Commonwealth v. Angelone

Lynch, J.

(dissenting, with whom Nolan, J., joins). The court concludes that the judge’s charge “presented the possibility that the jury would conclude that they should not consider the effects of drug consumption in passing on the defendant’s insanity defense,” ante at 87, and that “[tjhere was a real danger that the jury would assume that the principles of the McHoul case do not apply to a person whose mental disease or defect was triggered or aggravated by his voluntary consumption of drugs.” I do not agree. There was nothing in the judge’s charge that would have led the jury to believe that the connection between the epileptic seizure and the defendant’s use of alcohol or drugs made any difference.

As the court concedes, the judge correctly charged on lack of criminal responsibility, Commonwealth v. McHoul, 352 Mass. 544 (1967), and the effect of alcohol and drugs on the *89defendant’s mental condition as it related to the required specific intent. Commonwealth v. Henson, 394 Mass. 584 (1985). That was all that was required. The defense did not contend that the defendant’s epilepsy was “triggered” by the consumption of alcohol and drugs, but rather that he was more susceptible to epileptic seizure because of his consumption of alcohol and drugs. Neither did the prosecutor argue that the defendant’s impaired mental condition should be ignored because it may have been exacerbated by the consumption of alcohol and drugs. The requested instruction was not required, therefore, because it negates a proposition that was not put before the jury by either the Commonwealth or the defense. The defendant requested that the jury be instructed that “a person’s consumption of alcohol or drugs or both may activate a latent mental disease or defect, apart from the intoxication itself. Such a latent mental disease or defect, once activated, may properly be the basis for a verdict of not guilty by reason of lack of criminal responsibility . . . .” (Emphasis supplied.) The defendant’s expert did not testify that the defendant’s reduced mental capacity at the time the crime was committed was activated or triggered by the consumption of drugs or alcohol, but only that he was more susceptible to epileptic seizures because of such consumption.

There was no evidence from the defendant’s expert or anywhere else in the record that the defendant’s voluntary consumption of alcohol and drugs activated a latent mental defect at the time of the crime, resulting in the defendant’s lack of criminal responsibility. He was entitled to no more than the instructions he received.