On May 26, 1979, the defendant allegedly stabbed Albert Zalucki twenty-one times. Zalucki died, and the defendant was indicted for murder in the first degree. He was convicted by a jury on March 16, 1982, of murder in the first degree, and was sentenced to a term of life imprisonment. He now appeals his conviction pursuant to G. L. c. 278, § 33E.
The defendant alleges error on a number of grounds, but primarily relies on his claims that (1) he was deprived by a ruling of a motion judge of an opportunity to present his demeanor in an unmedicated condition to the jury; (2) the trial judge failed to take appropriate steps during the trial to determine his continued competency to stand trial; (3) the trial judge failed to instruct the jury correctly; and (4) the trial judge neither ruled on the question of the voluntariness of certain statements made by the defendant nor submitted the issue to the jury. The defendant also asks us to exercise our power under G. L. c. 278, § 33E, to order a new trial or to mitigate the degree of guilt. We reverse the judgment of conviction.
There was evidence of the following facts. On May 26, 1979, at approximately 3 a.m., two police officers responded to a call to go to 23-B Van Burén Avenue in Springfield. When the officers proceeded inside, they found the body of Zalucki. They heard a voice from the second floor. Looking up, they saw at the top of a staircase the outline of a large male. When they identified themselves as police officers, the man responded, stating, “I called the police. I stabbed him. I’m Peter Louraine.” At the trial, one of the arresting officers identified the man who spoke as the defendant. Several officers present at the scene testified that the defendant appeared calm, and recognized one of the officers as a high school classmate. A bloodied knife found by police officers near the body of Zalucki was placed in evidence.
Deborah Flebotte, a stepsister of the victim, testified that Louraine lived at 23-B Van Burén Avenue with a second *30 stepbrother, John Regan. 1 She testified that Zalucki had visited Louraine and Regan at the apartment and that Louraine, several hours before the murder, told her that Zalucki would be stopping by later.
The Commonwealth presented expert medical testimony that the victim had been stabbed twenty-one times. The wounds were concentrated in the area of the neck, chest, and abdomen, and had been inflicted rapidly. There were also “defense wounds” on Zalucki’s hands. Either one of two different wounds was sufficient to cause death. The expert testimony also established that Zalucki would have experienced pain from the wounds for a period of approximately thirty minutes before losing consciousness.
The defendant did not contest the facts as to the homicide, but instead relied on a defense of lack of criminal responsibility. He introduced evidence which outlined a long history of mental illness, commencing in his early teens, which continued up to the day of the crime. The Commonwealth did not dispute that the defendant suffered from a mental illness at the time of the crime; rather it questioned the severity of the illness. 2 Strangely, neither the defendant nor the Commonwealth introduced expert medical testimony concerning the defendant’s mental capacity at the time of the crime, although the fact of the defendant’s various commitments to mental institutions was put before the jury.
The defendant’s twin brother Philip Louraine, testified that his brother and he 3 held rather bizarre religious beliefs. He testified that they believed that they were prophets of God and had to defend themselves against demons. Philip *31 recounted that the defendant had told him after the homicide that “A1 [Zalucki] was the devil and that A1 was going to hurt him, so he had to kill Al.” Philip also testified that the defendant had reported experiencing hallucinations, had been committed to mental hospitals, had a history of ingesting drugs (including marihuana, lysergic acid diethylamide, and mescaline), 4 had acted in a strange and violent fashion on several occasions, and had attempted suicide several times.
Much of this testimony was corroborated by the testimony of the Reverend John A. Koonz, a Roman Catholic priest, Joel Louraine, the defendant’s brother, and Peggy Louraine, the wife of a third brother. They confirmed Philip’s testimony that the defendant had a long history of acting in a strange fashion and did hold bizarre religious beliefs, and that the defendant had suffered hallucinations and engaged in many violent episodes.
Hospital records concerning the defendant’s admissions to Northampton State Hospital and other mental institutions were introduced. The Northampton records indicated that the defendant, at his own insistence, was admitted on January 24, 1979, after cutting his wrist with a razor blade. The records show that the defendant was experiencing “flashbacks” attributable to the ingestion of mescaline and that he was diagnosed as suffering from “[schizophrenia, chronic undifferential type.” He was discharged on February 7, 1979. The defendant was readmitted on March 13, 1979, and a provisional diagnostic impression was entered that he was suffering from drug abuse. He was released the next day. The provisional diagnosis was changed to schizophrenia, but it was thought that there was no “need for [an] in-patient stay.” He was released as an outpatient to the mental health care facility at 23-B Van Burén Avenue. A mental health assistant at Northampton State Hospital testi *32 fled that the defendant’s mood shifted greatly during the periods when he was admitted to the hospital.
A registered nurse assigned to the Hampshire County jail, Joseph Leonczyk, also testified concerning the defendant’s behavior between September 14 and September 28, 1979, while he was awaiting trial. He testified that the defendant appeared to be nervous and that his hands trembled. He recalled the defendant’s telling him that “inner forces were bombarding his mind” and that he had suicidal thoughts.
