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SJC-11955
COMMONWEALTH vs. WILLIAM GODDARD.
Worcester. October 11, 2016. - February 9, 2017.
Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.
Homicide. Evidence, Expert opinion. Witness, Expert.
Practice, Criminal, Capital case, Argument by prosecutor.
Indictments found and returned in the Superior Court
Department on June 5, 2008.
The cases were tried before Richard T. Tucker, J.
Robert S. Sinsheimer for the defendant.
Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
LOWY, J. The jury convicted the defendant, William
Goddard, of murder in the first degree on the theory of
deliberate premeditation.1 On appeal, the defendant argues that
1
The defendant also was convicted of aggravated kidnapping,
several counts of armed assault with intent to murder, several
counts of assault by means of a dangerous weapon, two counts of
assault and battery by means of a dangerous weapon, and various
2
(1) the trial judge erred by permitting the Commonwealth's
expert witness to testify that the defendant had premeditated
the killing, (2) the same expert was impermissibly permitted to
state the basis of her opinion on direct examination, and (3)
the prosecutor made statements not supported by evidence during
closing arguments. We affirm the convictions and decline to
grant relief under G. L. c. 278, § 33E.
1. Background. We summarize the facts the jury could have
found and reserve other details for discussion of specific
issues. On the morning of January 28, 2008, the defendant shot
and killed his former girl friend (victim). The victim and the
defendant met in October, 2005, developed a romantic
relationship, and began living together. By August, 2007, their
relationship began to deteriorate, partly because the defendant
suspected the victim was having an affair with her boss. In
October, 2007, the relationship between the victim and the
defendant ended when she kicked him out of the house. The
defendant did not take the break up well.
On the morning of the murder, the defendant arrived in his
automobile at the automotive shop where the victim worked. The
defendant forced an employee at gunpoint to bring him to the
office that the victim shared with her boss.
firearms charges. The jury found the defendant not guilty of
several counts of armed assault with intent to murder.
3
Upon entering the office, the defendant said to the victim,
"[S]hut up. Don't move. Shut up. Don't move." The victim
responded, "Bill, what are you doing?" The defendant then shot
the victim a single time in the neck, killing her in a matter of
minutes. The defendant also shot the boss in the left arm; he
lay on the ground to "play[] dead." The defendant then
attempted to fire the gun a third time, in an unspecified
direction, but his weapon misfired.
Upon hearing the misfire, the employee who had taken the
defendant to the office ran out of the room. The defendant
fired several more times in his direction and in the direction
of three other employees, who were hiding behind a forklift
outside the office. The fleeing employee was able to get
outside, but he slipped on a patch of ice and fell. While he
was on the ground, the defendant caught up to him and again
tried to shoot him, but again, the defendant was unable to fire
the gun. The defendant told the man, "You better run."
The defendant then fled the scene in his vehicle. Minutes
later, a Webster police officer stopped the defendant for
speeding in a construction zone less than one mile from the
shop. The defendant held the steering wheel and stared straight
ahead while the officer reprimanded him, only saying, "Sorry,
Officer." Unaware of the shooting, the officer allowed the
defendant to leave with a warning.
4
While in his vehicle, the defendant used his cellular
telephone to call an agent with the Federal Bureau of Alcohol,
Tobacco, and Firearms. The defendant had known the agent for
over a year through her work. The defendant told her that he
was currently driving around Webster and that, "I was at my ex-
girlfriend['s] workplace. I confronted her. I think I shot her
in the face, and I possibly have shot others, other employees."
When the agent suggested he turn himself in, he said, "No, I'd
rather kill myself," and hung up the telephone.
The defendant then drove to his sister's house in Spencer.
Once there, he told his sister that his vehicle needed repair
and convinced her to give him a ride to Worcester. The
defendant's sister testified that on the way to Worcester her
brother seemed normal, but later told her, "If we get pulled
over, I hope you don't get shot." When she asked what he was
talking about, he repeatedly said, "The less you know, the
better."
