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SJC-11950
COMMONWEALTH vs. JOSEPH WRIGHT.
Essex. November 10, 2017. - March 15, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement. Evidence, Admissions and
confessions, Voluntariness of statement, Expert opinion,
Exculpatory, Intoxication. Mental Impairment.
Intoxication. Practice, Criminal, Capital case, Admissions
and confessions, Voluntariness of statement, Discovery,
Assistance of counsel, Preservation of evidence. Witness,
Expert.
Indictments found and returned in the Superior Court
Department on June 28, 2012.
A pretrial motion to suppress evidence was heard by Richard
E. Welch, III, J., and the cases were tried before Howard J.
Whitehead, J.
David H. Mirsky (Joanne T. Petito also present) for the
defendant.
Marcia H. Slingerland, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. The defendant, Joseph Wright, appeals from two
convictions of murder in the first degree. He urges the
2
reversal of his convictions on four grounds. First, he contends
that the pretrial motion judge erroneously denied his motion to
suppress statements he made to Canadian law enforcement
officers. Second, he argues that the trial judge committed a
reversible error in ordering the pretrial disclosure of the
defendant's mental health expert's report regarding the
defendant's mental condition at the time of the crimes, which
the prosecution had in its possession during its subsequent
cross-examination of the defendant. Third, the defendant argues
that the evidence at trial demonstrates his lack of criminal
responsibility for the murders, and relatedly, that his trial
counsel's failure to argue a lack of criminal responsibility
defense before the jury constitutes ineffective assistance of
counsel. Fourth, he argues that State police investigators
failed to collect certain evidence relevant to his intoxication
at the time of the crimes, thereby denying the defendant his
right to a "complete defense." Having considered the
defendant's arguments, and, more broadly, "the whole case on the
law and the facts" pursuant to our duty under G. L. c. 278, §
33E, Commonwealth v. Howard, 469 Mass. 721, 747 (2014), we
affirm the convictions.
Factual and procedural background. We recite the facts the
jury could have found in the light most favorable to the
3
Commonwealth, but we reserve certain details of the facts and
proceedings for discussion of the individual issues.
The defendant does not dispute that he killed his mother,
Donna Breau, and his grandmother, Melba Trahant, at their
residence in Lynn on April 30, 2012. Following the killings,
the defendant drove to the Canadian border at Belleville, New
Brunswick, where he arrived at approximately 6 P.M. on May 1,
2012. After hesitating in responding to questions posed by a
Canadian border services officer about his presence in Canada,
the defendant fled across the border, and was quickly
apprehended by a member of the Royal Canadian Mounted police.
The defendant subsequently confessed to the murders of his
mother and grandmother during an interview with two Canadian
border officers. The defendant told the officers that he had
slit the victims' throats and left their bodies behind a local
elementary school.1 (Unbeknownst to the Canadian officers, the
victims' bodies had been found at 6:45 A.M. that day on the
grounds of the elementary school; both women appeared to have
suffered "pretty severe" neck wounds.)
Custody of the defendant was transferred to United States
authorities, and in June, 2012, a grand jury returned two
1 We save our discussion of the details of the defendant's
arrest and interrogation by Canadian law enforcement officers,
as well as the defendant's pretrial motion to suppress those
statements, for our analysis of that issue.
4
indictments charging the defendant with murder in the first
degree of his mother and grandmother. Before trial the
defendant moved to suppress his statements to the Canadian
authorities on the grounds that they were involuntary and that
he had not been given his Miranda warnings, but his motion was
denied. The defendant was then tried before a jury in the
Superior Court between June 10 and 23, 2014. The prosecution
proceeded under the theories of deliberate premeditation and
extreme atrocity or cruelty. The defense's theory was that,
although the defendant admitted to the killings, they did not
constitute murder in the first degree because the defendant had
a "diminished capacity" due to drugs and alcohol, and therefore
he could not have deliberately premeditated or acted with
extreme atrocity or cruelty.
The defendant took the stand as the sole defense witness.2
Although the defense had, before trial, provided notice of the
testimony of an expert psychologist who would testify as to the
defendant's mental condition at the time of the killings, the
defense ultimately chose not to call the expert, who had
prepared a report, appeared on the witness list, and was
available to testify.
2 Before testifying, the defendant affirmed in a colloquy
with the judge that his decision to take the stand was his own
and that he was not pressured into doing so.
5
From an early age the defendant heavily abused drugs and
alcohol. At ten years old he began smoking marijuana, and at
thirteen he started drinking hard alcohol. At fifteen, and for
approximately the next two years, the defendant was in a
residential program for marijuana and alcohol abuse. His
habitual drug abuse continued into adulthood, as the defendant
ingested (in his words) "anything [he] was able to [stick] in
[his] face," including mushrooms, "Ecstasy," cocaine, "crack"
cocaine, and heroin. He also abused a variety of over-the-
counter and prescription drugs.
