Commonwealth v. Mulgrave , 472 Mass. 170 ( 2015 )

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SJC-11569
COMMONWEALTH vs. CRAIG MULGRAVE.
Essex. March 6, 2015. - July 13, 2015.
Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.
Homicide. Evidence, Spontaneous utterance, Expert opinion,
Impeachment of credibility, Cumulative evidence, Relevancy
and materiality. Witness, Expert, Impeachment. Mental
Impairment. Practice, Criminal, Capital case, Instructions
to jury.
Indictment found and returned in the Superior Court
Department on April 2, 2010.
The case was tried before David A. Lowy, J.
Robert S. Sinsheimer (Lisa Parlagreco with him) for the
defendant.
David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
HINES, J. In March, 2012, a Superior Court jury convicted
the defendant, Craig Mulgrave, of murder in the first degree on
the theory of extreme atrocity or cruelty in the stabbing death
2
of his wife, Christina Mulgrave.1 On appeal the defendant
asserts that the judge erred in certain evidentiary rulings that
violated his right to due process under the United States
Constitution and the Massachusetts Declaration of Rights:
(1) admitting in evidence as an excited utterance a cellular
telephone text message sent by the victim; (2) granting the
Commonwealth leave to present general evidence that the
defendant made statements, which previously were suppressed, to
impeach proffered evidence that he was noncommunicative; and (3)
excluding the proffered testimony of a defense expert witness.
The defendant also argues error in the jury instructions on
diminished capacity. We discern no error in the judge's
evidentiary rulings or instructions to the jury. We decline to
exercise our authority pursuant to G. L. c. 278, § 33E, and
affirm the defendant's convictions.
1. Background. a. The Commonwealth's case. The jury
could have found the following facts. The defendant and the
victim were married in Jamaica in July, 2008. The two had met
while the victim was on vacation in Jamaica, where the defendant
had lived. In October, 2009, the defendant obtained a visa and
moved to Las Vegas, Nevada, to join the victim. The couple
1
The Commonwealth also had proceeded under a theory of
deliberate premeditation, but the jury did not find the
defendant guilty under that theory.
3
moved to Haverhill one or two months later, where they would be
closer to the victim's two children and her sister.
The victim's sister and son testified that the defendant
was depressed and frustrated that he was unable to find
employment. In February, 2010, the victim told her sister that
there were problems in the marriage and that she had asked the
defendant to go back to Jamaica, but he would not leave. Two
letters were read in evidence, one from the victim to the
defendant and the other his response. The victim's letter
expressed her difficulties with the marriage and asked the
defendant either to make the marriage work or to separate. The
defendant responded by also expressing his unhappiness in the
marriage and telling her he felt "unhappy, depressed, without a
job, unemployed, dependent on [her] for everything." The
defendant expressed his love for her and said that he wanted to
"make this right."
On February 7, 2010, the day of the National Football
League's Super Bowl, the couple hosted the victim's family for
dinner at their apartment. The victim's son, Evan McCain,
testified that the defendant left the house during the party and
went out walking "all day." The next evening, the victim came
home to find the defendant unconscious and lying on the floor
with a string tied into a noose around his neck, a knife tucked
into the waistband of his pants, and a bottle of alcohol nearby.
4
The victim, a nurse, took a photograph of the defendant but did
not call for medical care. She sent Evan a text message, which
prompted him to come over about ten minutes later. The victim
and Evan stood over the defendant talking for about ten minutes,
during which time the defendant never responded or acknowledged
their presence. Evan testified that the defendant "drank a
bunch of liquor" that evening. He left the defendant a
handwritten note expressing his disapproval.
The following day, on February 9, the victim had an
interview at Lowell General Hospital and, thereafter, went to
her sister's house. During this visit, the victim told her
sister about the incident the prior evening. The sister asked
the victim to stay at the sister's home that evening. The
victim, however, "was adamant about going home to handle her
business" and left at about 1 P.M. for the forty-minute drive to
her home. Two hours later, at 3:03 P.M., the victim sent a text
message to Evan stating, "He is threatening to kill me I am
scared he said if I pick up the phone he will kill me." Six
minutes after that, at 3:09 P.M., she telephoned 911 and
frantically reported that her husband was stabbing her.
