On triаl for murder in the first degree, assault with intent to rape, armed burglary, armed assault with intent to murder, and assault and battery by means of a dangerous weapon, the defendant, Juan Torres, also known as “Johnny,” asserted that he was not guilty by reason of insanity. The jury rejected this contention and found him guilty of ail charges.
1. Facts. We recite the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in connection with the issues raised. See Commonwealth v. Adams,
On March 16, 1996, the defendant and his brother rented a U-Haul truck and moved a bureau and a desk to the sisters’ home for them. They left between 6:30 and 7 p.m. to the sisters’ hugs, kisses, and thanks. Just before 1 a.m. on March 17, the
The police arrived and Visneau opened the door, screaming, “He’s raping my sister.” The police found Henry in her bedroom, unclothed and bloody. A knife was lodged in her neck, and she died from multiple stab wounds. Death occurred within minutes.
The defendant had heard the police arrive and, in his haste to leave, had left his coat on the bed in Henry’s room. In it were his wallet and keys to the U-Haul. The police followed a trail of blood through the house and out a living room window. They used the coat to set a tracking dog on the defendant’s scent. The dog led the officers to the defendant, who was hiding underneath a nearby car.
After waiving his Miranda rights, the defendant told police
Dr. David Gansler, a neuropsychologist who evaluated the defendant, testified that he suffered from a dysfunction in the frontal portion of the left hemisphere of his brain. The defendant’s language abilities were at the mental retardation level, but were offset by strengths in “paying attention” and visual perception. His “full scale” I.Q. was eighty-three. Because of Ms lack of language skills, the defendant was at a
Dr. Jacob Holzer, a psychiatrist, testified that the defendant suffered from obsessive-compulsive disorder, and that when he ingested drugs and alcohol, these substances combined with his disorder, causing him to have obsessive, recurrent fantasies about sex and violence. According to Dr. Holzer, on the night in question, these thoughts became so vivid that the defendant lost the understanding that they were fantasies and entered a psychotic state. Dr. Holzer testified that the defendant was substantially unable to conform his behavior to the requirements of law (and therefore was not criminally responsible, see Commonwealth v. McLaughlin,
2. The defendant’s criminal history. On cross-examination, the prosecutor elicited from Dr. Gansler a description of antisocial personality disorder.
Q.: “[Y]ou didn’t make a diagnosis of antisocial personality disorder, did you?”5
A.: “I noted antisocial tendencies. Yes, I did.”
Q.: “You don’t know whether any of those [indications of*464 antisocial personality disorder] are in fact things [the defendant] did on other occasions?”
A.: “Not all of them, no.”
Q.: “But some because of this case, right?”
A.: “I did ask, I did get his criminal history, yes. I did know of something.”
On recross-examination, the prosecutor said, “Tell us what you learned about his criminal history.” Over the deféndant’s objection, the judge permitted Dr. Gansler to confirm that the defendant had acknowledged “a long history of trouble with the law” and a five-year sentence for armed robbery.
The Commonwealth asserts that the defendant “opened the door” to this information by asking whether Dr. Gansler’s notation of the defendant’s antisocial tendencies was based on the defendant’s actions in this case. We agree. Once trial counsel had “opened up” the subject, the prosecutor was entitled to explore it in more detail. Commonwealth v. Key,
3. Closing argument. The defendant next clаims that the prosecutor’s closing argument contained improper appeals to emotion and a statement of the prosecutor’s personal opinion of the defendant’s guilt. The relevant portions consist of the following:
“They had a right to sleep in their bed without this man coming in there. . . .
“You have the conscience of the community. She had rights, she had the right to go to bed at night. She had the right to live. He took those rights. She called out, ‘Daddy help me.’ But her father was dead.
“You could answer the call for justice and hold [the*465 defendant] accountable for what he did. He’s guilty as charged.”