At age twenty-two the defendant became unemployed and moved
in with his mother in her second-floor apartment in Lynn. His
grandmother, who was in her eighties and had a close
relationship with the defendant, lived in the apartment on the
first floor. The defendant had only intermittent contact with
his mother throughout his childhood because she was in Florida
and in and out of jail with her own drug problems. She
eventually returned to Lynn when the defendant was sixteen or
seventeen, but he avoided contact with her until he was eighteen
or nineteen because "she wasn't there when [he] was a kid."
Upon moving in with her, the defendant testified, "things just
started getting out of hand" in terms of the pair's substance
abuse, and it was "pretty much a big party." The defendant's
mother gave him her prescribed Klonopin, Ativan, and Wellbutrin
6
medications. The defendant was also regularly smoking
marijuana, snorting and injecting heroin, and smoking crack
cocaine.
The defendant testified to the details of the killings. He
had been abusing his mother's Klonopin virtually "nonstop" since
his birthday on April 9. Also, after having a cyst removed from
his forehead four or five days before April 30, the defendant
began hearing a voice inside his head. On the evening of April
30, the defendant recalled going to the liquor store and
purchasing two forty-ounce containers of beer, which he brought
home and drank with his mother at about 6 or 7 P.M. Before
leaving the apartment to purchase marijuana, the defendant
ingested a "handful" of Klonopin. He brought home the marijuana
and smoked it with his mother. His grandmother was downstairs
in her apartment, and at some point his mother went to bed.
While the defendant sat on a recliner in the living room of
his mother's apartment, he heard a voice inside his head, and
the thought of killing his mother entered his mind. He began
walking to the entranceway of his mother's bedroom, and the
voice he heard was telling him to kill her. He recalled being
at the doorway, seeing his mother asleep on the bed, and walking
away. The defendant then obtained a knife from the kitchen,
went into his mother's bedroom while she slept, and slashed her
throat. He did not remember if she asked for help, but did
7
recall she told him he was "fucked" and admitted to watching her
"bleed[] out" on the bed.
At some point during the night, the defendant took the same
knife he used to kill his mother and went downstairs to his
grandmother's apartment, where he found her in the living room.
The defendant was not hearing any voice inside his head telling
him to kill his grandmother, but he thought she saw blood on him
and that she was going to call the police. The defendant walked
up to her from behind, put a pillow over her face, and slashed
her throat. She asked the defendant why he had done that, and
died in front of him.
The defendant awoke at some point in the early morning on
May 1, 2012. Not immediately recalling what had occurred, he
was shocked to find blood on the kitchen floor; he walked into
his mother's bedroom and found her dead with a "lot of blood,"
and went downstairs and found his grandmother "dead on her
couch." The defendant "freaked out" and took more drugs and
alcohol. He left the bodies at a nearby elementary school and
fled to Canada. Following deliberations, the jury found the
defendant guilty of the murders of both victims on the theory of
extreme atrocity or cruelty, and the defendant was sentenced to
consecutive life terms. Forgoing a motion for a new trial, the
defendant filed a timely notice of appeal in June, 2014, and the
case was entered in this court the following year.
8
Discussion. 1. Defendant's statements to Canadian
authorities. The defendant first challenges his convictions on
the ground that his statements to Canadian border officers were
involuntary and therefore inadmissible. The voluntariness of
the defendant's statements was not a live issue at trial, so the
issue was not submitted to the jury. See, e.g., Commonwealth v.
Sheriff, 425 Mass. 186, 193 (1997).3 Yet the defendant did move
to suppress those statements before trial, and also objected to
their introduction at trial through the testimony of certain
Canadian law enforcement officers. We therefore treat the
defendant's argument as a claim of error in the denial of his
pretrial motion to suppress.
We briefly recount the relevant facts concerning the
defendant's statements to the Canadian authorities, as found by
the motion judge following an evidentiary hearing.4 At
3 The defendant testified on direct examination that the
Canadian authorities allowed him to rest before the interview,
and did not yell, threaten, or otherwise coerce him during the
interview. Following the close of evidence, defense counsel
specifically asked "not to give the voluntariness" instruction
(also known as a "humane practice" instruction), based on his
concern that it might "water down" the requested DiGiambattista
jury instruction, which applies where there is no recording of a
defendant's interrogation, as here. Commonwealth v.
DiGiambattista, 442 Mass. 423 (2004). The trial judge provided
the jury with the DiGiambattista instruction.
4 "In reviewing a ruling on a motion to suppress, we accept
the judge's subsidiary findings of fact absent clear error but
conduct an independent review of his ultimate findings and
conclusions of law" (citation and quotations omitted).
