COMMONWEALTH VS. DESHAWN CHAPPELL.
Supreme Judicial Court of Massachusetts
September 11, 2015. - November 23, 2015.
473 Mass. 191 (2015)
Present: GANTS, C.J., SPINA, BOTSFORD, DUFFLY, & HINES, JJ.
Suffolk.
At a murder trial, testimony from one deoxyribonucleic acid (DNA) expert about the results of DNA testing performed by another analyst did not violate the defendant‘s constitutional right to confront witnesses against him, where the testifying expert, as part of her duties in the State police crime laboratory, independently read all the raw data and the reports produced by the other analyst, made interpretations, and ensured that there was agreement between her findings and those of the other analyst; where the expert testified to her own opinions or conclusions regarding the DNA that had been collected; and where the defendant was able to cross-examine the expert meaningfully about the reliability of the underlying DNA testing procedures and data. [199-202]
At a murder trial in which the defendant‘s mental state was in issue, the judge did not err in declining to permit the defendant‘s expert witness to testify on direct examination about the contents of the defendant‘s medical records, where defense counsel chose not to introduce the medical records in evidence. [202-205]
At a murder trial in which the defendant‘s mental state was in issue, the judge did not err in giving the jury an instruction on the consequences of a verdict of not guilty by reason of lack of criminal responsibility that was in accordance with the Model Jury Instructions on Homicide (2013); however, this court proposed a provisional jury instruction that omits references to specific time frames of commitment for observation and mentions the potential for successive commitment orders that could span the duration of the defendant‘s life in a context that accurately reflects the law governing such commitments. [205-206]
At a murder trial, the judge did not err in declining to limit his instruction to the jury on consciousness of guilt to the issue of the defendant‘s mental state at the time of the crime, where, in the absence of a stipulation, the Commonwealth was required to prove beyond a reasonable doubt that the defendant killed the victim; and where evidence of the defendant‘s consciousness of guilt was relevant to this point and to an assessment of his mental state and his criminal responsibility. [206-207]
This court declined to exercise its authority under
INDICTMENT found and returned in the Superior Court Department on March 24, 2011.
The case was tried before by Jeffrey A. Locke, J.
Stephen Neyman for the defendant.
Matthew T. Sears, Assistant District Attorney (Edmund J. Zabin, Assistant District Attorney, with him) for the Commonwealth.
BOTSFORD, J. On January 20, 2011, Stephanie Moulton, a residential counsellor at a mental health facility in Revere, was killed while she was at work. The defendant, a resident of the facility, was charged with her murder. Principally at issue at the defendant‘s subsequent jury trial was his mental state at the time of the killing; the defendant presented a defense of lack of criminal responsibility. On October 28, 2013, the jury found the defendant guilty of murder in the first degree on the theory of deliberate premeditation.
In his appeal from the conviction, the defendant argues that the trial judge erred by (1) permitting the Commonwealth to present evidence concerning deoxyribonucleic acid (DNA) testing through an expert witness who had not performed the DNA testing herself; (2) impermissibly limiting the direct examination of the defendant‘s primary mental health expert witness; (3) providing the jury with an inadequate instruction regarding the consequences of a verdict of not guilty by reason of lack of criminal responsibility; and (4) failing to limit the jury‘s consideration of evidence of consciousness of guilt solely to the issue of the defendant‘s mental state at the time the crime was committed. He also requests relief under
1. Background.1 a. The offense. We summarize the facts the jury could have found. Prior to January, 2011, the defendant was a resident of Perkins House, a moderate-intensity, residential mental health facility in the Charlestown section of Boston.2 Following an altercation between the defendant and another resi-
On January 20, 2011, despite the closed house policy, the defendant remained at Seagull House past 9 A.M. because he was scheduled to have a meeting at 1 P.M. with his “team,” a group that included the victim and her supervisor, Colette Deneumostier.4 Deneumostier arrived at Seagull House at approximately 8:30 A.M. on January 20, but left shortly thereafter to perform work-related errands. The victim also arrived around the same time or a little later. When the Seagull House staff member who had been in charge of the facility the previous night left sometime after 9 A.M., the victim and the defendant were the only two people remaining. At approximately 10 A.M., Deneumostier spoke to the victim by telephone; at no point during that conversation did the victim report any concerns about the defendant‘s mental status. Deneumostier tried to contact the victim by telephone again several times before she (Deneumostier) returned to Seagull House at 11:30 A.M., but the calls went unanswered.