The sister dropped him off in a restaurant parking lot in
Worcester, where he had arranged for a female acquaintance to
meet him. The defendant had told the acquaintance a similar
story about his vehicle needing repair. She brought the
defendant back to her house, where they both stayed for about
ninety minutes. During that time, the acquaintance observed the
defendant acting strangely. The acquaintance received a
5
telephone call from a friend, who informed her that the police
were looking for her vehicle. The defendant, overhearing the
conversation, ran out of the house.
The defendant sprinted to a nearby field, where he stood
with his gun pointed at his head. A large police presence
quickly arrived on scene. A State police negotiator talked with
the defendant to try to prevent him from killing himself. The
defendant was agitated and demanded that the police kill him.
The defendant told the negotiator, "My side of the story is on a
[compact disc] in my truck." The defendant was eventually
convinced to accept a cup of coffee, and while he was bending
over to pick it up, the police shot him with nonlethal
ammunition and took him into custody.
The police obtained warrants and searched the defendant's
apartment and vehicle. As the defendant had indicated, the
search of his vehicle revealed a compact disc (CD) in a plastic
sleeve. The CD contained an audio recording wherein the
defendant made several statements about his intention to kill
the victim and her boss. The search of the defendant's
apartment uncovered his computer. A forensic examination of
that computer revealed Internet searches that had occurred
between December, 2007, and January, 2008, and that included
phrases such as "How to kill someone," "Murder an ex-
girlfriend," and "How to use a handgun to kill."
6
At trial, the defendant did not dispute that he killed the
victim. He presented a lack of criminal responsibility defense.
To support his defense, the defendant called Dr. Eric Brown, an
expert clinical and forensic psychologist, as a witness. Dr.
Brown met with the defendant on several occasions after the
killing. He testified that the defendant suffered from bipolar
disorder, posttraumatic stress disorder (PTSD), and possibly a
seizure disorder. As a result of those mental disorders, Dr.
Brown testified that he believed that the defendant "was unable
to control his behavior to conform with the law." In rebuttal,
the Commonwealth called Dr. Alison Fife, a psychiatric expert,
as a witness. She testified that the defendant did not suffer
from bipolar disorder, PTSD, seizure disorder, or a mental
disease at the time of the killing. Further, she testified that
the defendant had the substantial capacity to conform his
conduct to the requirements of the law.2
2. Discussion. a. Testimony on the ultimate issue of
guilt. The defendant argues the Commonwealth's expert witness,
Dr. Fife, was improperly permitted to testify that the defendant
premeditated the killing. On direct examination, the prosecutor
asked Dr. Fife the following question: "Based on your review of
the material, and specifically the investigation of the case and
2
The defendant did not claim that he lacked the substantial
capacity to appreciate the criminality of his conduct. See
Commonwealth v. McHoul, 352 Mass. 544, 555 (1967).
7
the CD you mentioned, do you have an opinion as to whether or
not on January 28th, [the defendant] engaged in goal-directed
behaviors?" Over objection, Dr. Fife responded, "My opinion is
that [the defendant's] behaviors on that day were planned."
There is no prohibition on an expert testifying to an
opinion that touches the ultimate issue in a case. Commonwealth
v. Canty, 466 Mass. 535, 543 (2013). See Mass. G. Evid. § 704
(2016). However, an expert opinion stating whether a defendant
is guilty or innocent is not permitted. Commonwealth v.
Hamilton, 459 Mass. 422, 439 (2011). The jury must be allowed
to reach their own conclusion from the evidence; an opinion
touching on guilt or innocence usurps the jury's function as the
sole and exclusive finders of the facts. Where testimony
approaches an ultimate issue of guilt, "the probative value of
the opinion must be weighed against the danger of unfair
prejudice." Canty, 466 Mass. at 544. See Mass. G. Evid. § 403
(2016).
Taken in context, Dr. Fife's opinion that the defendant's
behavior was planned and goal-directed was relevant to the issue
of criminal responsibility, not premeditation. Although the
form of the question and the answer lacked precision, it was an
appropriate subject for expert testimony. See Commonwealth v.
