Commonwealth v. Griffin

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SJC-11524

COMMONWEALTH vs. KRISTOPHER GRIFFIN.

Bristol. April 8, 2016. - November 4, 2016.

Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.1

Homicide. Home Invasion. Insanity. Mental Health. Evidence,
Sanity. Practice, Criminal, Capital case, Assistance of
counsel, Opening statement, Argument by prosecutor,
Instructions to jury.

Indictments found and returned in the Superior Court
Department on September 28, 2009.

The cases were tried before E. Susan Garsh, J.

Neil L. Fishman for the defendant.
Yul-mi Cho, Assistant District Attorney, for the
Commonwealth.

GANTS, C.J. In the late evening or early morning of July

23 and 24, 2009, the defendant broke into the house where his

six year old daughter lived with the defendant's former girl

friend and slit his daughter's throat, causing her death. A

1
Justices Spina and Duffly participated in the deliberation
on this case prior to their retirements.
 2

Superior Court jury convicted the defendant of murder in the

first degree on the theories of deliberate premeditation and

extreme atrocity or cruelty, in violation of G. L. c. 265, § 1,

and of home invasion, in violation of G. L. c. 265, § 18C.2 At

trial, the defendant did not contest that he had killed the

victim, but pursued a defense that he was not criminally

responsible at the time of the killing.

The defendant presents four claims on appeal. First, he

contends that the evidence at trial was insufficient as a matter

of law to permit a rational jury to find beyond a reasonable

doubt that he was criminally responsible at the time of the

killing. Second, he claims that his trial counsel provided

ineffective assistance of counsel by admitting in his opening

statement that the defendant's conduct was "not psychotic."

Third, he contends that the prosecutors made improper remarks

during their opening statement and closing argument. Fourth, he

argues that the judge's instruction regarding the consequences

of a verdict of not guilty by reason of lack of criminal

responsibility created a substantial likelihood of a miscarriage

of justice. We affirm the defendant's convictions, and having

reviewed the entire record of the case pursuant to our duty

2
On the conviction of murder in the first degree, the
defendant was sentenced to life imprisonment without the
possibility of parole. On the conviction of home invasion, the
defendant was sentenced to a concurrent term of life
imprisonment.
 3

under G. L. c. 278, § 33E, we find no reason to exercise our

authority to order a new trial or to reduce the verdict of

murder in the first degree.

Background. Because the defendant challenges the

sufficiency of the evidence, we recount the evidence in the

light most favorable to the Commonwealth. In July, 2003,

Deborah Mons gave birth to the victim; the defendant was the

victim's biological father. The defendant and Mons had begun to

date in 2002, and in July or August of that year the defendant

moved into Mons's home, where she lived with her three sons from

previous relationships. From 2003 to the spring of 2006, the

defendant continued to live with Mons in her house for "most of

the time," but their relationship was turbulent. In January,

2003, after the defendant made a trip to Florida and visited

with an ex-wife, Mons told the defendant that he could not be in

a relationship with both her and his ex-wife. When Mons gave

the defendant this ultimatum, the defendant appeared depressed

and asked to be taken to the hospital. He was treated at the

hospital for three to five days, and did not live at Mons's

house from February to July of 2003.

In 2006, Mons broke off the relationship because it "just

wasn't working out," and she asked the defendant to move out.

However, between 2006 and 2009, Mons and the defendant

occasionally dated, albeit "[n]othing on a regular basis," and
 4

the defendant would occasionally stay at Mons's house when he

needed a place to stay. Each time the defendant moved back into

the house, he would stay until Mons told him that he needed to

leave.

In January, 2008, the victim, then four, made "a sexually

inappropriate statement" that appeared to implicate one of

Mons's sons, who was thirteen at the time. As a result of that

statement, the son was sent to a hospital for a psychiatric

evaluation and was later placed in a residential treatment

facility.