A sergeant with the Haverhill police department arrived at
the couple's apartment within two minutes of the 911 call. As
the sergeant entered the walkway to the apartment building, he
heard a female screaming from one of the upstairs apartments.
5
He ran up the stairs and entered the apartment on the left side
of the hallway. A few seconds later, a man came out of the
apartment on the right side of the hallway. The sergeant asked
him if he heard anything, and the man, later identified as the
defendant, responded, "It's in here. I just killed my wife."
The defendant was standing at the door to the apartment he
shared with the victim; he was covered in blood and holding a
knife. The defendant complied with the sergeant's requests to
drop the knife and get down on the floor. After the defendant
was handcuffed, the sergeant asked him, "Where is she?," and he
motioned toward the office in the front of the apartment.
Inside the office, the victim was lying on her left side on
the floor in a pool of blood. Emergency medical technicians
(EMTs) arrived and found the victim with a weak pulse and barely
breathing. The first attempt to ventilate the victim was
unsuccessful because air from a breathing tube placed through
the victim's mouth escaped from a stab wound in her neck. A
second tube was inserted directly into the stab wound and down
into the lungs. As the EMTs continued to render aid to the
victim, they transported her to Merrimack Hospital, where she
was pronounced dead shortly after arrival.
An autopsy revealed twelve stab wounds, twelve incise
wounds, and miscellaneous blunt force injuries. Of the stab
wounds, nine were to her torso, one to her left arm, one to her
6
right arm, and one to her right shin. Three of the stab wounds
penetrated her lungs, two penetrated her liver, and a stab wound
in her neck penetrated her trachea. The medical examiner who
performed the autopsy testified that the specific cause of death
was blood loss and puncture injuries to the lung and trachea,
which inhibited the body's ability to oxygenate. The crime
scene analyst who inspected the apartment testified that the
location of the blood inside the office demonstrated that the
victim was upright when some of the stab wounds were inflicted
and was lying down or very low to the ground when other stab
wounds were inflicted. The knife that the defendant was holding
when the sergeant arrived had the victim's blood on it and the
defendant's fingerprint on the handle.
The defendant was arrested at the scene and taken to the
Haverhill police station. He was wearing the same clothes as
during the incident the prior evening and the string was still
tied around his neck as a noose. The patrolman who transported
the defendant testified that the defendant had no alcohol odor,
no difficulty walking, and no difficulty getting into or out of
the cruiser. A bottle of rum, approximately two-thirds full,
and several prescription medication bottles containing pills
were seized from the apartment after the stabbing.
b. The defendant's case. The defendant conceded guilt as
to murder in the second degree but argued that depression
7
rendered him incapable of the elevated mental state required for
murder in the first degree. He introduced the testimony of
three mental health experts and his cousin. The experts all had
experience working with depression and explained the various
stressors that could worsen depression symptoms. Specifically,
the experts noted that unemployment, cultural transition, and
breakdown of a marriage can intensify depression. The
defendant's cousin testified that she talked to him about once a
week while he was in Las Vegas, but hardly at all once he was in
Massachusetts. She stated that it was a big opportunity for the
defendant to go to the United States and that he would have
looked like a failure if he had returned to Jamaica.
The defendant's first expert, Ronald P. Winfield, a
psychiatrist, did not interview the defendant but explained that
depression is an imbalance in brain chemicals that can cause
unusual brain function, especially when triggered by stressors.
Two additional experts interviewed the defendant multiple times
and diagnosed him with a major depressive disorder at the time
of the stabbing. Both experts, Robert H. Joss, a forensic
psychologist, and Elizabeth Davis, a psychiatrist, opined that
the defendant lacked the capacity to deliberately premeditate or
to act with extreme atrocity or cruelty because of his
depression.
8
Doctors Joss and Davis reviewed the defendant's medical
records from before the stabbing, which showed that the
defendant was diagnosed on December 22, 2009, with depression
with anxiety, and was prescribed Celexa, an antidepressant. The
record of the appointment references tearfulness, suicidal
ideation, and anxiety on the part of the defendant. Based on
the number of pills remaining in the Celexa bottle found in the
apartment, the defendant was not taking this medication as
directed, rendering the drug ineffective in ameliorating his
symptoms. During his interviews of the defendant, Dr. Joss
observed that the defendant appeared depressed, weary, and
without much energy. Doctor Joss opined that the defendant was
not faking depression because his prearrest medical records were
consistent with his symptoms after the stabbing.
