instructing the jury on the consequences of a
verdict of lack of criminal responsibility as set forth in the
Model Jury Instructions on Homicide (2018). The defendant
maintains that all references to commitment time should have
15The judge referenced the 2015 report by Carroll ("[I]n my
opinion, [the defendant] currently has a full factual and
rational understanding of the proceedings against him"), and the
2017 report by court clinician Dr. Frederick Kelso ("[I]n my
opinion [the defendant] is now competent to stand trial"). See
Vailes, 360 Mass. at 524. Moreover, on the third day of trial,
the judge learned that several of the defendant's pretrial
hospitalizations were for suicidal ideation, not his
schizoaffective disorder. See Goodreau, 442 Mass. at 351-352(defendant's suicidal ideation prior to plea "does not cast
doubt on the opinion that he was competent").
24
been omitted from the instruction to avoid suggesting that the
defendant could be released following a brief stay in a mental
hospital.
A Mutina instruction is a jury instruction that outlines
the consequences of a verdict of not guilty by reason of lack of
criminal responsibility. See Commonwealth v. Mutina, 366 Mass.
810, 823 & n.12 (1975). Its function at the end of trial is
"to avoid unnecessary speculation by the jury and ensure
that they . . . 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.'"
Chappell, 473 Mass. at 206, quoting Mutina, 366 Mass. at 822.
Prior to this court's decision in Chappell, the Mutina
instruction mentioned two time periods. First, it explained
that if a defendant were found not guilty by reason of a lack of
criminal responsibility, the judge could order the defendant
hospitalized at a facility for a period of forty days for
observation and examination (observation period). Second, the
instruction noted that, if a defendant remained mentally ill and
discharge would create a substantial likelihood of serious harm
to the defendant or others, then the defendant could be
committed to a mental health facility for six months (commitment
25
period). See Model Jury Instructions on Homicide 11-12 (2013);
Commonwealth v. Waweru, 480 Mass. 173, 188 (2018).
The model Mutina instruction, as outlined supra,
"underestimate[d] the potential . . . length of confinement of a
defendant found not criminally responsible" in the minds of
jurors. Chappell, 473 Mass. at 205. See Commonwealth v.
Johnston, 467 Mass. 674, 701-702 (2014) (judge did not err in
refusing to provide defendant's proposed addition to model jury
instructions that "he could spend the rest of his life in a
locked facility"). Accordingly, the court in Chappell proposed
a provisional instruction that (1) omitted reference to the
observation period and (2) clarified that the commitment period,
subject to the court's review, could be indefinite: "we think
an instruction that omits references to specific time frames for
observation and mentions the potential for successive commitment
orders that could span the duration of the defendant's life
. . . may better accomplish the[] purpose[]" of the Mutina
instruction. Chappell, 473 Mass. at 206. The 2018 revisions to
the model jury instructions reflect the Mutina instruction
proposed by the court in Chappell. See Model Jury Instructions
on Homicide 11-12 (2018).
In the present case, the defendant asked the judge to omit
not only the observation period, but also the six-month
26
commitment period from his instructions.16 The defendant
contends that the rationale for omitting reference to the forty-
day observation period applies with equal force to the six-month
initial commitment period. As set forth supra, however, the
court in Chappell considered two periods of confinement –- an
observation period and a commitment period; the court
recommended omission of the former, not the latter. Chappell,
473 Mass. at 206. We see no reason to modify that conclusion.
Here, the judge instructed the jury using language
virtually identical to the Mutina instruction from the 2018
Model Jury Instructions on Homicide:
"If the court concludes that the defendant is mentally ill,
and that his discharge would create a substantial
likelihood of serious harm to himself or others, then the
court will grant the petition and the defendant will be
committed to a proper mental facility or Bridgewater State
Hospital initially for a period of six months. At the end
of that six months, and every year thereafter, the court
will review the order of commitment. . . . There is no
limit to the number of such renewed orders of commitment 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 life."
16The defendant proposed the following alterations to the
Mutina instruction set forth in the model instructions
(underlined text are additions, strikethroughs are deletions):
"If the court concludes that the defendant is mentally ill
and that his discharge would create a substantial
likelihood of serious harm to himself 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 The court will
periodically reviews the order of commitment."
27
This was not error.17 See Commonwealth v. Bonner, 489 Mass. 268,
285 (2022), quoting Commonwealth v. Howard, 479 Mass. 52, 61
(2018) ("we have urged trial judges to adhere to the Model Jury
Instructions on Homicide, and to 'proceed with caution' when not
doing so"); Green, petitioner, 475 Mass. 624, 629 (2016)
("Instructions that convey the proper legal standard,
particularly when tracking model jury instructions, are deemed
correct"). See also Commonwealth v. Aduayi, 488 Mass. 658, 675-
676 (2021) (judge did not err in giving pre-Chappell Mutina
instruction where judge employed model jury instruction
applicable at time of defendant's trial).18
c. Review under G. L. c. 278, § 33E. We recognize that
the defendant presented substantial evidence that he lacked
criminal responsibility at the time he killed the victim.
17Although the defendant sought to modify the Mutina
instruction to address the concern that the jury might believe a
long-term or lifetime commitment was precluded by a verdict of
lack of criminal responsibility, the portion of the instruction
stating expressly that the defendant could be committed for his
lifetime was provided. See Chappell, 473 Mass. at 205.
18The defendant's reliance on Aduayi is misplaced. There,
we affirmed a conviction of murder in the first degree although
the trial judge included time frames of observation and
commitment in his instruction on lack of criminal
responsibility. Aduayi, 488 Mass. at 673-674. In doing so, we
noted that the defendant's trial predated our decision in
Chappell, and consequently, the defendant was not entitled to
the benefit of the modified instruction, which was prospective
only. Id. at 675.
28
However, the Commonwealth presented substantial evidence to the
contrary. The jury were entitled to reject the testimony and
opinions of the defendant and his expert and instead to credit
the contrary evidence, including the opinion of the
Commonwealth's expert. In short, the jury were entitled to
conclude that the defendant was criminally responsible. See
Johnston, 467 Mass. at 706 ("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"). Based on our careful review of the entire record,
we decline to reduce the degree of guilt, order a new trial, or
grant other relief under G. L. c. 278, § 33E.
Judgments affirmed.