In the spring of 2009, Mons began a relationship with a man

named Anthony,3 who lived in North Carolina. In June, Mons spent

a week in North Carolina with him. At this time, Mons told the

defendant that she was planning to move to North Carolina and

take the victim with her, but before she could move she needed

to arrange for her son to be placed in a treatment facility in

North Carolina, which she anticipated would take at least

another year.

The defendant began staying at Mons's house again early in

June, 2009. While he was living there, the defendant learned

that Mons was in a sexual relationship with both him and

Anthony. Thereafter, the defendant logged on to a social

networking account used by Mons, read exchanges between her and

3
The record does not identify Anthony's last name.
 5

Anthony, and deleted her social networking profile. Around the

same time, the defendant told Mons that he would "go to the

facility [her son] was at and take [the son] out and then take

himself out" in order to make her move to North Carolina easier.

Because of that statement, Mons asked the defendant to move out

of her home, which he did on July 9.

Mons said the defendant was not "happy" about having to

move out, and did not know where he was going to stay. On July

10, Mons returned a missed telephone call from the defendant and

heard his outgoing voicemail message, in which he said that he

"had lost his battle with mental illness and was no longer

available." A few hours after hearing that message, the

defendant arrived at Mons's house to retrieve some belongings.

Mons called the police and spoke to the defendant when the

police arrived. The defendant stated that he was "just upset"

and "did not really mean what he had said in the voicemail." He

agreed to be voluntarily taken by the police to a hospital for a

psychiatric evaluation. The hospital determined that he was not

suicidal and released him the following day.

After his release, on July 11, the defendant asked a

friend, Robert Fisher, if the defendant could stay in a camper

that Fisher had on his property. Fisher and his wife allowed

the defendant to stay in the camper for two weeks. During the

next twelve days, the defendant lived in the camper and assisted
 6

with the care of Fisher's father, who lived with Fisher and had

Alzheimer's disease. Fisher did not notice anything unusual

about the defendant's behavior during this period.

On July 23, the defendant called Mons's house at 7:30 P.M.

to speak to the victim, as he did many nights. Mons told him

that the victim was already in bed and that, if he wanted to

talk to the victim over the weekend, he should call Mons's

cellular telephone as she was taking the victim on a trip to

Washington, D.C., or North Carolina that weekend. The defendant

was upset and told Mons that she could not "take [the victim]

away from [him] like that." He told Mons that the victim was

not safe whenever he was not around to speak with the victim and

that the last time the defendant left the house the victim was

"molested" by Mons's son. At 8 P.M., Fisher spoke to the

defendant on the telephone, and the defendant told Fisher he was

going to the library to return a video and asked if Fisher

needed anything. Fisher did not notice anything unusual about

the defendant's behavior.

At 11 P.M., the defendant packed various items into a

backpack, including rope, duct tape, a first-aid kit, a

flashlight, scissors, two utility tools, and a knife in a

sheath. It was raining, and the defendant put on a poncho to

walk the twenty minutes to Mons's house. He did not take his

Jeep vehicle because it was loud and might wake someone.
 7

Arriving at the house, the defendant cut the telephone lines on

the exterior of the house. He entered the house by sliding open

the screen on a window above a bulkhead and then climbing in

through the window. Once inside the house, he took off his

boots and went down to the basement of the house where he took

off his wet clothes and turned off the electricity to the house

at the circuit board. He also cut the telephone line inside the

house.

The defendant then went to the victim's bedroom where he

sat with her before eventually carrying her to the basement.

After sitting with the victim for some time, the defendant

placed a hand over the victim's mouth and cut her throat three

times, each time deep enough to reach the victim's spinal

column. The defendant then wiped his hands with a towel and

used disinfecting wipes from the kitchen to clean the light

switch in the basement and further clean his hands. The

defendant then repacked his belongings into his backpack and

left the house through the window by which he had entered.

At 3:45 A.M., Fisher received a call from the defendant's

telephone, and when he answered he only heard someone gasping

for breath and gagging. Thinking the defendant might have hurt

himself, Fisher went to the camper to check on the defendant.