9
approximately 8 P.M. on May 1, 2012, the defendant was
apprehended after illegally crossing the border into Canada --
specifically, the port of entry at Woodstock, New Brunswick,
which borders Houlton, Maine. He was arrested by a member of
the Royal Canadian Mounted police (RCMP), who read the defendant
a "caution" that stated: "[Y]ou need not say anything, you have
nothing to hope from any promise or favor and nothing to fear
from any threat whether or not you say anything. Anything you
say may be given in evidence. Do you understand?" The
defendant indicated he understood, and said he wished to speak
to an attorney. This information was relayed to Canadian border
officers at the Woodstock crossing, where the RCMP officer
brought the defendant. Upon his arrival, the border officers
asked the defendant, who was in custody, to disrobe, because
there was blood on the defendant's clothing that the officers
wished to preserve as potential evidence. The defendant did not
appear to be under the influence of any drugs or alcohol, but
informed the officers that he had smoked "a little" marijuana
that day.
The defendant was then taken by two border officers to an
interview room. The defendant was not handcuffed and appeared
"fully oriented." One of the officers read the defendant a
Commonwealth v. Weaver, 474 Mass. 787, 793 (2016), cert. denied,
137 S. Ct. 809 (2017).
10
"secondary caution," similar to the one read to him by the RCMP
officer, and informed him of his right under the Vienna
Convention to speak with a member of the United States
government. The officer also informed the defendant of his
right to speak with "duty counsel," an attorney paid for by
Canada to represent someone who does not have his or her own
attorney, and the defendant indicated he would like to speak
with duty counsel. The officer explained the charge the
defendant was facing so that the defendant could inform duty
counsel why he was being held (i.e., failing to stop and speak
to immigration officers at the border).
At that point the defendant began to laugh and said,
"That's nothing, jail here or jail there, it doesn't make any
difference." He then asked the officers, "[D]o you want to know
why I ran[?]" One of the officers interrupted the defendant and
advised him for a third time that he did not have to say
anything and that anything he did say might be used in evidence.
The officer then asked the defendant why he ran. The defendant
responded that he had killed his mother and grandmother by
slitting their throats, and informed the officers what he had
done with the murder weapon (the knife), where he had placed
their bodies, and why he had committed the crimes. After these
responses, the defendant "slumped down in his chair, stopped
speaking, and appeared relieved." Throughout the confession the
11
defendant "was relaxed, calm, [and] never agitated," and
understood what he was doing and what he was being asked. The
defendant's statements were not recorded.
Before trial, the defendant argued that his statements
should have been suppressed because they were not voluntary and
the police did not give the defendant Miranda warnings before
questioning him. The motion judge held first that because the
defendant's statements were given to foreign police officers,
Miranda v. Arizona, 384 U.S. 436 (1966), did not apply. The
judge further concluded that "all the evidence points to the
fact that [the defendant's] statements were made voluntarily and
knowingly and [were] the product of his own rational intellect."
We discern no error in these conclusions. First, we have
previously held that Miranda does not govern interrogations
"carried out by foreign officials in a foreign country," and
that statements made to foreign police are admissible if they
were voluntary. Commonwealth v. Wallace, 356 Mass. 92, 96-97
(1969).5 We explained that "applying the Miranda rule to foreign
police officers will not affect their conduct, and therefore we
decline to so extend the scope of that decision." Id. Numerous
courts that have more recently addressed this question have
reached the same conclusion. See, e.g., United States v.
5 Wallace, like this case, involved a defendant's statements
made to Canadian law enforcement officers. Commonwealth v.
Wallace, 356 Mass. 92, 96-97 (1969).
12
Yousef, 327 F.3d 56, 145 (2d Cir.), cert. denied, 540 U.S. 933
(2003) ("the law is settled that statements taken by foreign
police in the absence of Miranda warnings are admissible if
voluntary"); Fisher v. United States, 779 A.2d 348, 353-354
(D.C. 2001), cert. denied, 534 U.S. 1095 (2002). "[B]ecause the
United States cannot dictate the protections provided to
criminal suspects by foreign nations and one of the principal
purposes of the exclusionary rule -- deterrence of unlawful
police activity -- is absent when foreign [officers] direct an
interrogation, a different rule applies to statements elicited
by foreign officials." United States v. Abu Ali, 528 F.3d 210,
227 (4th Cir. 2008), cert. denied, 555 U.S. 1170 (2009). The
defendant's statements to the Canadian authorities are
admissible so long as they were voluntary.6
The motion judge did not err in concluding that the
defendant's statements were indeed voluntary. "A voluntary
statement is one that is the product of a rational intellect and
6 While "courts recognize two exceptions to the general rule
regarding the application of Miranda . . . in a foreign
jurisdiction" -- (1) "where the investigatory conduct is so
inconsistent with our notions of due process that it 'shocks the
conscience' of a [United States] court," and (2) "when a foreign
officer acts as an agent of [United States] law enforcement"
(citation omitted), Fisher v. United States, 779 A.2d 348, 354
(D.C. 2001), cert. denied, 534 U.S. 1095 (2002) -- neither
exception applies here. The first is plainly not at issue, and
as for the second, the pretrial motion judge specifically found
that the Canadian authorities were not acting as agents for
United States law enforcement officers.