Doctors Joss and Davis testified that they would have
considered immediate psychiatric hospitalization of the
defendant if they had found him in the state he was in the
evening before the stabbing. The defendant told the experts
that, on the night before the stabbing, he consumed an excessive
amount of alcohol and ingested pills.2 Doctor Davis opined that
the defendant's actions on the night before the stabbing
2
These statements were not admitted for their truth but
only as information on which the experts based their opinions.
9
indicated that he was in the "throes of making a suicide
attempt."
c. The Commonwealth's expert. In rebuttal, the
Commonwealth called Martin Kelly, a psychiatrist who evaluated
the defendant and reviewed medical records, including the
reports from Drs. Joss and Davis. Doctor Kelly opined that the
defendant did not suffer from any mental defect or disease at
the time of the stabbing; instead, he had situational or
reactive depression. He described situational or reactive
depression as a psychological condition, not a mental disease.
He further explained that this condition is time limited and
occurs after some sort of loss, such as a breakup of a
relationship, unemployment, or cultural adjustment.
d. Excluded evidence. Prior to trial, a motion judge
granted the defendant's motion to suppress statements made to
police shortly after booking. The motion judge concluded that
the statements were made in violation of the Fifth Amendment to
the United States Constitution and art. 12 of the Massachusetts
Declaration of Rights. At trial, however, the defendant sought
to introduce evidence, through cross-examination of a police
officer, that he was silent and noncommunicative during booking
as a factor demonstrating diminished capacity. The Commonwealth
argued that such testimony would open the door to allow the
suppressed statements to be admitted. The trial judge noted
10
that the purpose of the rebuttal would be to show the
defendant's capacity to answer questions, not the content or
truth of the statements, and indicated that he would be
inclined, if the defendant elicited such testimony, to allow the
Commonwealth to introduce evidence about the number of questions
asked and the defendant's manner and demeanor in answering the
questions. The fact that the statements were made, but not the
content of the statements, would be admitted. The defendant
declined to introduce the evidence in light of that ruling.
The defendant also sought to introduce the testimony of a
fourth medical expert, William Alan Stuart, an emergency
medicine physician. The defendant intended to have Dr. Stuart
testify to the effects of combining Celexa and alcohol and that
the defendant's actions the night before the stabbing
constituted a suicide attempt. Further, this proposed testimony
would have included the witness's opinion that he too would have
commenced an involuntary commitment if he had been aware of the
events occurring the evening before the stabbing.
After conducting a voir dire, the judge denied the
defendant's request to introduce testimony from this expert.
The judge excluded the testimony on the following grounds: (1)
the proposed testimony was cumulative, as Dr. Davis already had
opined that the defendant made a suicide attempt; (2) the
proposed testimony had only limited relevancy, because the jury
11
could infer that the defendant was suicidal without expert
testimony; (3) the jury likely would be confused as to the
relevant time frame (the night before the stabbing or the day of
the stabbing) in which to consider the defendant's mental state;
and (4) the testimony, to the extent that it focused on what
Evan and the victim should or should not have done on finding
the defendant on the evening before the stabbing, would cause
undue prejudice.
2. Discussion. a. Evidentiary issues. i. Text message.
The defendant argues that the judge erred in admitting the
content of the text message sent by the victim to her son
approximately six minutes before she telephoned 911. The judge
reasoned that the written statement, although hearsay, was
admissible under the spontaneous utterance exception to the
hearsay rule. Mass. G. Evid. § 803(2) (2015). The defendant
objected to the admission of the text message, so we review for
prejudicial error. Commonwealth v. Sleeper, 435 Mass. 581, 590
(2002).
Under our rules, admissibility under the spontaneous
utterance exception requires that (1) "there is an occurrence or
event 'sufficiently startling to render inoperative the normal
reflective thought processes of the observer'"; and (2) the
statement was "a spontaneous reaction to the occurrence or event
and not the result of reflective thought." Commonwealth v.
12
Irene, 462 Mass. 600, 606-607, cert. denied, 133 S. Ct. 487(2012), quoting Commonwealth v. Santiago, 437 Mass. 620, 623
(2002). The defendant argues that the text message sent by the
victim fails to meet either requirement for admissibility.3 We
disagree and conclude that the judge committed no error in
admitting the victim's cellular telephone text message in
evidence.