When Deneumostier arrived at the facility, she heard the fire alarm sounding, saw smoke, and telephoned the Revere fire department or 911. When fire fighters and police officers responded, they found no one inside the building, but they did observe a stove with two jets left on the high setting, one of which had smoke emanating from it; burnt paper on the kitchen floor; and charred debris in one of the bedrooms, including a gray, left boot. In addition, there was a large amount of blood on the floor in the
“Babycake, what ups? I still want to kick with you when I get something house next year. Are you down with that? How the kids? WB if you can. Can you go somewhere, kick with me, movies, out to eat?”
Below that writing was a message in the victim‘s handwriting that read: “Not just because I work here, but for many reasons, this is inappropriate.” Police also recovered from an office located in the lower portion of the building a green notebook that contained the victim‘s handwriting; at the time it was recovered, the notebook was opened to a page referencing the defendant.
At approximately 12:30 P.M. the same day, the victim‘s body was found in the parking lot of St. George‘s Greek Orthodox Church (St. George‘s) in Lynn.5 The victim‘s pants and underwear were pulled down, and she was wearing one gray boot on her right foot that matched the left boot recovered from Seagull House; her left foot was bare other than a white sock. The victim‘s body was covered with a bed sheet that came from the defendant‘s bedroom at Seagull House. The victim had sustained sharp force injuries to her neck and blunt impact injuries to her head, torso, and upper extremities, but the cause of death was blood loss attributable to a long slash wound to the neck, which severed the sternocleidomastoid muscle, the jugular veins, and the carotid arteries.
Video surveillance from St. George‘s dated January 20, 2011, showed a vehicle, identified as belonging to the victim, enter the St. George‘s parking lot at approximately 11:32 A.M., drive to the area where the victim was later found, and leave the parking lot at approximately 11:34 A.M. The video recording also showed that, while the vehicle was parked, an individual stepped out of the driver‘s side, made a path around the rear of the vehicle to the passenger‘s side, returned to the driver‘s side, proceeded once more to the passenger‘s side, and eventually drove away.6
Around 1 P.M. on January 20, 2011, the defendant visited a cousin in the Dorchester section of Boston and asked her for some money and a place to stay for a couple of days; he was unsuccessful in securing either one. During the visit, the defendant‘s cousin saw a brown stain on the defendant‘s pants and a brownish or red stain on the defendant‘s sweatshirt, and she noticed that he kept his hands covered with his sleeves. When the defendant left the house, he was seen standing in front of the victim‘s vehicle, which he later abandoned. After leaving his cousin‘s house, the defendant went to a clothing store where he stole a white hooded sweatshirt and a hat, and then traveled by train to Braintree and inquired about an extended-stay room at a hotel. He then telephoned his grandmother, who lived in the Roxbury section of Boston, and asked if he could come to her house, insisting that he did not kill the victim and that his previous girl friend did,7 and later traveled by public transportation to the building where his grandmother lived.
Police officers were waiting for the defendant in the lobby of his grandmother‘s building, his grandmother having informed the police of his impending arrival. Following some resistance, the defendant was arrested and taken into custody. Police officers handcuffed the defendant and placed him in a chair in the lobby. While the defendant was seated, and as a police officer was administering Miranda warnings to him, the defendant blurted out, “The Chinese kid did it.” The defendant did not otherwise exhibit bizarre or psychotic behavior or appear or sound delusional during the time he was in the lobby.