Boateng, 438 Mass. 498, 508 (2003) (permissible for expert to
8
discuss defendant's "goal-directed actions" in opinion on
defendant's criminal responsibility).
Even if Dr. Fife's statement that the defendant's behavior
on January 28 was "planned" was error due to the form of the
question or because it was inadmissible on the issue of
premeditation,3 it caused no prejudice to the defendant. The
evidence of the premeditation of the killing was overwhelming:
the defendant searched the Internet using such highly
incriminating phrases as "How do I get away with murder";
arrived at the victim's workplace with a gun and additional
ammunition; and forced an employee at gunpoint to take him to
the victim's office. Most damningly, the defendant said on the
CD, i.e., "his side of the story," that "if you're listening to
this recording, I accomplished what I set out to do," and "I
gave up living. And, you know, and I decide to say, 'You know
what? If I'm not living, she's not living either.' I decide to
kill her, you know, and I decide to kill her boy friend."
The defense's own expert also acknowledged that the
defendant's actions on January 28 were "goal-directed." In
response to the question, "Now, it's fair to say, isn't it, that
all of the [defendant's] behaviors . . . on [January 28] . . .
were purposeful, goal-directed behaviors, weren't they?" Dr.
3
The defendant did not request an instruction limiting the
purpose for which the jury could consider Dr. Fife's testimony
to the issue of criminal responsibility.
9
Brown responded, "I would say so, yes." Finally, the trial
judge properly instructed the jury that expert opinions were to
be evaluated by the jury, who were free to accept or reject the
opinion. Commonwealth v. Cyr, 425 Mass. 89, 97 (1997), S.C.,
433 Mass. 617 (2001). See Commonwealth v. Hinds, 450 Mass. 1,
14-15 (2007), S.C., 457 Mass. 83 (2010).
b. Bases for Dr. Fife's opinion. The defendant also
contends the trial judge erroneously permitted Dr. Fife to state
the bases of her opinion on direct examination. Dr. Fife
explained that her opinion was supported by "things that had
been talked about [at trial] and that I gleaned from the records
and my evaluation about shooting at people in the building,
fleeing the scene, making the [tele]phone calls, being stopped
by the police officer, going to the friend's house, [and]
fleeing when he knew someone was after him." She also said her
opinion was based on "my understanding of the evidence, meeting
with [the defendant] and knowing everything I do about this
case."
Experts "may base their opinions on (1) facts personally
observed; (2) evidence already in the records or which the
parties represent will be admitted during the course of the
proceedings, assumed to be true in questions put to the expert
witnesses; and (3) 'facts or data not in evidence if the facts
or data are independently admissible and are a permissible basis
10
for an expert to consider in formulating an opinion.'"
Commonwealth v. Markvart, 437 Mass. 331, 337 (2002), quoting
Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531
(1986). See Mass. G. Evid. § 703 (2016). In regard to the
third category, experts are prohibited "during [their] direct
examination[s] from informing the jury about the facts or data
[they] considered that were not in evidence but that would be
admissible with the right witness or proper foundation."
Commonwealth v. Barbosa, 457 Mass. 773, 785 (2010), cert.
denied, 563 U.S. 990 (2011). See Mass. G. Evid. § 705 (2016).
Where an expert is basing an opinion on information
independently admissible but not admitted in evidence, "[t]he
thrust of [our] rule is to leave inquiry regarding the basis of
expert testimony to cross-examination . . . ." Department of
Youth Servs., supra at 532, quoting Advisory Committee's Note on
Proposed Mass. R. Evid. § 705.
This last limitation on inquiry regarding the basis of an
expert's opinion to cross-examination prevents "the danger that
the [proponent of the expert opinion] would use an expert's
opinion to inform the jury of facts not in evidence." Barbosa,
457 Mass. at 785. In short, allowing testimony regarding the
basis of the opinion on direct examination, in this context,
would import inadmissible hearsay into the trial. However,
where facts or data are already admitted in evidence, we have
11
held that it is "permissible for the expert witnesses to
reference that evidence in their own expert testimony." McHoul,
petitioner, 445 Mass. 143, 146 (2005), cert. denied, 547 U.S.