He found the camper empty but discovered a note addressed to him

that purported to be the defendant's last will and testament and
 8

stated the defendant's intent to leave all of his property to

Fisher. Concerned, Fisher's wife called the police.

Thereafter, Fisher's wife found another note in the camper, this

one addressed, "To whom it may concern." In the note, the

defendant wrote, in relevant part: "I am sorry for what sins I

have committed. Sending [the victim] to heaven was the only way

I could think of to protect her. I dont want any of my children

to grow up + suffer with mental illness the way I have. [The

victim] is the only one I can still save. . . Please notify my

family of my passing."

At 4:10 A.M., Officer Joshua Ellender of the Mansfield

police department arrived at Fisher's house, spoke to Fisher

briefly, and then left to look for the defendant. Officer

Ellender found the defendant one-quarter mile from Fisher's

house, walking in the direction of the house. Ellender asked

the defendant if he was all right and questioned why he was

walking in the rain. The defendant answered that he was all

right and that he had gone to a pharmacy to fill a prescription

and was on his way home. Ellender offered to drive the

defendant home, and the defendant accepted. Ellender asked the

defendant a few questions in the police cruiser, and the

defendant responded in a "very timid high-pitched voice." When

they arrived at Fisher's house, Fisher told Ellender about the

second note, and the officer asked the defendant if he had hurt
 9

anyone. The defendant responded that he had and told Ellender

and Fisher that he had killed his daughter. Ellender then

handcuffed the defendant and, after the defendant stated that

the knife was in his backpack, the officer took the backpack

from him. While sitting in the back of the police cruiser, the

defendant said that he deserved to die and began hitting his

head against the partition in the cruiser, but stopped when

Ellender asked him to; the defendant later asked Ellender to

shoot him.

Police responded to Mons's house, where they awoke Mons and

discovered the victim's body in the basement under a blanket.

Willa Griffin, the defendant's mother, testified that, at

some point after the defendant began dating Mons, the defendant

had told her in a telephone call that he had "found a doctor

that could draw up the papers" for him to obtain Social Security

disability benefits and that he was going to apply to get the

benefits. The defendant again telephoned his mother in early or

mid-July 2009, and asked if she thought the victim "would be

better off in heaven." His mother responded that everyone would

be better off in heaven, but that only God could make that

choice. Later, on the evening of July 22, 2009, the defendant

again telephoned his mother and asked to come home to live with

her in Florida because he could not stay any longer in the place

where he was currently living. She told him that he could come
 10

home and agreed to pay for the rental truck he would need to

transport his belongings. On July 23, the defendant telephoned

his mother between 6 P.M. and 7 P.M. and told her that he was

going to postpone coming to Florida until the beginning of

August because he needed his Social Security money to pay for

gasoline and because he thought he might have "permanent

housing" by Saturday.4 He ended the call by saying, "And no

matter what happens, know I love you." After the killing of the

victim, the defendant spoke again with his mother by telephone;

the telephone call was recorded, and an excerpt was played at

trial. In response to her question about whether he told the

police that God had told him to kill the victim, he told her

that he did not tell them that; he said he told the police that

he "prayed and [God] gave [him] two choices."

The defendant was booked and, after waiving the Miranda

rights, gave two interviews to police that morning. In the

statements, the defendant explained what had happened that

night. The defendant stated that, after the telephone call with

Mons, he was upset and wished to hurt Mons. He played

videogames for a few hours and attempted to sleep but could not.

He stated that he then began praying to God, and God told him

that the only way to protect the victim was to send her to

heaven. He packed many of the supplies into his backpack with

4
July 23, 2009, was a Thursday.
 11

the intent of hurting Mons, but while he was walking to Mons's

house, God told him that he was not to harm Mons, but that he

needed to protect the victim by sending her to heaven. He

stated that, once he was in the house, he had a conversation

with God where he told God that he did not want to hurt the

victim, but God told him that it was the only way to protect her

and that, if the defendant did not send her to heaven, any harm

that befell her in the future would be on the defendant's

conscience. The defendant also expressed his belief that if

Mons's son were released from the residential treatment

facility, he would molest the victim again. The defendant

explained that, after he killed his daughter, he attempted to

kill himself, but was unable to.