13
a free will, and not induced by physical or psychological
coercion" (citation and quotations omitted). Commonwealth v.
Monroe, 472 Mass. 461, 468 (2015). As mentioned, the motion
judge found that there were no signs the defendant was
intoxicated or otherwise did not understand what he was doing or
being asked; the judge also found no evidence of "trickery,"
"physical distress," or "that [the defendant] was made any
promises or any threats." The defendant does not dispute those
factual findings (nor do we discern error in them), but he
highlights the fact that the interrogation continued after he
invoked his right to speak with duty counsel. This argument is
unavailing, as the requirement that police halt questioning
after an individual states he or she wishes to speak with an
attorney stems from Miranda, 384 U.S. at 474, see Commonwealth
v. Obershaw, 435 Mass. 794, 800 (2002), which does not apply
here.7
2. Disclosure of expert report to the prosecution.
Defense counsel clarified before trial that the defense theory
would be based on the defendant's "diminished capacity" due to
drug and alcohol abuse. Six weeks before jury selection, the
defense offered its notice of expert witness, stating that it
7 Hence, there was no error in the motion judge's conclusion
that "the fact that [the defendant] had not yet talked to a
lawyer does not in [any way] undermine [the] findings that . . .
the evidence shows beyond a reasonable doubt that he made these
statements voluntarily."
14
would call a psychologist, Robert H. Joss, to testify about the
defendant's mental condition at the time of the crimes.8 By this
time Joss had already prepared a report on the defendant's
behalf, which included descriptions of "statements made by the
defendant relevant to the issue of [his] mental condition" at
the time of the killings, along with Joss's "opinions as to the
defendant's mental condition." Mass. R. Crim. P. 14 (b) (2) (B)
(iii), as appearing in 463 Mass. 1501 (2012).
The Commonwealth responded a week later by filing a motion
for reciprocal discovery regarding the defense expert, seeking,
in pertinent part, "[n]otice as to whether . . . Joss intends to
rely upon any statements of the defendant as the basis of his
opinion or testimony at trial," and stating that if so, "the
Commonwealth is entitled to an independent examination of the
defendant" pursuant to Mass. R. Crim. P. 14 (b) (2) (B). The
motion was "allowed as to whether . . . Joss intends to rely
upon statements of the defendant"; the ruling further stated
8 The notice advised that the defendant would call Robert H.
Joss to testify that "at the time of the offenses [the
defendant] was undergoing an unusual pattern of indiscriminate
substance abuse . . . and if not for this long history of drug
abuse the killing of his mother and grandmother would not have
happened." Joss would further testify that "[the defendant] was
experiencing the effects of a drug induced psychosis and
dissociative experiences related to his mother[']s abandonment
of him at the age of two at the time of the killings." The
notice did not clarify, as it was required to, whether Joss
"intend[ed] to rely in whole or in part on statements of the
defendant as to his . . . mental condition." Mass. R. Crim. P.
14 (b) (2) (A) (iii), as appearing in 463 Mass. 1501 (2012).
15
that "[i]f [the defendant] provides notice that he intends to
offer expert testimony as to his mental state based in part on
his statements[,] the Commonwealth may request a [rule] 14 (b)
(2) (B) examination" of the defendant by a court-appointed
examiner.
The record does not reflect that the defense responded to
the motion judge's order, however, and the prosecution did not
ultimately seek an independent examination of the defendant.
Before jury selection, on the first day of trial proceedings,
the defense repeated to the trial judge its intention to call
Joss as an expert witness. The judge then asked the
prosecution, "[A]re you going to have somebody?" -- presumably
referring to an expert of its own -- to which the prosecution
responded, "No." Joss appeared on the witness list read to
potential jurors. Following jury empanelment and just before
opening statements, the prosecution said that while it did not
seek an independent examination of the defendant, it did seek
access to Joss's report. Over the defendant's objection, the
judge "order[ed] that the report be turned over now, where there
has been a commitment by the defense to the diminished capacity
[of the defendant]."
The defendant argues that this order violated Mass. R.
Crim. P. 14 (b) (2), which governs discovery related to expert
testimony on the issue of the defendant's "mental condition."