1114 (2006).
With one exception, the facts Dr. Fife referenced in her
testimony already had been admitted in evidence.4 Several other
witnesses had testified to the defendant's conduct on
January 28, and defense counsel had already elicited much of the
same information during the examination of Dr. Brown.
Accordingly, Dr. Fife's direct examination was not used to put
facts not properly in evidence before the jury, beyond the one
minor exception. See Markvart, 437 Mass. at 338. See also note
4, supra.
c. Closing argument. The defendant also argues that the
prosecutor was improperly permitted to argue facts not in
evidence during closing argument. During closing argument, the
prosecutor referenced the CD made by the defendant: "[A]lthough
4
The one exception was Dr. Fife's testimony that the
defendant had previously done "things like turning on the Bunsen
burners in middle school." This incident was not in evidence,
and should not have been stated on direct examination as a basis
for Dr. Fife's expert opinion. The defendant objected to this
statement at trial, but he did not argue it on appeal.
Nevertheless, the reference was fleeting, and the incident
relatively innocuous and remote in time. See Commonwealth v.
Appleby, 389 Mass. 359, 375 (1983), cert. denied, 464 U.S. 941
(1983). We are confident that there was no reasonable
possibility that the admission of this portion of Dr. Fife's
testimony contributed to the jury's verdict. See Commonwealth
v. Alphas, 430 Mass. 8, 23 (1999) (Greaney, J., concurring).
12
we don't know exactly when [the CD] was [made], . . . you would
be warranted in concluding that it . . . was made very close in
time to the killing itself." The prosecutor further remarked,
"[T]he CD may well have been the last step, because we know from
[the defendant's] words it was made in January." After the
conclusion of the closing argument, the defendant objected at
sidebar to the prosecutor's statements that the CD had been made
during January, 2008. The trial judge declined to give a
curative instruction, but did instruct the jury generally that
statements made by the prosecutor were not evidence.
A prosecutor may not misstate evidence or refer to facts
not in evidence in a closing argument. Commonwealth v. Walters,
472 Mass. 680, 703 (2015). "A prosecutor may, however, in
closing argument, analyze the evidence and suggest what
reasonable inferences the jury should draw from that evidence."
Commonwealth v. Grimshaw, 412 Mass. 505, 509 (1992). The
inference "need not be necessary and inescapable, only
reasonable and possible." Commonwealth v. Jones, 432 Mass. 623,
628 (2000). Statements made by a prosecutor in closing must be
viewed in light of the entire argument, the judge's instruction
to the jury, and the evidence at trial. Commonwealth v. Coren,
437 Mass. 723, 730-731 (2002).
There was no conclusive proof as to the date the CD was
made. The defendant's expert, Dr. Brown, testified that the
13
defendant told him he made the CD on December 15, 2007. The
Commonwealth argued that the CD had instead been made during
January, 2008. The defendant's statement on the CD, which was
played for the jury, included the following: "But, you know, I
mean, October of last year came and she was very distant from
me, starting fights with me, leaving. Then all of a sudden I
was thrown out for supposedly treating her son mean. You know,
I thought it was just another fight but she never asked me to
come home again." (Emphasis added.) Dr. Brown testified that
the defendant and the victim had stopped living together in
October, 2007. The Commonwealth argued that the "last year"
statement was referring to the October, 2007, incident, and
therefore the CD had to have been made in 2008. When asked on
cross-examination if the "last year" reference suggested that
the CD had been made in 2008, Dr. Brown replied, "possibly."
The prosecutor's statement that the CD was made in January,
2008, was a reasonable inference. There was no error.
d. Review pursuant to G. L. c. 287, § 33E. We have
reviewed the entire record on both the law and the facts
pursuant to our obligation under G. L. c. 278, § 33E. We
conclude that the defendant is not entitled to relief, as the
interests of justice do not require the entry of a verdict of a
lesser degree of guilt or a new trial.
Judgment affirmed.