During the interviews, the defendant also described his

anger at Mons. He stated that Mons was responsible for making

him homeless, that she had turned her back on him, that she had

been in a sexual relationship with Anthony at the same time she

was having a sexual relationship with the defendant, and that

she did "what she wants, when she wants, with who she wants."

He stated that he wanted Mons "to understand what she had done

to [him]."

Through the defendant's statements to police and Mons's

testimony, evidence was presented regarding the defendant's

mental health history. The defendant stated during the police
 12

interviews that he began receiving disability benefits for

bipolar disorder, severe depression, and suicidal ideation two

years earlier and that he took antidepressant and mood-

stabilizing medications. He recounted that he had taken his

morning medication on July 23, but had not taken his evening

medication that night. He told police that he had attempted

suicide several times, most recently two weeks prior to the

killing, that he had had a major breakdown in 2005, and four or

five hospitalizations for mental health reasons between August

of 2005 and October of 2006. At various times throughout the

interviews, the defendant spoke in a voice that was described as

high-pitched or meek and, as one of the officers explained, at

times, so soft that the officer had to lean in to understand

him.5

Mons testified that she knew the defendant to be depressed

at times and to take an antidepressant, but that he was mostly

depressed when they were having fights about his fidelity. Mons

also testified that, other than the hospitalization following

the argument about his relationship with his ex-wife, she did

not remember the defendant being hospitalized at any point when

he lived with her and that she was not aware of any suicide

attempts by the defendant around 2006. She further testified

5
Video recordings of both interviews were played for the
jury.
 13

that the high-pitched voice he used while being interviewed was

normal for him.

There was also testimony about the defendant's religious

practices. The defendant explained in his statements to police

that he considered himself "spiritual" but did not belong to any

particular religion. He stated that every night he would call

the victim and tell her to say her prayers and that he tried to

take the victim to church but that Mons would not allow it.

Mons testified that the defendant was not a very religious

person, and that she only knew of the defendant going to church

twice during the time that she knew him. A search of the camper

he was staying in at the time of the killing turned up no Bible

or other religious materials.

At trial, the defendant did not contest that he had killed

his daughter, but argued that he lacked criminal responsibility

at the time of the killing. The defendant requested and was

granted funds to retain a forensic psychiatrist and a

psychiatric consultant, but neither the Commonwealth nor the

defendant at trial offered expert testimony regarding the

defendant's mental health or his criminal responsibility.

Discussion. We address in turn each of the defendant's

claims on appeal.

1. Sufficiency of the evidence of criminal responsibility.

"[A] required finding of not guilty by reason of lack of
 14

criminal responsibility may rest on the failure of proof of

criminal responsibility." Commonwealth v. Lawson, 475 Mass.

806, 812 (2016).6 In Lawson, we declared that "[t]he inference

that a defendant is probably sane because most people are sane

is not strong enough alone to permit a rational finder of fact

to conclude that a defendant is criminally responsible beyond a

reasonable doubt". Id. at 814. But we reaffirmed our long-

standing law that the Commonwealth need not call an expert

witness to prove criminal responsibility in every case and "may

prove criminal responsibility through the inferences arising

from the circumstances of the offense, including evidence that

the defendant planned the offense, acted on a rational motive,

made rational decisions in committing the offense and in

avoiding capture, and attempted to conceal the offense or his or

her role in the offense." Id. at 816, citing Commonwealth v.