16
The prosecution should never have received Joss's report, the
defendant contends, because it never sought an independent,
court-ordered examination of the defendant under rule
14 (b) (2) (B), which, he argues, is a prerequisite to the
rule's requirement that a defendant provide his expert report to
the prosecution. The defendant concludes that the prosecution's
later use of Joss's report during its cross-examination of him
violated his State and Federal rights against self-
incrimination, and warrants reversal of his convictions.9
"As our task is to interpret a rule of criminal procedure,
we begin with the plain language of the rule." Commonwealth v.
Hanright, 465 Mass. 639, 641 (2013). Rule 14 (b) (2) provides
9 As mentioned, the defendant took the stand in his own
defense at trial. On direct examination he did not recount the
details of the killings themselves. He testified that he did
not immediately remember what happened between the time that he
returned to his mother's apartment with marijuana, and when he
woke up to find his mother and grandmother dead. The defendant
stated that "about a week later" he "started really thinking
hard," and remembered that he had been awake for "two days
straight without sleeping," and that he heard a voice in his
head "telling [him] to just kill [his] mother." He also
recalled getting rid of the victims' bodies.
Before cross-examining the defendant, the prosecution
sought permission to impeach the defendant with statements he
made to Joss, which were incorporated into Joss's report. The
judge ruled that while the prosecution could not introduce the
statements themselves to impeach the defendant, it could use its
knowledge of the content of those statements when formulating
its cross-examination. While it is not entirely clear to what
extent the prosecutor's knowledge of the contents of Joss's
report guided his cross-examination of the defendant, the
defendant did more fully recount the details of the killings
during cross-examination.
17
the "[s]pecial [p]rocedures" governing pretrial discovery
regarding defenses based on a criminal defendant's "[m]ental
[h]ealth [i]ssues."10 Subdivision (b) (2) (A) requires a
defendant to notify the prosecution if he "intends at trial to
raise as an issue his or her mental condition at the time of the
alleged crime, or . . . intends to introduce expert testimony on
[his or her] mental condition at any stage of the proceeding."
The next subdivision, (b) (2) (B), states that where it appears
(based on [1] the defendant's notice of expert testimony, [2]
"subsequent inquiry by the judge," or [3] "developments in the
case") that the defendant's expert will rely on "statements of
the defendant as to his or her mental condition . . . , the
court, on its own motion or on motion of the prosecutor, may
order the defendant to submit to an examination" consistent with
10As a preliminary matter, we are satisfied that the
defendant's "diminished capacity" defense, which was to include
expert testimony from a psychologist stating that the defendant
was experiencing "a drug induced psychosis" at the time of the
crime, implicates the defendant's "mental condition" such that
it is subject to the "[s]pecial [pretrial discovery]
[p]rocedures" of Mass. R. Crim. P. 14 (b) (2), as appearing in
463 Mass. 1501 (2012). See Commonwealth v. Newton N., 478 Mass.
747 (2018), citing Mass. R. Crim. P. 14 (b) (2) (A) ("due to the
complex nature of mental impairment, which is often presented at
trial through expert testimony, we require defendants to provide
the same notice regarding their intent to raise an issue of
mental impairment at trial as we do their intent to raise a
defense of criminal responsibility"). "[A]ll procedures and
provisions applicable to such discovery are set out in rule
14 (b) (2)," and are not subject to the "automatic and
discretionary [discovery] provisions" of rule 14 (a).
Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 319 (2010).
18
the detailed provisions of Mass. R. Crim. P. 14 (b) (2) (B) and
(C).11
The same subdivision, (b) (2) (B) -- specifically, part
(iii) -- also establishes a regime for the disclosure of mental
health expert reports. This disclosure occurs, in pertinent
part, "after the defendant expresses the clear intent to raise
as an issue his or her mental condition, [and] the judge is
satisfied that (1) the defendant intends to testify, or (2) the
defendant intends to offer expert testimony based in whole or in
part on statements made by the defendant as to his or her mental
condition at the relevant time." Mass. R. Crim. P. 14 (b) (2)
(B) (iii) (c). While the paragraph in which this language
appears refers to the disclosure of the court-appointed
"examiner's report," the next paragraph clarifies that "[a]t the
time [the examiner's report] is disclosed to the parties, the
defendant shall provide the Commonwealth with a report of the
defense psychiatric or psychological expert(s) as to the mental
condition of the defendant at the relevant time." Id.12
11"As a practical matter, it is the prosecutor who
recommends the expert psychiatrist for appointment as the
examiner. We have recognized the court-appointed examiner as an
agent of the prosecution." Sliech-Brodeur, 457 Mass. at 318
n.23.