The defendant was transported to a Boston police station and then to the police station in Revere. During the trip to Revere, the defendant was quiet and calm, but crying, and when asked if he was all right, he said that people had been chasing him all day with guns and that he was worried for his family. He was asked if he knew why he was in police custody, and he responded that it was “because of what happened at the house.” Testing of a sample of blood located on fingernail scrapings taken from the defendant‘s right hand revealed that the sample contained a
b. The defendant‘s mental state and criminal responsibility. The defendant was thirty at the time of trial in October, 2013. According to his mother and grandmother, while in high school, the defendant had regularly attended school and church, was outgoing and well-dressed, played sports, and worked at a part-time job. He graduated from high school around 2002 and worked as a sales person at a clothing store and then as a bar back at a convention center in Boston. Around 2004, his mother noticed that he no longer cared about his appearance and that he had become withdrawn. The defendant began to have trouble sleeping and would call his mother regularly in the middle of the night, asking why he was hearing voices in his head. He also stopped attending weekly family dinners at his grandmother‘s house.
The defendant was first hospitalized in 2006, after he informed his mother that he wanted to go to the hospital because he felt that he might hurt someone. His mother took him to the emergency department of Massachusetts General Hospital (MGH),8 and personnel at MGH kept the defendant for observation for two to three weeks. When he was discharged, he went to live with his grandmother. He was prescribed medication, which he eventually stopped taking because the side effects caused him difficulties with swallowing and speaking, and also caused involuntary tremors. Only months after the first instance, the defendant was again hospitalized at MGH. Around 2006, he was diagnosed with schizophrenia9 and, in that year, became a client of the Department of Mental Health (department). In 2006 and 2007, the defendant was hospitalized briefly at Whidden Memorial Hospital. From 2006 to 2009, the defendant lived primarily with his grandmother. According to his grandmother, the defendant‘s mental health condition deteriorated during that period, even though he resumed taking medication. For example, the defendant was hearing voices and he tried to get the voices out of his head by eating large amounts of food and by trying to burn them out. At one point, he also became too frightened to leave the house. In 2009,
David Thomson, a program coordinator employed by North Suffolk Mental Health Association (North Suffolk), first met the defendant when he was a resident of Perkins House. Thomson made referrals of the defendant to the Boston Emergency Services Team (BEST)10 in October, 2009, and in July and September, 2010, because the defendant appeared disorganized and was “decompensating” on those dates. The defendant‘s medical record at North Suffolk indicated that on the date of the July, 2010, BEST referral, he had an increase in hallucinations, felt paranoid, believed that members of the staff were listening to his conversations, and made verbal outbursts regarding the taking of his powers. That record also reflected that the defendant had a history of traumatic brain injuries, lead poisoning, and substance abuse.
Michael Swinchoski, a licensed mental health counsellor employed by North Suffolk, first met the defendant in 2007. Swinchoski believed the defendant suffered from disorganized schizophrenia, and that he responded to an inner stimulus unprompted by any external circumstances. In December, 2010, and January, 2011, Swinchoski was working with the defendant in an attempt to allow him to live in his own apartment, which Swinchoski thought would help reduce the defendant‘s level of stress and, thus, ameliorate his symptoms. On January 19, 2011, one day before the killing, Dr. Daniel Debowey, a psychiatrist employed part-time by North Suffolk, met with the defendant for the first time; Debowey was going to become the defendant‘s new psychopharmacological treater. During the meeting, the defendant was wearing socks on his hands, which Debowey noted because he knew that the defendant had been diagnosed with schizophrenia or schizoaffective disorder and, at times, bizarre elements of clothing can be a sign of relapse. However, the defendant did not report any auditory hallucinations, nor did he appear to be responding to internal stimuli, and Debowey was not left
On January 21, 2011, one day after the victim was killed, Dr. Naomi Leavitt, a forensic psychologist employed by the department, conducted a court-ordered competency evaluation of the defendant. In Leavitt‘s opinion, the defendant failed to understand her explanation of the fact that what he said to her would not be confidential, and made statements not reflective of reality including that he did not have a mother, that he had only finished the first grade, that he had never been in a psychiatric hospital or been diagnosed with a mental illness, that there were “rascals” out to hurt him, and that he would wake up in the morning with bruises on his body. During the evaluation, the defendant became increasingly agitated. Leavitt questioned the defendant‘s competency to stand trial and recommended that he be further evaluated at Bridgewater. A few weeks thereafter, Dr. Charles Carroll, the director of forensic services and psychology at Bridgewater, performed two assessments of the defendant‘s competency to stand trial and his need for further hospitalization. Carroll diagnosed the defendant with schizophrenia, undifferentiated type.11 Carroll opined that the defendant was not competent to stand trial due to thought disorganization related to his mental illness and that the defendant required further hospitalization.