Cullen, 395 Mass. 225, 229-230 (1985); Commonwealth v. Ricard,

355 Mass. 509, 515 (1969).

To prove a defendant criminally responsible where, as here,

there is no claim of voluntary intoxication, the Commonwealth

must prove beyond a reasonable doubt:

6
We declared in Commonwealth v. Lawson, 475 Mass. 806, 816
(2016), that a defendant's motion for a required finding of not
guilty by reason of lack of criminal responsibility shall be
considered only at the close of all the evidence. Here, the
timing of the motion was without consequence because the
defendant rested without presenting any evidence.
 15

"1. That at the time of the alleged crime the
defendant did not suffer from a mental disease or defect;
or

"2. That if the defendant did suffer from a mental
disease or defect, he nonetheless retained the substantial
capacity to appreciate the wrongfulness or criminality of
his conduct and to conform his conduct to the requirements
of the law."

Model Jury Instructions on Homicide 10 (2013). See Commonwealth

v. Keita, 429 Mass. 843, 849-850 (1999), citing Commonwealth v.

McHoul, 352 Mass. 544, 546-547 (1967). In evaluating the

sufficiency of the evidence, we "examine the evidence in the

light most favorable to the Commonwealth and determine whether

'the evidence and the inferences that reasonably could be drawn

from it were "of sufficient force"' to permit a rational finder

of fact to conclude that the defendant was criminally

responsible beyond a reasonable doubt." Lawson, 475 Mass. at

816, quoting Commonwealth v. Scott, 472 Mass. 815, 820 (2015).

Here, although there was no expert testimony that the

defendant was criminally responsible, the evidence viewed in the

light most favorable to the Commonwealth permitted the jury to

find that the defendant was criminally responsible beyond a

reasonable doubt. There was evidence that the defendant

appeared to be acting normally in the days leading up to the

killing, that he helped Fisher care for Fisher's father, and

that he prepared his "last will and testament" before he left

the camper to commit the killing. There was also evidence that
 16

the defendant carefully planned the killing before he left the

camper by assembling all of the materials he might need during

the assault and placing them in his backpack. He decided to

walk to Mons's house in the rain rather than drive his Jeep

there because he feared the noise of the Jeep would alert the

occupants that he had arrived. When he arrived at Mons's house,

he took the precaution of preventing any land-line telephone

calls for help from the occupants by cutting the telephone lines

both outside and inside the house. By turning off the

electricity in the house, he also ensured that any occupants who

awoke would be left in the dark, leaving him with the potential

advantage of his flashlight. After killing the victim, he

methodically sheathed his knife, wiped his hands, cleaned the

basement light switch with disinfecting wipes, repacked his

backpack, and left the house without waking anyone.

The evidence also supported a motive for the killing

arising from his anger at Mons for making him homeless, for

having a sexual relationship with him and Anthony at the same

time, and for planning to take his daughter with her to North

Carolina to live with Anthony, her new boy friend. In the

second note found in the camper, he wrote that he was "sorry for

what sins" he planned to commit and that he "pray[ed] for gods

mercy," which allows the inference that he recognized that the

killing was morally wrong.
 17

The jury were entitled to discredit the statements made by

the defendant to police that he killed his daughter on a direct

command from God, especially where there was no indication that

he was deeply religious. The jury were also entitled to

conclude that the defendant overstated the severity of his

mental illness where there was evidence that he had falsely

claimed to be suicidal in the past to garner sympathy from Mons

and where he overstated his mental health symptoms and

hospitalizations in speaking with the police.

From this evidence, a rational jury could reasonably

conclude beyond a reasonable doubt that the defendant

appreciated the wrongfulness of his conduct and that he had the

ability to conform his conduct to the law. See Lawson, 475

Mass. at 817-818 (considering circumstances of crime, as well as

motive, in finding sufficiency of evidence of criminal

responsibility). Cf. Commonwealth v. Kostka, 370 Mass. 516, 538

(1976) (evidence of planning and motive supports criminal

responsibility of defendant).

2. Ineffective assistance of counsel. The defendant

argues that his trial counsel was ineffective because, even

though his sole defense was lack of criminal responsibility,

counsel told the jury in his opening statement that the

defendant's conduct was "not psychotic."
 18

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. Peloquin, 437 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." Commonwealth v. Brown, 462 Mass. 620,

629 (2012).