While Massachusetts appellate courts have yet to approve
admission of text messages or any other writing under the
spontaneous utterance exception to the hearsay rule, this
exception does not categorically exclude written statements from
its scope. We have acknowledged that a written statement may be
considered a spontaneous utterance if it satisfies a heightened
indicia of reliability. See Commonwealth v. DiMonte, 427 Mass.
233, 237-240 (1998). There we explained that "[b]ecause a
writing is more suspect as a spontaneous exclamation than is an
oral statement, the circumstances of the writing would have to
include indicia of reliability even more persuasive than those
required for an oral statement before we could conclude that the
3
The defendant also argues that the message was not
sufficiently authenticated as being sent by the victim. In the
circumstances of this case, where the defendant did not contest
the authenticity of the text message during the trial, the
authenticity requirement was satisfied by Evan's testimony and
his cellular telephone records showing a message originating
from the victim at 3:03 P.M.
13
writing qualified as a spontaneous exclamation." Id. at 239.
The heightened indicia of reliability requirement, however, does
not impose an additional test in the spontaneous utterance
analysis. Rather, it is intended only to ensure that a writing,
which generally is a product of reflection, meets the
spontaneity requirement. Thus, although we examine a writing
more closely on the element of spontaneity, the analysis is the
same as for an oral statement.
The first requirement, that there be an exciting event
giving rise to the exception, is clearly satisfied by the
statement itself, the 911 telephone call, and the victim's
condition approximately ten minutes later.4 See Commonwealth v.
Nunes, 430 Mass. 1, 4 (1999), citing Commonwealth v. Whelton,
428 Mass. 24, 27 (1998) ("The statement itself may be taken as
proof of the exciting event"). The victim stated in her text
message, "He is threatening to kill me I am scared he said if I
pick up the phone he will kill me." Although the record
4
The defendant acknowledges that the content of the text
message statement itself satisfies this requirement, but
asserts, without citation to any cases, that the confrontation
clause of the Sixth Amendment to the United States Constitution
requires that there be additional evidence of the event besides
the statement. Regardless of whether the defendant's argument
has any basis in law, the occurrence of an exciting event having
very recently occurred was confirmed by the condition of the
victim and apartment when the police arrived minutes later. See
Commonwealth v. Whelton, 428 Mass. 24, 26-27 (1998).
14
contains no further information about the events occurring at
that moment, it is established that six minutes later the victim
frantically telephoned 911 to report that her husband was
stabbing her and, only a few minutes after that, she was found
barely breathing and lying in a pool of blood.
In determining the second element of spontaneity, we
consider the circumstances of the statement, including the
temporal relation between the event and the statement, and the
tone and manner of the declarant. Commonwealth v. Simon, 456
Mass. 280, 296, cert. denied, 562 U.S. 874 (2010); Santiago, 437
Mass. at 623, 625; DiMonte, 427 Mass. at 239. Because the
statement at issue here is a writing, we also consider whether
and to what extent the requisite spontaneity is compromised by
this method of communication.
Here, the circumstances of the statement, although in the
form of a cellular telephone text message, are entirely
consistent with spontaneity. As described above, the victim
telephoned 911 to report that the defendant was stabbing her six
minutes after the text message to her son reporting that the
defendant was "threatening to kill" her. This sequence of
events closely resembles a scenario mentioned in DiMonte, 427
Mass. at 239, where we observed that a writing may be admissible
"when a victim is held hostage and is unable to communicate in
15
any way other than writing or when a person's vocalization is
impaired" (footnote omitted).
The circumstances under which the text message was sent
adequately compensate for the limitations inherent in a writing
and meet the spontaneity test. Cellular telephone text messages
are a unique form of written communications in that they allow
for instant communication in much the same way as oral
communications. The cellular technology that allows for the
sending and receiving of a text message instantly, often as a
substitute for oral expression, diminishes the concern about
spontaneity that might arise with other more deliberative modes
of written communication. Further, the growth of cellular
telephones has made text messaging and other types of written
electronic statements ubiquitous forms of rapid communication.5
For a person proficient in the use of the cellular telephone
technology, sending a text message may involve no more effort
5
In Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md.