As to the reference to the “conscience of the community,” there was no impropriety. Where a charge of murder in the first degree is based on the theory of extrеme atrocity or cruelty, as it was in this case, the jurors serve as the conscience of the community in determining whether the killing merits that description. See Commonwealth v. Raymond,
The remainder of the statements at issue, however, werе improper. The remarks concerning the victims’ rights were improper appeals to sympathy. See Commonwealth v. Lodge,
Improper statements by the prosecutor are reviewed for prejudicial error. In determining prejudice, we consider (1) whether the defendant seasonably objected; (2) the judge’s instructions; (3) the centrality of the error; (4) the jury’s ability to recognize hyperbole; and (5) the strength of the Commonwealth’s case. See, e.g., Commonwealth v. Rosario,
Of these errors, only the references to the victims’ rights were objected to at trial. The judge provided no curative instructions in particular, but forcefirlly instructed the jurors both that “[e] motion or sympathy for one side or the other have no place in these deliberations,” and that they were the sole judges of the facts and should disregard any personal opinions expressed by counsel in closing argument. The central issue at trial was the defendant’s sanity, and the errors in closing did not bear on that point. To a certain degree, jurors are expected to “discount hyperbole and other improper statements,” id. at 495, and the Commonwealth had a strong case for the defendant’s appreciation of the wrongfulness of his actions and his ability to conform his behavior to the requirements of law, see Commonwealth v. McLaughlin,
On balance, we conclude that the prosecutor’s improper closing did not prejudice the defendant. “[W]e are not to be taken as condoning the prosecutor’s statement,” Commonwealth v. Coleman,
4. Jury instruction on voluntary drug use. The defendant next complains that the judge erred in instructing the jury on the ef
The judge instructed the jury as follows:
“[Ijntoxication with either alcohol or drugs or both or drug addiction resulting from the voluntary consumption of alcohol or drugs or both is not by itself a mental disease or defect that would support а verdict of not guilty by reason of insanity. . . . However, you may consider whether or not the defendant had a mental disease or defect separate and distinct from his drug or alcohol consumption and whether such méntal disease or defect existed at the time of the crimes independent of any temporary intoxication or high that the drugs or alcohol mаy have caused. In addition you may consider whether the defendant’s voluntary consumption of drugs or alcohol or both activated a mental disease or defect apart from any addiction. If as a result of the activation of that mental disease or defect the defendant lost the substantial capacity to understand the wrongfulness of his conduсt or to conform his conduct to the requirements of law, then he would lack criminal responsibility. However, if the Commonwealth proves beyond a reasonable doubt that the defendant either knew or had reason to know that consumption of alcohol or drugs would activate a mental disease or defect, then the Commonwealth has met its burden of рroving the defendant criminally responsible. It is not necessary that the Commonwealth prove that the defendant knew or had reason to know that he had a mental disease or defect as such so long as the Commonwealth*468 proves beyond a reasonable doubt that the defendant knew or had reason to know that his intoxication from consumption оf drugs and/or alcohol would trigger inappropriate conduct by him.”
The defendant argues that this instruction caused a substantial likelihood of a miscarriage of justice because there was no evidence to suggest that the defendant knew or should have known that his alcohol and drug use would cause him to lose awareness that his violent and sexual fantasiеs were only fantasies. This is incorrect. Dr. Holzer, on direct examination, stated that the defendant had reported that, “unlike most other occasions” of his drug and alcohol use, on the night of the killing, he lost the realization that his obsessions were fantasies, and the boundary between fantasy and reality broke down for him. The jury properly could have inferred from thе doctor’s use of the word “most” that this transformation had happened before, and that therefore the defendant either knew or should have known of that possibility.
The defendant next claims error in the judge’s failure to instruct the jury that their determination of what the defendant “should have known” is a subjective question that takes into account the possibility that the defendant’s mental condition “might have interfered with his ability to understand what a normal person in the same situation would have reasonably understood.” Commonwealth v. Ruddock,
5. Motion for a new trial. The defendant moved for a new trial when he discovered that a juror who had checked “none” in response to the question on her juror questionnaire asking
After an evidentiary hearing at which counsel had the opportunity to present questions to the juror through the judge, the judge determined that the juror did not intentionally lie on the form but simply made a mistake, and also determined that she was credible when she testified that the matter never even occurred to her during the course of the trial. He found that if she had been asked about the matter before trial, she would have truthfully responded that it would not affect her ability to be a fair and impartial juror, and pointed out that if anything, her status as a criminal defendant in a drug case would have concerned the Commonwealth more than the defendant.
In denying the defendant’s motion for a new trial, the judge concluded, “I am confident, based upon my interview with [the juror], that she took her duties seriously and gave the defendant a fair trial.” This determination is a question of fact that rests with the trial judge. See Commonwealth v. Duran,
6. G. L. c. 278, § 33E. After reviewing the record in its entirety, we find that the verdict of murder in the first degree was supported by the evidence, and conclude there has been no miscarriage of justice. Therefore, we decline to grant relief under G. L. c. 278, § 33E.
Judgments affirmed.
Order denying motion for a new trial affirmed.
Notes
The defendant was found guilty of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder, with armed robbery as the underlying felony.
The sisters’ father had died eight years earlier.
The defendant does not contest the voluntariness of his statement.
Antisocial personality disorder is characterized primarily by a pattern of disregard for, and violation of, the rights of others, as indicated by repeatedly engaging in criminal acts, lying, aggressive behavior, and lack of remorse. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 649-650 (4th ed. 1994) (unchanged in 4th ed. rev. 2000). Antisocial personality disorder generally does not constitute a mental disease or defect that could negate criminal responsibility. See, e.g., Commonwealth v. Stockwell,
Of course, leading questions generally should not be used in direct (or redirect) examination, although the trial judge retains wide discretion to allow them. See P.J. Liacos, Massachusetts Evidence § 3.5, at 59-61 (7th ed. 1999).
The defendant requested the following: “Intoxication with alcohol and/or drugs is not by itself a ‘mental disease or defect’ that will support a finding of insanity. However, under some circumstances a person’s consumption of alcohol and/or drugs may activate a latent mental disease or defect, apart from the intoxication itself. Such a latent mental disease or defect, once activated, may be the basis for a finding of insanity, unless the Defendant knew or had reason to know that the alcohol and/or drags would activate that illness.”
For this reason, we need not address the defendant’s further claim that the judge erred in instructing that the defendant was guilty if he knew or should have known that the drugs or alcohol would trigger “inappropriate conduct.”