Considering this claim in the context of trial counsel's

entire opening statement, as well as the evidence at trial, we

conclude that counsel's remark was not manifestly unreasonable.

Trial counsel stated in relevant part in opening statement:

"So what we have here is [the defendant] unable to
appreciate the criminality of his conduct nor understand
the requirements of law and conform his conduct to the law
because of really defective thinking. . . . [P]eople with
defective brain or defective minds because of some disease
or defect still can function. So the fact that he
functioned is not manifest of how he was thinking. . . .
[H]e had a discussion with God, a prayer from God, and this
is a debate with God. It's not psychotic. It's a debate
with God. That clearly I suggest to you should show you
that there was a defect in his ability to reason, and a
defect in his ability to perform his conduct under the
requirements of law."
 19

Trial counsel in this case was confronting extensive evidence

that the defendant planned to commit the crime and made

considerable efforts to avoid detection while committing the

crime. He appears to have been attempting to explain to the

jury how the evidence would show that the defendant was not

criminally responsible even though he appeared to make

calculated, reasoned choices. Counsel appears to have been

using the term "psychotic" to refer to individuals who have

significant functional limitations due to a mental illness, and

attempting to contrast that with his view of the defendant as

someone who was highly functional but had a "defect in his

ability to reason" caused by mental illness that resulted in a

lack of criminal responsibility. By admitting that the

defendant's conduct was "not psychotic," trial counsel was not

abandoning the defense of lack of criminal responsibility;

instead, he was attempting to tailor it to the facts he was

given.7 This strategic choice was not manifestly unreasonable in

this context and under these circumstances. See Commonwealth v.

Denis, 442 Mass. 617, 626 (2004) (concession that defendant was

7
The defendant does not challenge trial counsel's decision
not to call a forensic psychologist as a defense witness.
Without such an expert, trial counsel reasonably could have
anticipated that the jury would not hear any opinion that the
defendant was "psychotic," and therefore may reasonably have
sought to address this weakness in his defense in his opening
statement.
 20

shooter not manifestly unreasonably where consistent with only

viable defense); Commonwealth v. Arriaga, 438 Mass. 556, 581-583

(2003) (concession of guilt not manifestly unreasonable where it

"does not undercut viable defenses").

3. Improper remarks by prosecutors in opening statement

and closing argument. The defendant argues that the two

prosecutors made improper remarks in their opening statement and

closing argument. In his opening statement, one prosecutor

referred several times to the victim's death as a "murder" and

to the defendant as having "murdered" the victim. The defendant

objected at the conclusion of the prosecutor's opening

statement. In response, the judge promptly gave a strong

curative instruction in which she explained to the jury that

"murder" is a legal term, that they would be instructed

regarding what the Commonwealth needed to prove for the jury to

find "murder," and that the issue whether the victim was

murdered was ultimately for them to decide, notwithstanding any

opinion of the prosecutor.8

8
The judge's full instruction on this point is as follows:

"During the opening, the Commonwealth several times
characterized the actions of the defendant as that you
would be hearing testimony that he murdered [the victim].
The word murder is a legal term. At the end of this trial,
I'll be giving you specific instructions as to just what it
is that the Commonwealth has to prove to the extent that
that reflected an opinion by the Commonwealth, an opinion
by the Assistant District Attorney that the killing, a
 21

The defendant is correct that it was improper for the

prosecutor to refer to the killing as a "murder" in his opening

statement where the question whether the killing was, in fact, a

murder was the ultimate question before the jury. However, the

judge's instruction on this point was sufficient to cure even

the modest risk of prejudice that resulted from the prosecutor's

statements. See Commonwealth v. Almonte, 465 Mass. 224, 235-236

(2013).

The defendant also claims that the other prosecutor's

repeated statements during her closing argument that the

defendant's behavior was not consistent with mental illness were

unsupported by the evidence and allowed the prosecutor to

"essentially testify[] as an unqualified expert witness."