12This provision ordering the disclosure of a defense
expert's report was inserted as part of the 2012 amendments to
the rule, following this court's opinion in Sliech-Brodeur, 457
Mass. at 324-326. Sliech-Brodeur involved a pretrial discovery
19
The defendant argues that because rule 14 (b) (2) (B) (iii)
contemplates an exchange of reports from both sides' experts --
one by the defense ("a report of the defense psychiatric or
psychological expert") and another by the court-ordered examiner
("examiner's report") -- in a case where the prosecution has not
sought a court-ordered examination, as here, a defendant has no
independent duty to disclose his or her expert's report. We
disagree. The fact that the rule discusses a defendant's
disclosure obligation in tandem with that of the court-appointed
examiner simply reflects the typical course in cases where a
defendant pursues a mental health defense: after the defendant
expresses his or her intent to pursue that defense, the
prosecution will seek an independent examination regarding the
defendant's mental condition at the time of the crime. Such was
the sequence of events in Sliech-Brodeur, 457 Mass. at 310,
order requiring the defendant to furnish his mental health
expert's notes and materials to the Commonwealth, who had
secured an independent expert; the Commonwealth provided the
defense materials to its expert, who relied on them when forming
his own opinion about the defendant's criminal responsibility.
Id. at 322. The court deemed this reversible error on the
grounds that "nothing in [rule 14 (b) (2)] obligates a
defendant, before trial, to provide the Commonwealth's expert
. . . with copies of her own expert witness's notes and other
materials." Id. at 321. Responding to "'confusion' surrounding
the sequence of production of mental health experts' materials,"
the court also provided for the amendment of rule 14 (b) (2) "to
require the defendant's expert to produce to the prosecution a
report that includes the defense expert's opinion [as to the
defendant's mental condition] and the bases and reasons for this
opinion." Id. at 325-326.
20
which resulted in this provision. While the rule affords the
prosecution the opportunity to obtain an independent examiner,
we do not interpret it to impose on the prosecutor an obligation
to do so or otherwise be denied access to the defense expert's
report.13
Mental health defenses like the instant one represent
"complex issues for which the prosecutor should have time to
prepare." Reporter's Notes (2012) to Rule 14 (b) (2),
Massachusetts Rules of Court, Rules of Criminal Procedure, at
197 (Thomson Reuters 2016). See Sliech-Brodeur, 457 Mass. at
325 (explaining "our view . . . that the Commonwealth should
have advance notice of complex mental health issues that the
defendant intends to raise as part of his or her defense"). An
effective "[r]ebuttal of [such defenses] requires a degree of
expertise on the part of a cross-examiner that can only be
gained through pretrial research." Reporter's Notes (Revised,
2004) to Rule 14 (b) (2), supra at 195. This includes access to
the defense expert's report, without which the prosecution
cannot effectively impeach the expert's or the defendant's own
testimony during cross-examination, thereby undermining "rule 14
13That the court-appointed examiner is an optional, not
mandatory, component of a prosecutor's trial strategy is
bolstered by the plain language of the rule, which states that
the court "may order the defendant to submit to an examination,"
not that it "shall" always do so (emphasis added). Mass. R.
Crim. P. 14 (b) (2) (B).
21
(b) (2) (B)'s truth-seeking function." Hanright, 465 Mass. at
644. See Commonwealth v. Durham, 446 Mass. 212, 230, cert.
denied, 549 U.S. 855 (2006) (Marshall, C.J., dissenting)
(recognizing "the importance that cross-examination plays in the
'fact finder's assessment of the truth'" [citation omitted]).
Accordingly, consistent "with the trend of increased discovery
in criminal cases," Sliech-Brodeur, supra at 325, we interpret
rule 14 (b) (2) (B) (iii) to impose on a defendant an
independent duty to disclose his or her expert's report to the
prosecution "after the defendant expresses the clear intent to
raise as an issue his or her mental condition," and where "the
judge is satisfied that (1) the defendant intends to testify, or
(2) the defendant intends to offer expert testimony based in
whole or in part on statements made by the defendant as to his
or her mental condition at the relevant time." Mass. R. Crim.
P. 14 (b) (2) (B) (iii).14
We disagree with the defendant that the required
14
disclosure of his mental health expert's report to the
prosecution implicates his right against self-incrimination. As
Chief Justice Gants (then Associate Justice) observed in his
dissent in Sliech-Brodeur, 457 Mass. at 340, that right "does
not apply to a defendant's statements to the psychiatrist [or
psychologist] retained by his attorney because these statements
were not compelled by the Commonwealth or the court; the
defendant voluntarily chose to speak to his defense expert."