2007), a judge of the United States District Court for the
District of Maryland reviewed case law interpreting evidentiary
rules for application to electronic communications. The judge
concluded that electronically stored communications may be
admissible under the Federal rule governing spontaneous
utterances, Fed. R. Evid. § 803(2), noting the "prevalence of
electronic communication devices, and the fact that many are
portable and small, means that people always seem to have their
laptops, [personal digital assistants], and [cellular
telephones] with them, and available for use to send [electronic
mail messages] or text messages describing events as they are
happening." Id. at 569.
16
than verbalizing a thought, feeling, or emotion in response to
an event. A cellular telephone user may choose between verbal
and written communication without sacrificing immediacy in the
communication of the message.6 This opportunity for instant
communication by way of cellular telephone technology elevates
text messages, at least on the spontaneity scale, beyond the
level of an ordinary writing. See DiMonte, 427 Mass. at 239.
Thus, we conclude that the spontaneity requirement is not
undermined in this case by the fact that the statement is a
writing in the form of a cellular telephone text message.
Although the temporal relation requires no definite and
fixed limit of time for spontaneity, "the further the statement
from the event, the more difficult it becomes to determine
whether the statement is the result of reflection, influenced by
other factors." DiMonte, 427 Mass. at 239, citing Commonwealth
v. McLaughlin, 364 Mass. 211, 223 (1973). The rationale behind
the temporal relation is that statements made before the
6
More text messages are sent and received by cellular
telephone users than voice minutes are expended. According to a
Nielsen study conducted in 2012, ninety-four per cent of United
States consumers age sixteen years and older use a cellular
telephone, and the average United States cellular contract user
sent or received 764.2 text messages and used 644.1 voice
minutes per month. See The Nielsen Company, The Mobile
Consumer: A Global Snapshot 7, 19 (Feb. 2013), available at
http://www.nielsen.com/content/dam/corporate/uk/en/documents/Mob
ile-Consumer-Report-2013.pdf [http://perma.cc/VYX5-WCL8], citing
Nielsen Consumer Value Metrics (2012).
17
declarant has time to "contrive and misrepresent" would be
admitted, while others made after the "exciting influence [has
lost] its sway" would be inadmissible. McLaughlin, supra,quoting 6 J. Wigmore, Evidence § 1750 (3d ed. 1940). In this
case, the statement occurred within a reasonable temporal
proximity to the exciting event because the victim's subsequent
911 telephone call and death shortly thereafter demonstrate that
the event was in progress when she sent the text message.
Likewise, the tone and manner of the declarant, as
evidenced by the writing itself, supports a determination that
this statement was spontaneous, and thus reliable. See Simon,
456 Mass. at 296. The message was one sentence without any
punctuation. The message related only to the circumstances of
the threat to the victim's safety and her reaction (fear) to
that threat. In contrast, the facsimile transmission in
DiMonte, 427 Mass. at 234 n.4, which we said was not
spontaneous, was much longer and related to arrangements for an
upcoming concert at which the victim was to sing in addition to
the prior assault.
For all the reasons explained above, we are persuaded that
the circumstances of the statement, the tone and manner of the
statement and its timing, establish the second requirement of
the spontaneous utterance exception to the hearsay rule. The
judge's decision to admit the statement was sound.
18
Last, statements admissible as spontaneous utterances must
also satisfy the confrontation clause of the Sixth Amendment to
the United States Constitution. See Irene, 462 Mass. at 609.
"The confrontation clause bars the admission of testimonial out-
of-court statements by a witness who does not appear at trial
unless the witness is unavailable to testify and the defendant
had an earlier opportunity for cross-examination." Id. at 617,
citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
"Whether a particular statement is 'testimonial' lies at the
core of this analysis." Irene, supra, citing Davis v.
Washington, 547 U.S. 813, 823-824 (2006). The defendant asserts
that the statement was testimonial in fact because the victim
did not ask for help or describe an earlier event and that she
instead intended to establish the identity of her potential
perpetrator. We disagree with the defendant's characterization
of the statement.
"A statement is testimonial in fact if 'a reasonable person
in the declarant's position would anticipate the statement's
being used against the accused in investigating and prosecuting
the crime.'"7 Simon, 456 Mass. at 297, quoting Commonwealth v.
7
Whether a statement is testimonial in fact is the second
step in determining whether a statement was testimonial.