The defendant‘s primary mental health expert at trial was Dr. David Werner, a psychologist. Werner met with the defendant on three occasions and reviewed the multiple medical and psychiatric records of the defendant, including records of all the defendant‘s hospitalizations, and police reports; he also interviewed family members. Based on his personal meetings and review of the data, Werner diagnosed the defendant with paranoid schizophrenia. Werner opined that the defendant suffered from hallucinations and delusions that made him unable to distinguish between voices in his head and memories of a person‘s voice, and that the defendant had been decompensating since July, 2010. The defendant told Werner that on January 20, 2011, he (the defendant) heard a voice telling him to kill the victim and therefore he choked her, and when he thought that she was still alive, he obtained a knife and inflicted the wounds that caused her death. Werner ultimately concluded that the defendant was not crimi-
The Commonwealth‘s expert witness, Dr. Martin Kelly, a psychiatrist, conducted a criminal responsibility examination of the defendant and opined that, at the time of the killing, the defendant did not suffer from a mental disease or illness that interfered with his ability to appreciate the wrongfulness of his conduct or conform his conduct to the law. According to Kelly, when a person actually experiences auditory hallucinations, the hallucinations are part of a larger, consistent, delusional system or “back story.” Kelly opined that, although the defendant claimed to experience auditory hallucinations that caused him to kill the victim, the hallucinations were not part of a larger delusional system and were probably made up. Kelly‘s opinion was also based on his view that the defendant‘s self-interested acts to try to cover up the crime and his participation in it demonstrated that the defendant had the capacity to appreciate the wrongfulness of his conduct. Finally, in reviewing the records and notes prepared by the North Suffolk mental health staff and clinicians who had seen and interacted with the defendant from July, 2010, to January, 2011, Kelly observed no decompensation by the defendant.
Discussion. 1. Substitute DNA expert. On appeal, the defendant argues that his constitutional right of confrontation guaranteed by the Federal and State Constitutions was violated when the Commonwealth‘s DNA expert, Lynn Schneeweis, was permitted to testify about the results of DNA testing performed by another analyst, Sarah Hughes, who was no longer employed by the State police crime laboratory (crime lab) at the time of trial and was not available to testify.12 The argument fails.
Schneeweis held a master‘s degree in forensic science, was a trained DNA analyst, and also was the section manager for forensic biology at the crime lab, overseeing six or seven of the crime lab‘s units, including the criminalistics and crime scene units and the DNA unit. Within the DNA unit, she supervised approximately twenty-five to thirty DNA analysts. Schneeweis
At trial, the defendant objected at the outset of Schneeweis‘s testimony generally on confrontation and chain of custody grounds;15 with respect to confrontation, he argued that Schneeweis could not testify to any opinions or conclusions regarding the DNA
With regard to a defendant‘s right of confrontation, as the defendant recognizes, we have permitted experts to rely on and testify to their own opinions based on “the results of tests, experiments, or observations conducted by another” since Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 532 (1986), decided nearly thirty years ago. See Commonwealth v. Barbosa, 457 Mass. 773, 784-785, 790 (2010), cert. denied, 563 U.S. 990 (2011). Cf. Commonwealth v. Nardi, 452 Mass. 379, 383, 389-391 (2008) (opinions of substitute medical examiner based on autopsy report and photographs relating to autopsy that he did not perform). The critical issue with respect to an expert, including in particular a DNA analyst, is whether the defendant is able to cross-examine the expert in a meaningful way regarding possible flaws relating to the underlying data that forms the basis of his or her opinion. See Barbosa, supra at 790-791. Compare Commonwealth v. Greineder, 464 Mass. 580, 594-599 (2013) (defendant had meaningful opportunity to cross-examine Commonwealth‘s expert about reliability of data), with Commonwealth v. Tassone, 468 Mass. 391, 399, 401-402 (2014) (defendant could not meaningfully cross-examine Commonwealth‘s expert witness where DNA was analyzed at different laboratory in different State from where expert worked).16