"Nevertheless," the dissent explained, "disclosure to the
prosecution of the defense expert's reports and statements must
still wait until the defendant decides whether the expert will
testify at trial based in whole or in part on the defendant's
statements to the expert, because, until that decision is made,
22
Here, the judge ordered the defendant to turn over his
expert's report to the prosecution based on his conclusion that
"there has been a commitment by the defense to the diminished
capacity" of the defendant. This was not in error. By this
stage of the proceedings the defendant had expressed the "clear
intent to raise as an issue his . . . mental condition," Mass.
R. Crim. P. 14 (b) (2) (B) (iii), having explained before jury
empanelment that he was "seeking a murder two conviction . . .
based on diminished capacity," and that the defense would
include "psychiatric testimony." And as discussed, over a month
before jury selection the defendant had filed his notice of
expert witness, informing the prosecution (and the judge) that
the defense would call Joss to testify "that at the time of the
offenses [the defendant] was undergoing an unusual pattern of
indiscriminate substance abuse" and "was experiencing the
effects of a drug induced psychosis" that led to the killing of
his mother and grandmother. Joss then appeared on the list of
potential witnesses in the case. On these bases, the judge
reasonably concluded that either (1) "the defendant intend[ed]
to testify," or, more likely, (2) "the defendant intend[ed] to
the defendant's statements to a defense expert retained by his
attorney are protected by the attorney-client privilege.
Reports and statements arising from such communications, while
not within the compass of a defendant's privilege against self-
incrimination, are protected by the work product doctrine"
(emphasis in original). Id. at 341.
23
offer expert testimony based in whole or in part on statements
made by the defendant as to his . . . mental condition at the
relevant time." Id.15
3. Lack of criminal responsibility and ineffective
assistance of counsel. The defendant also seeks reversal of his
convictions on the grounds that he lacked criminal
responsibility for the murders; relatedly, he argues that trial
counsel's failure to present this argument to the jury
constitutes ineffective assistance of counsel. In support of
these positions the defendant relies exclusively on Joss's
report, which he contends "contains clear evidence that [the
defendant] lacked criminal responsibility" for the murders.
We reject both arguments for essentially the same reason:
having reviewed Joss's report, which is impounded, we simply
find no support for the defendant's position that he lacked
criminal responsibility. To the contrary, Joss concluded that
15 Rule 14 (b) (2) (B) (iii) vests a trial judge with
discretion when making this determination, given that it
conditions disclosure of the defense expert's report on the "the
judge [being] satisfied" that the defense will include either
the defendant's testimony or an expert's testimony based on the
defendant's statements (emphasis added). Such discretion is
necessary in cases such as this, where despite being ordered to
do so twice -- first, pursuant to Mass. R. Crim. P. 14 (b) (2)
(A) (iii), in the defendant's notice of a mental health defense,
and again by the court order granting the prosecution's motion
for reciprocal discovery regarding the defense expert -- the
defense apparently failed to clarify before trial whether Joss
would be relying on the defendant's statements regarding his
mental condition.
24
the defendant did not have a mental disease or defect –- an
essential element of a defense based on lack of criminal
responsibility. See Commonwealth v. McHoul, 352 Mass. 544, 546-
547 (1967) ("A person is not responsible for criminal conduct if
at the time of such conduct as a result of mental disease or
defect he lacks substantial capacity either to appreciate the
criminality . . . of his conduct or to conform his conduct to
the requirements of the law" [emphasis added]). Rather, Joss
concluded that the "source" of the defendant's impaired mental
state at the time of the killings "was his ingestion of multiple
drugs in an abusive way in the days and hours leading up to the
[killings]." This weighs strongly against the viability of a
defense of lack of criminal responsibility, because the
"[v]oluntary consumption of alcohol or drugs . . . do[es] not
qualify as [a] 'mental disease[] or defect[]' in the McHoul
formulation; as a result, a defendant whose lack of substantial
capacity is due solely to one of these conditions, and not to
any mental disease or defect, is criminally responsible"
(citation omitted). Commonwealth v. DiPadova, 460 Mass. 424,
431 (2011).16 Contrast Commonwealth v. Mutina, 366 Mass. 810,
16In light of Joss's conclusion that the defendant's drug
consumption was the source of his impairment, it is immaterial
that Joss erroneously relied on the definition of "mental
illness" under 104 Code Mass. Regs. § 27.05(1), which relates to
involuntary commitment.
25
811-817 (1975) (reversing conviction of murder in first degree
where defendant presented "very strong evidence of his lack of
criminal responsibility" consisting of, among other things,
testimony of two psychiatric experts who concluded defendant's
schizophrenia prevented him from conforming his conduct to law,
and where prosecution failed to present "any affirmative
evidence of the defendant's sanity").17
We similarly reject the defendant's contention that trial
counsel was ineffective for failing to present a lack of
criminal responsibility defense. "The defendant did not file a
motion for a new trial and therefore rests his claim of
ineffective assistance of counsel solely on the trial record.