Commonwealth v. Simon, 456 Mass. 280, 297, cert. denied, 562
U.S. 874 (2010). The statement was not testimonial per se,
which is the subject of the inquiry in the first step, because
19
Gonsalves, 445 Mass. 1, 12-13 (2005), cert. denied, 548 U.S. 926(2006). Although the victim did not explicitly ask for help, she
wrote, "He is threatening to kill me I am scared he said if I
pick up the phone he will kill me." Further, she did not name
the defendant, a fact likely to be communicated by a declarant
attempting to establish her perpetrator's identity. Rather, the
statement is more properly characterized as one made in the
context of an ongoing emergency for which the victim sought
assistance. Thus, the judge did not err in admitting the text
message.
ii. Availability of suppressed statement for impeachment.
The defendant argues that the judge erred in ruling that the
Commonwealth would be permitted to rebut evidence of the
defendant's mental capacity insofar as it rested on the claim
that he was noncommunicative during booking and during his
receipt of Miranda and telephone rights. Although the judge
explicitly ordered that the content of the statements would not
be admitted, he ruled that the Commonwealth would be allowed to
ask certain questions, such as, "Were there other questions
asked . . . [h]ow many other questions were asked . . . what was
his manner and demeanor in answering those questions and what
were the general areas of conversation." The defendant argues
the statement was not made in a "formal or solemnized form" or
"in response to law enforcement interrogation." Id.20
that this ruling was error for two reasons: (1) the statements
were involuntary and thus inadmissible for any reason; and (2)
even if the statements were allowed to impeach the defendant's
testimony, they could not be used to impeach his experts'
testimony.
Both of these arguments are unavailing. The trial judge,
after reviewing the transcript from the hearing on the motion to
suppress and the video recording of the interrogation, concluded
that the defendant's statements were voluntary because the
defendant did not appear to be under the influence of drugs or
alcohol, reported that he physically felt good, was tuned into
subtleties, and responded to the police officer directly on the
issues.8 The judge's conclusion is well supported by the record.
See Commonwealth v. LeBlanc, 433 Mass. 549, 554 (2001).
Accordingly, the rule cited by the defendant, that "any criminal
trial use against a defendant of his involuntary statement is a
denial of due process of law," is not applicable here (emphasis
in original). Commonwealth v. Durand, 457 Mass. 574, 591-592
(2010), quoting Mincey v. Arizona, 437 U.S. 385, 398 (1978).
The defendant's argument fails for the additional reason
that the judge precluded the admission of the content of the
8
The motion judge, suppressing the statements on other
grounds, did not decide the issue of voluntariness.
21
statements. The judge ruled that only evidence of the
defendant's ability to communicate would be admitted and only
for the purpose of impeaching the defendant's claim that he was
noncommunicative in the aftermath of the killing. Evidence of
the defendant's ability to answer questions, offered only to
rebut evidence of the defendant's noncommunicability, is not
barred by the Fifth or Fourteenth Amendment to the United States
Constitution, or by art. 12.9
The defendant next argues that this ability to communicate,
as established by the existence of (the subsequently suppressed)
statements to the police, was not admissible to impeach his
expert witnesses even if such statements would have been
admissible against him. The defendant's argument stems from the
limitations on the impeachment exception to the exclusionary
rule as set forth in James v. Illinois, 493 U.S. 307, 320
(1990). The exclusionary rule bars the prosecution's use of
statements, even if voluntary, that were obtained in violation
of Miranda v. Arizona, 384 U.S. 436, 444 (1966), unless an
exception applies. James, supra at 312, citing Harris v. New
York, 401 U.S. 222, 225 (1971), and Oregon v. Hass, 420 U.S.
9The defendant's silence in response to Miranda warnings
and booking questions, sought at trial to demonstrate mental
impairment, was considered by the motion judge as evidence that
the defendant invoked his right to remain silent and was
accordingly used to support suppression.
22
714, 722 (1975). Under the impeachment exception, "prosecutors
[may] introduce illegally[10] obtained evidence for the limited
purpose of impeaching the credibility of the defendant's own
testimony." James, supra at 312. In James, the United States
Supreme Court declined to extend the impeachment exception to
allow impeachment of "all defense witnesses" because doing so
"would not further the truth-seeking value with equal force but
would appreciably undermine the deterrent effect of the
exclusionary rule." Id. at 320. We have yet to interpret the
meaning of "all defense witnesses," and we decline to do so now.