Similar to the defendant in Barbosa, 457 Mass. at 791, and particularly like the defendant in Greineder, 464 Mass. at 597-598, the defendant here certainly was able to cross-examine the Commonwealth‘s expert Schneeweis meaningfully about the reliability of the underlying DNA testing procedures and data,
The defendant is correct that under Massachusetts law, an expert witness is not permitted to testify on direct examination to facts or data that another, nontestifying expert has generated, or to the nontestifying expert‘s own opinion, even though this information may be an important part of the basis of the testifying expert‘s opinion. See, e.g., Greineder, supra at 592, 601-602. See also Barbosa, 457 Mass. at 785; Nardi, 452 Mass. at 390-391;
2. Limited direct examination of defendant‘s primary mental health expert. At trial, the defendant‘s counsel argued that the defendant’ mental health experts, and in particular Dr. Werner, were permitted under our case law to testify on direct examination about the contents of the defendant‘s medical records, including medical diagnoses and opinions about the defendant‘s mental state that the expert had read and may have relied on in forming the expert‘s own opinion, even though the records themselves were not in evidence and the defense did not wish to
On appeal, the defendant repeats the claim that it was error to preclude Werner from testifying, during his direct examination, to opinions about the defendant‘s mental illness and mental status more generally that were contained in his medical records. He does not focus his argument on the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, but contends that this limitation violated his separate right to present a defense that is protected by these same constitutional guarantees. We disagree.
In Department of Youth Servs. v. A Juvenile, 398 Mass. at 531, we ruled for the first time that an expert may “base an opinion on facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion.” However, that case also makes clear that although an expert may rely on facts or data that have not been admitted but would be admissible in evidence, the expert may not testify to the substance or contents of that information on direct examination. Id. See Tassone, 468 Mass. at 399 (“Our evidentiary rules permit the facts or data underlying the opinion to be elicited only by the defendant on cross-examination and, where this door has been opened by the defendant, by the prosecution on redirect
The limitation just discussed on the direct examination testimony of an expert witness is a common-law evidentiary rule that operates in both civil and criminal cases and applies to both sides. See Department of Youth Servs. v. A Juvenile, 398 Mass. at 531-532;
3. Mutina instruction. At trial, the defendant asked for a jury instruction about the consequences of a verdict of not guilty by reason of lack of criminal responsibility (Mutina instruction). See Commonwealth v. Mutina, 366 Mass. 810, 823 & n.12 (1975). The defendant‘s request, however, was that the judge modify the Mutina instruction that is part of the Model Jury Instructions on Homicide (2013) in several respects; most substantively, he sought the addition of language that would inform 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.”22 The judge did not adopt the defendant‘s proposed instruction, but gave the model Mutina instruction. See Model Jury Instructions on Homicide, supra at 11-12.