1. Involuntary medication of the defendant during trial. There was no evidence that the defendant was taking any antipsychotic medication at the time of the homicide. The defendant argues that, since his mental capacity to commit the crime charged was at issue, the Commonwealth should not have been permitted to administer drugs, over his objection, which visibly affected his demeanor and mental processes at trial. 5 He asserts that he was deprived of the opportunity to place his true demeanor before the jury on the crucial issue of mental capacity and, as a consequence, was denied a fair trial.
The defendant filed a pretrial motion requesting that, if he were found competent, he be permitted to attend the trial in an unmedicated condition. 6 After a hearing, a motion judge of the Superior Court denied the motion and later entered written findings. He found that the defendant suffered from a mental illness known as chronic paranoid schizophrenia and that, while in custody, he was receiving antipsychotic medication in various forms and doses. These *33 doses had been increased gradually by State medical personnel and were considered to be “heavy.” He found that the defendant’s behavior and his symptoms of mental illness were “being controlled to some extent by the medication,” but that the medication reduced the defendant’s alertness and ability to concentrate. He also found that the defendant would not be competent to stand trial if the defendant did not receive medication. 7
Evidence was offered at a competency hearing held one week before trial, which indicated that the defendant’s condition remained unchanged. 8 After the hearing, the trial judge found that the defendant was psychotic and experienced psychotic episodes, during which he had “auditory and visual hallucinations” and “delusional and bizarre ideas.” He also found that medication, while not eliminating the episodes, enabled the defendant “better to control himself and to cope with these episodes.” Expert medical testimony at the pretrial hearing indicated that tjie defendant was then receiving “heavy” or “maximum” dosages of Stelazine, another antipsychotic medication.
We start with the proposition that few rights are more fundamental in our jurisprudence than that of an accused “to present . . . [his] version of the facts.”
Washington
v.
Texas,
Further, it is an established and universally accepted rule that, when the defendant’s sanity is at issue, the trier of fact is entitled to consider the defendant’s demeanor in court.
Commonwealth
v.
Devereaux,
In a case where an insanity defense is raised, the jury are likely to assess the weight of the various pieces of evidence before them with reference to the defendant’s demeanor. Further, if the defendant appears calm and controlled at trial, the jury may well discount any testimony that the de *35 fendant lacked, at the time of the crime, substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. See Commonwealth v. McHoul, supra at 546-547. This tendency may render also valueless the defendant’s right to testify on his own behalf. See In re Pray, supra; State v. Murphy, supra at 766-767.
The ability to present expert testimony describing the effect of medication on the defendant is not an adequate substitute. At best, such testimony would serve only to mitigate the unfair prejudice which may accrue to the defendant as a consequence of his controlled outward appearance. It cannot compensate for the positive value to the defendant’s case of his own demeanor in an unmedicated condition. Moreover, “[i]f the state may administer tranquilizers to a defendant who objects, the state then is, in effect, permitted to determine what the jury will see or not see of the defendant’s case by medically altering the attitude, appearance and demeanor of the defendant, when they are relevant to the jury’s consideration of his mental condition.” State v. Maryott, supra at 102.
Proper respect for the role of the jury as “the sole judges of the credibility and weight of all of the evidence on the issue of insanity,”
Commonwealth
v.
Kostka,
The view we take is consistent with cases from other jurisdictions which have considered the precise question before us. In State v. Maryott, supra at 97, the court reversed the conviction where the defendant had been forced to take medication which visibly affected his demeanor during trial. The court emphasized the importance of the defendant’s demeanor in an unmedicated state to the presentation of an insanity defense. Id. at 101-103. 10 In State v. Hayes, supra at 462, the court held that the defendant could be compelled to take medication only “if the jury is instructed about the facts relating to the defendant’s use of medication and if at some time during the trial, assuming the defendant *37 so requests, the jury views him without medication for as long as he is found to have been without it at the time of the crime.” In In re Pray, supra, the court reversed the conviction where the State had administered drugs to the defendant without fully disclosing to the defendant or his counsel what effect they had on the defendant. Chief Justice Barney, writing for the Vermont Supreme Court, stated that “[a]t the very least, [the jury] should have been informed that he was under heavy, sedative medication, that his behavior in their presence was strongly conditioned by drugs administered to him at the direction of the State, and that his defense of insanity was to be applied to a basic behavior pattern that was not the one they were observing. In fact, it may well have been necessary, in view of the critical nature of the issue, to expose the jury to the undrugged, unsedated Gary Pray, at least, insofar as safety and trial progress might permit.” Id. at 257-258. These cases support the result we reach here. 11
We do not suggest that “a new trial must be granted in every criminal case . . . where the appearance of the accused before the jury is marred by some mental, physical, or emotional impairment, regardless of the nature of the impairment, or the means by which it was brought about. Each case of this type must be decided on its own facts.”
State
v.
Murphy,
We turn to consider those issues which may arise at a new trial.
2.
Voluntariness of confession.
Prior to trial, a hearing was held before the trial judge to determine whether certain statements made by the defendant to the police at the time of his arrest should be suppressed. The defendant’s motion sought to suppress his statement, made just before his arrest,
*39
that he had stabbed the victim.