Suffice it to say, evidence that the defendant answered a number
of questions, without relating the content of the statements,
that is offered for the purpose of showing communicability is
not an impermissible use of illegally obtained statements and,
therefore, does not offend the rule in James.
iii. Exclusion of expert witness testimony. The defendant
argues that the judge violated his right to present a defense
and call witnesses under the Sixth Amendment and under art. 12
by excluding the testimony of Dr. Stuart, whose testimony would
review the effects of combining Celexa and alcohol and was
10
The statements suppressed in James v. Illinois, 493 U.S.
307, 313 (1990), were obtained in violation of the Fourth
Amendment to the United States Constitution, not the Fifth
Amendment to the United States Constitution as applicable in
this case.
23
proffered to show that the defendant's conduct the night before
the stabbing was a legitimate suicide attempt. The judge
excluded the testimony as cumulative, of limited relevancy, and
unduly prejudicial, and because it could confuse the jury as to
the relevant time frame in which to consider the defendant's
mental state. "[A] trial judge has the discretion to control
the scope of the examination of witnesses . . . and can exclude
witnesses whose testimony is cumulative, repetitive, or
confusing." Commonwealth v. Boyarsky, 452 Mass. 700, 711
(2008), quoting Commonwealth v. Carroll, 439 Mass. 547, 552-553
(2003). "In addition, questions of relevancy 'are entrusted to
the trial judge's discretion and will not be disturbed except
for palpable error.'" Commonwealth v. Wilson, 427 Mass. 336,
349 (1998), quoting Commonwealth v. Azar, 32 Mass. App. Ct. 290,
300 (1992).
Although Dr. Stuart was to be the only expert testifying
about the effects of Celexa and alcohol in combination, there
was no evidence about the quantity of alcohol or drugs ingested
at or near the time of the stabbing.11 While the expert intended
11
A defense expert witness testified that the defendant
told him he consumed an excessive amount of alcohol and took
pills on the evening before the stabbing, but these statements
were not admitted for their truth. The jury also heard evidence
that a bottle of rum two-thirds full and several prescription
bottles of pills were located in the apartment after the
stabbing.
24
to testify about the drug and alcohol combination to demonstrate
that the defendant actually attempted suicide and not to show
that the combination directly affected his state of mind the day
of the stabbing, another expert had already testified that the
defendant's actions were a suicide attempt. The judge did not
abuse his discretion in excluding Dr. Stuart's testimony.
b. Diminished capacity instruction. The defendant argues
that the judge committed reversible error by failing to instruct
the jury that they could consider evidence of diminished
capacity as it related to the defendant's ability to act with
extreme atrocity or cruelty, as required by Commonwealth v.
Rutkowski, 459 Mass. 794, 798 (2011). Instead of giving the
form of instruction approved in Commonwealth v. Gould, 380 Mass.
672, 686 n.16 (1980), as proposed by defense counsel, the judge
gave the model jury instruction. See Model Jury Instructions on
Homicide 61-62 (1999). The defendant's argument is unavailing
because the judge instructed the jury in accordance with
Rutkowski, supra.12 A judge is not required to give the precise
12
The relevant portion of the jury instructions are as
follows:
"More particularly, you may consider any credible evidence
of the defendant’s mental impairment, and/or the use of
drugs, in determining whether the defendant deliberately
premeditated the killing of the deceased, that is whether
the defendant thought before he acted, and whether the
25
instruction proposed by the defendant or as set forth in Gould.
See Commonwealth v. Szlachta, 463 Mass. 37, 48-49 (2012), citing
Commonwealth v. Sanders, 451 Mass. 290, 300 (2008), and
Commonwealth v. Oliveira, 445 Mass. 837, 848 (2006). There was
no error.
c. Review under G. L. c. 278, § 33E. We have reviewed the
entire record and see no reason to exercise our power under
G. L. c. 278, § 33E, to reduce the degree of guilt as requested
by the defendant or to grant other relief.
Judgment affirmed.
defendant reached the decision to kill after reflection, at
least for a short period of time, and whether the defendant
acted in a cruel or atrocious manner, in causing the death
of the deceased" (emphases added).