Similarly, the defendant contends that the prosecutor's

statement that the only evidence that the defendant suffered

from mental illness was from the defendant's "self-serving

statements" denigrated his defense of lack of criminal

responsibility. Neither of these statements was improper.

killing amounted to murder. You should disregard it. This
is not the place for argument and at the end of the case,
you will be able to hear argument and the attorneys may be
able to argue to you that from the evidence that you've
heard of a killing, the elements of murder are met, but to
the extent that there's anything in that that reflected a
personal opinion of murder as opposed to evidence of a
killing ultimately will be for you to determine whether the
Commonwealth has met its burden that any killing amounted
to murder."
 22

As noted earlier, in determining whether a defendant was

criminally responsible, a jury may decide whether the defendant

suffered from a mental disease or defect, and they may reach

this determination without expert evidence based on rational

inferences from the defendant's relevant conduct. See Lawson,

475 Mass. at 807, 815-816. Where, as here, no expert evidence

was offered, a prosecutor does not "testify[] as an unqualified

expert witness" when he or she argues in closing that the

defendant did not suffer from a mental disease or defect based

on evidence such as the defendant's deliberate planning and

orchestration of the killing, and the inconsistencies between

his description of his own mental health history and the

testimony of other witnesses who knew him during the relevant

time period. See Commonwealth v. Lyons, 426 Mass. 466, 473-474

(1998) (prosecutor's comment on credibility of criminal

responsibility defense was proper where based on evidence).

As to the prosecutor's characterization of the defendant's

statements to police regarding his mental health history as

"self-serving," it was not improper for the prosecutor to argue

to the jury that the defendant's statements to police were not

credible because the defendant had a motive to exaggerate or

fabricate his mental health symptoms. The trial judge properly

instructed the jury that, in evaluating the credibility of

witnesses, the jury could consider whether "the witness [stood]
 23

to gain or lose anything depending upon how this case comes

out"; if so, whether "that . . . color[ed] the witness's

testimony"; and whether "the witness ha[d] an incentive or

motive to testify in a certain fashion." See Massachusetts

Superior Court Criminal Practice Jury Instructions § 1.8, at 1–

25 (Mass. Cont. Legal Educ. 1999 & 1st Supp. 2003). The

prosecutor's suggestion to the jury that they should find the

defendant's statements to the police not to be credible because

they were self-serving invited the jury to do nothing more than

what the judge invited them to do in her instructions. See

Commonwealth v. Espada, 450 Mass. 687, 699 (2008).

4. Instruction on the consequences of a verdict of not

guilty by reason of lack of criminal responsibility. The

defendant requested an instruction on the consequences of a

verdict of not guilty by reason of lack of criminal

responsibility as provided in Commonwealth v. Mutina, 366 Mass.

810, 823 & n.12 (1975) (Mutina instruction). The judge gave

such an instruction to the jury, one that followed almost

verbatim the instruction set forth in the current Model Jury

Instructions on Homicide.9,10 See Model Jury Instructions on

9
At the time this case was tried, the current Model Jury
Instructions on Homicide had been issued as proposed revisions,
but had not yet been adopted by the court. Subsequent to the
trial in this case, in Commonwealth v. Chappell, 473 Mass. 191,
206, 209 (2015) (Appendix), we proposed a new provisional
 24

Homicide 11-12 (2013). The defendant did not object to the

content of that instruction.

instruction on the consequences of a verdict of not guilty by
reason of lack of criminal responsibility.
10
The judge instructed the jury regarding the consequences
of a verdict of not guilty by reason of lack of criminal
responsibility as follows:

"As I have previously instructed, your discussion
should be based on the evidence and the law of this case
without regard to the possible consequences of the
verdicts. You may not consider sentencing or punishment in
reaching your verdicts.