14
While the motion and hearing focused on whether the defendant voluntarily and intelligently waived his rights under
Miranda
v.
Arizona,
We believe that, in light of the evidence of insanity before him at trial, the trial judge also should have addressed the issue whether the statements given were the product of a rational intellect.
Commonwealth
v.
Cole,
3.
Jury instructions.
We believe that, because of the trial tactics adopted by defense counsel, the judge did not deliver instructions concerning whether the jury could consider the defendant’s drug use in deciding whether the murder was committed with deliberately premeditated malice aforethought or extreme atrocity or cruelty,
Commonwealth
v.
Gould,
In a case raising a defense of insanity, defense counsel is likely to be confronted with difficult decisions concerning trial tactics. Review under G. L. c. 278, § 33E, is not intended to relieve the defendant of the consequences of those decisions absent a substantial risk of a miscarriage of justice. At a new trial, the burden of requesting instructions in accordance with Commonwealth v. Gould, supra, and Commonwealth v. Sheehan, supra, will be on defense counsel. Provided that request is timely, the judge should deliver instructions in accordance with those opinions. 15
4. Insufficiency of the evidence concerning premeditation. The defendant also argues that the conviction of mur *41 der in the first degree should be reduced to murder in the second degree because of the insufficiency of the evidence concerning premeditation. The defendant did not object to those instructions which permitted the jury to convict the defendant of murder in the first degree on a theory of premeditation. Our review of the transcript reveals that there was sufficient evidence of premeditation produced during the Commonwealth’s case-in-chief, assuming that the jury found the defendant to be legally sane.
Judgment reversed.
Verdict set aside.
Notes
Number 23-B Van Buren Avenue was the address of a mental health care facility for deinstitutionalized mentally ill persons.
During its closing argument, the Commonwealth conceded that the defendant had been mentally ill since the age of sixteen, but noted that it was a matter of degree.
The brother also testified that he was taking substantial doses of medication to control his own schizophrenia.
During rebuttal, the witness Flebotte also testified that one week before the crime she had observed the defendant acting strangely after he had ingested mescaline.
The defendant was held at Bridgewater State Hospital for most of the time from his arrest on May 26, 1979, until the trial. The motion judge found that at all times since his arrest he was given antipsychotic medications in various forms and various doses. Among the medications administered were prolixin, thorazine, mellaril, and trilafon. Elavil and artane, which are not antipsychotic medications, were also administered. The administration of antipsychotic drugs to the defendant continued during the trial.
The defendant also requested that any competency examination occur while he was in an unmedicated condition.
The motion judge ruled that the defendant was not entitled to be brought to trial in an unmedicated condition in order to present properly an insanity defense. He reasoned that the effects of the medication on the defendant could be brought to the attention of the jury through expert medical testimony. There was no such evidence offered either by the Commonwealth or by the defense.
The defendant did not renew before the trial judge his motion that he be allowed to appear in an unmedicated condition. In these circumstances, we would usually examine only the record before the motion judge.
Commonwealth
v.
Cinelli,
We note that the defendant in this case, like the defendant in Kostka, had a long history of mental illness. Although the defendant failed to put forth live expert testimony on the issue of mental responsibility, there was extensive evidence in the hospital records and from lay witnesses of the defendant’s mental illness. Indeed, the Commonwealth conceded the fact of mental illness. In this context, the failure of the Commonwealth to offer expert testimony (despite the many psychiatric examinations of the defendant by court order) is inexplicable. See Commonwealth v. Kostka, supra at 539-540 (Hennessey, C.J., and Kaplan, J., dissenting).
The decision in
State
v.
Maryott,
In
State v. Law,
In
Commonwealth
v.
Lombardi,
We note, however, that cases involving amnesia and insanity are not entirely equivalent. With amnesia, the potential for fraudulent claims is great. In contrast, this potential is minimal where the defendant, as is the case here, has a long history of mental illness and is being prescribed substantial doses of medication to enable him to control his illness. Further, the conduct of the Commonwealth is fundamentally different in the two types of cases. In cases involving incompetency and insanity, the Commonwealth is taking affirmative steps to bring the defendant to trial in an altered condition. See State v. Maryott, supra at 102.
We note that we are not deciding today whether the Commonwealth may administer medication to criminal defendants involuntarily to ensure their competence to stand trial. See
Guardianship of Roe,
The Commonwealth agreed not to introduce several statements made by Louraine after his arrest.
The defendant makes much of the fact that an expert witness for the Commonwealth testified on voir dire to the difficulty of distinguishing between drug use and mental illness as the cause of Louraine’s acts. The record does not disclose why this expert never testified before the jury. We note, however, that defense counsel’s posture at trial was that the acts were caused by Louraine’s mental illness and not by drug use.
The defendant also claims error in that the judge submitted to the jury the issue whether the defendant suffered from a mental disease or defect at the time of the act even though the Commonwealth had conceded the point. The defendant did not raise the point below. In any case, we perceive no error.