On appeal, the defendant argues that the judge‘s Mutina instruction created a substantial likelihood of a miscarriage of justice. He claims that by including references to the number of days the defendant might be committed for observation and also referencing the initial six-month commitment without a mention of the possibility that the defendant could remain committed for the rest of his life, the instruction was unfairly one-sided, underestimated the likely period of commitment the defendant would face, and was likely to distract the jury from their essential fact-finding role. The information about the consequences of a verdict of not guilty by reason of lack of criminal responsibility included in the judge‘s Mutina instruction, however, was accurate; the judge did not err in giving it in response to the defendant‘s request for a Mutina charge. See Commonwealth v. Johnston, 467 Mass. 674, 702-703 (2014). Nonetheless, the core of the defendant‘s criticism — that the model Mutina instruction underestimates the potential, and in the defendant‘s view, likely, length of confinement of a defendant found not criminally responsible
In the Mutina case itself, this court did not prescribe or even suggest any specific form of instruction. Moreover, the court has made clear that a Mutina instruction need not mention the specific time periods for observation or commitment that are included in the civil commitment statutes.23 See Callahan, supra at 827-828. A Mutina instruction is designed to avoid unnecessary speculation by the jury and ensure that they comprehend the possible consequences of a verdict of not guilty by reason of lack of criminal responsibility — and in particular, to understand “what protection they and their fellow citizens will have if they conscientiously apply the law to the evidence and arrive at a verdict of not guilty by reason of [lack of criminal responsibility] — a verdict which necessarily requires the chilling determination that the defendant is an insane killer not legally responsible for his acts.” See Mutina, 366 Mass. at 821-822. On reflection, we think an instruction that omits references to specific time frames for observation and mentions the potential for successive commitment orders that could span the duration of the defendant‘s life in a context that accurately reflects the law governing such commitments may better accomplish these purposes. Accordingly, we propose a provisional instruction along the lines set forth in an Appendix to this opinion.24
4. Instruction on consciousness of guilt. The defendant requested that the trial judge omit a jury instruction on consciousness of guilt because the defense “pretty much stipulated that [the defendant] committed the homicide” and was “not contesting it.” The judge denied the request, reasoning that there was no actual stipulation that the defendant had committed the homicide, and
On appeal, the defendant‘s argument is more nuanced. He does not contend that a consciousness of guilt instruction should have been omitted in its entirety but rather that the judge, in exercising discretion to give such an instruction, committed reversible error in not limiting the jury‘s consideration of consciousness of guilt evidence to the issue of the defendant‘s mental state at the time of the crime, i.e., his criminal responsibility or lack thereof. We do not agree. As the trial judge noted, although the defendant did not contest that he had killed the victim, the Commonwealth was still required to prove beyond a reasonable doubt that he did so and the evidence of consciousness of guilt was relevant to this question. See Commonwealth v. Lowe, 391 Mass. 97, 108 n.6 (1984) (evidence of consciousness of guilt is relevant to whether homicide occurred). Cf. Commonwealth v. Denis, 442 Mass. 617, 624 (2004) (no error for judge to give identification instruction, although identification not contested; necessary for Commonwealth to prove beyond reasonable doubt identification of defendant as person who committed crime, notwithstanding concessions by defense at trial). Moreover, as the defendant‘s argument on appeal recognizes, actions taken by the defendant following the killing of the victim that reasonably could be interpreted to reflect consciousness of guilt25 were relevant to an assessment of the defendant‘s mental state and whether he was criminally responsible. Accordingly, an instruction on consciousness of guilt was entirely proper in the circumstances of this case. See Commonwealth v. Cardarelli, 433 Mass. 427, 437 (2001).
5. Relief under
Judgment affirmed.
PROVISIONAL MUTINA INSTRUCTION1
Consequences of Verdict of Not Guilty by Reason of Lack of Criminal Responsibility. As I have previously instructed, your decision should be based solely on the evidence and the law of this case, without regard to the possible consequences of the verdict[s]. You may not consider sentencing or punishment in reaching your verdict[s]. However, I am going to tell you what happens to a defendant if he [or she] is found not guilty by reason of lack of criminal responsibility.
First, the court may order the defendant to be hospitalized at a mental health facility for a period of observation and examination. During this observation period or in any event within sixty 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 concludes that the defendant is mentally ill and that his [or her] discharge would create a substantial likelihood of serious harm to himself [or herself] or others, then the court will grant the petition and commit the defendant to a proper mental facility or to Bridgewater State Hospital, initially for a period of six months. At the end of the six months and every year thereafter, the court reviews the order of commitment. If the defendant is still suffering from a mental disease or defect and is still dangerous, then the court will order the defendant to continue to be committed to the mental facility or to Bridgewater State Hospital. There is no limit to the number of such renewed orders of commitments as long as the defendant continues to be mentally ill and dangerous; if these conditions do continue, the defendant may remain committed for the duration of his [or her] life.
If at some point the defendant is no longer mentally ill and dangerous, the court will order him [or her] discharged from the mental health facility or from Bridgewater State Hospital after a hearing. 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 defendant is always made by the court.
This is what happens if you find the defendant not guilty by reason of lack of criminal responsibility.