"However, I am going to tell you what happens to a
defendant if he is found not guilty by reason of lack of
criminal responsibility. The Court may order the defendant
to be hospitalized at a mental health facility for a period
of 40 days for observations and examination. During this
observation period, or within 60 days after a verdict of
not guilty by reason of lack of criminal responsibility,
the district attorney or other appropriate authorities may
petition the Court to commit the defendant to a mental
health facility or to Bridgewater State Hospital. If the
Court then concludes that the defendant is mentally ill and
that his discharge would create a substantial likelihood of
serious harm to himself or others, the Court may grant the
petition and commit him to a proper mental facility or to
Bridgewater State Hospital for six months.

"Periodically thereafter, the Court reviews the
order of commitment. If the person is still suffering from
a mental illness or defect and is still dangerous, he is
kept in the mental facility. If the person is no longer
mentally ill and can resume a normal life, he is
discharged.

"The district attorney must be notified of any hearing
concerning whether the person may be released, and the
district attorney may be heard at any such hearing.
However, the final decision on whether to recommit or
release the person is always made by the judge. This is
what happens if you find the defendant not guilty by reason
of lack of criminal responsibility."
 25

The defendant now argues that this instruction created a

substantial likelihood of a miscarriage of justice insofar as it

left the jury with the impression that, if they found the

defendant not guilty by reason of lack of criminal

responsibility, the defendant could be released from custody at

any time. In Commonwealth v. Chappell, 473 Mass. 191, 205-206

(2015), we addressed a similar claim where the defendant

proposed a modified Mutina instruction that was not adopted by

the trial judge, who gave the model instruction.11 Although we

set forth a proposed modification to the model Mutina

instruction, we concluded that the Mutina instruction in the

current Model Jury Instructions on Homicide accurately stated

the law regarding the commitment of individuals found not guilty

by reason of lack of criminal responsibility and that the judge

did not err in giving it. Chappell, supra at 205-206, 208-209

(Appendix). We reach the same conclusion here.12

11
In Chappell, 473 Mass. at 205, the defendant requested
that the judge modify the model Mutina instruction in several
respects, including a request that the judge instruct the jury
that "if the defendant were still suffering from a mental
illness and still dangerous, '[t]here is no limit to additional
commitments [following the initial commitment of six months] and
the defendant could be committed for the rest of his life.'"
12
The defendant argues alternatively that trial counsel was
ineffective for requesting a Mutina instruction without more
favorable language. Where the model instruction accurately
reflected the law, counsel neither erred nor was ineffective for
failing to request language that was more beneficial to the
defendant than that provided by the model instruction.
 26

5. Review pursuant to G. L. c. 278, § 33E. In reviewing

the entire record of the case pursuant to our obligation under

G. L. c. 278, § 33E, we address one additional issue. The trial

judge, in instructing the jury on the issue of criminal

responsibility, declared, "[I]f you feel it appropriate, you may

take into account that the great majority of people are sane and

that there is a resulting likelihood that any particular person

is sane." In Keita, 429 Mass. at 846, we directed that such an

instruction should be given in every case where the question of

criminal responsibility is raised. Such an instruction was also

included in the Model Jury Instructions on Homicide effective at

the time of the trial. See Model Jury Instructions on Homicide

51 (1999).

We omitted this instruction in the criminal responsibility

section of the current Model Jury Instructions on Homicide.

Model Jury Instructions on Homicide 1-12 (2013). And in Lawson,

475 Mass. at 815 n.8, we concluded that juries should not be

instructed regarding such an inference due to "the meager weight

of this inference and the risk of juror confusion regarding the

burden of proof." Where the trial judge strongly and

specifically instructed that the burden is on the Commonwealth

to prove criminal responsibility beyond a reasonable doubt and

where there was substantial evidence supporting the jury's

finding of criminal responsibility, we conclude that this
 27

instruction did not create a substantial likelihood of a

miscarriage of justice.

Conclusion. We have reviewed the entire record of the case

pursuant to our duty under G. L. c. 278, § 33E, and find no

reason to exercise our authority to order a new trial or to

reduce the verdict of murder in the first degree. The judgments

of conviction are affirmed.

So ordered.