Such ineffective assistance of counsel claims are 'the weakest
form of such a challenge' because they lack 'any explanation by
trial counsel for his actions.'" Commonwealth v. Griffin, 475
Mass. 848, 857-858 (2016), quoting Commonwealth v. Peloquin, 437
17We also reject the defendant's suggestion that it was the
prosecution's burden to demonstrate that the defendant was
criminally responsible. Only where a defendant "asserts a
defense of lack of criminal responsibility and there is evidence
at trial that . . . would permit a reasonable finder of fact to
have a reasonable doubt whether the defendant was criminally
responsible" does the prosecution "bear[] the burden of proving
beyond a reasonable doubt that the defendant was criminally
responsible." Commonwealth v. Lawson, 475 Mass. 806, 811
(2016), quoting Commonwealth v. Keita, 429 Mass. 843, 849–850
(1999). As mentioned, the defense did not assert a lack of
criminal responsibility defense here; to the contrary, just
before opening statements, defense counsel reiterated that it
was "not bringing forward a criminal responsibility defense"
(emphasis added).
26
Mass. 204, 210 n.5 (2002). "Examining this claim under G. L.
c. 278, § 33E, 'we review the trial record alone to determine
whether a defense counsel's strategic or tactical decision
questioned on appeal was manifestly unreasonable when made and,
if so, whether the unreasonable decision resulted in a
substantial likelihood of a miscarriage of justice.'" Griffin,
supra at 858, quoting Commonwealth v. Brown, 462 Mass. 620, 629
(2012).
There were clear reasons for not pursuing a lack of
criminal responsibility defense at trial. Compare Commonwealth
v. LaCava, 438 Mass. 708, 714 (2003) (where counsel's expert
opined defendant did not have mental disease or defect, not
unreasonable for counsel to consider that opinion as "serious
impediment" to insanity defense). In addition to Joss's
conclusions, defense counsel also clarified before jury
selection -- "[j]ust so the record is clear" -- that he had
"talked to [the defendant] about [the defense's trial strategy]
at length" and that "diminished capacity by reason of alcohol
and drugs" was the defense that the defendant had "agreed to."
The strategic focus on the defendant's substance abuse at the
time of the killings was therefore not unreasonable and presents
no likelihood of a miscarriage of justice.
4. Alleged substandard evidence collection. Last, the
defendant contends that he was denied his constitutional right
27
to a "meaningful opportunity to present a complete defense,"
California v. Trombetta, 467 U.S. 479, 485 (1984), based on
State police investigators' failure to collect evidence that may
have been tied to the defendant's drug use -- specifically, a
number of prescription pill bottles in his grandmother's
apartment, and certain small plastic bags in his mother's
apartment that were consistent with drug packaging. According
to the defendant, this evidence "was potentially useful to
support [his] defense that he possessed a diminished capacity to
form the required intent for first degree murder due to his
intoxication by drug use."
We reject the defendant's argument, primarily because the
potentially exculpatory value of this evidence was not apparent
at the time of the State police investigation. See Trombetta,
467 U.S. at 488-489 ("Whatever duty the Constitution imposes on
the States to preserve evidence, that duty must be limited to
evidence that might be expected to play a significant role in
the suspect's defense. To meet this standard of constitutional
materiality, . . . evidence must . . . possess an exculpatory
value that was apparent before the evidence was destroyed
[footnote omitted]"). The significance of the defendant's drug
use did not come to light until nearly two years after the
police's investigation in this case, when the defendant first
raised his intoxication-based defense. There is also no
28
indication that the police intended to conceal such evidence
here, given that photographs from their investigation display
the prescription pill bottles and plastic bags. "While the
prosecution remains obligated to disclose all exculpatory
evidence in its possession, it is under no duty to gather
evidence that may be potentially helpful to the defense."
Commonwealth v. Lapage, 435 Mass. 480, 488 (2001).
Moreover, the jury were not, as the defendant suggests,
entirely precluded from considering this evidence, as those
photographs were submitted to the jury as exhibits. And as was
the defendant's right under Commonwealth v. Bowden, 379 Mass.
472, 485-486 (1980), the defendant raised the issue of the
adequacy of the police's evidence collection at trial, and the
judge did not preclude the jury from considering those points
when deciding whether reasonable doubt existed as to the
defendant's guilt. See Commonwealth v. O'Brien, 432 Mass. 578,
590 (2000) ("Bowden simply holds that a judge may not remove the
issue from the jury's consideration").
5. Review under G. L. c. 278, § 33E. We have carefully
reviewed the entire record pursuant to our duty under G. L. c.
278, § 33E, and we discern no reason to order a new trial or to
reduce the convictions of murder in the first degree to a lesser
degree of guilt.
Judgments affirmed.